JUDGMENT
Soni, J.
1. On 20th October 1917, Maro, wife of Bhag Singh, Jat of village Dulesinghwala, an old woman of sixty years made a report at midday at police station Zira of an occurrence which had taken place at chhawela that morn-Ing in village Vakilwala. She said that she had come to village Vakilwala with her daughter’s husband Eamail Singh since the last five at six days in order to see her brother Bhara Singh. That morning at about ohhawela she was preparing to go back to her village along with Karnail Singh, her son-in-law, and she went to the well to bid farewell to her brother and nephews who bad been working there. Accord-ing to her, her brother Bhura Singh was driving the gadi whereas her nephews Chanan Singh, Mukhtiar Singh and Kartar Singh were ploughing the fields nearby. She and Earnail Singh were yet talking to Bhura Singh when Mangal Singh eon of Bholla Singh, resident of Vakil-wala, accompanied by his sons Kehr Singh and Pritam Singh reached the well and told Bhura Singh to leave the well. Her brother Bhura Singh said to him that bis turn was on the next day and asked him to let him work the well that day. A quarrel ensued. Her nephews Chanan Singh, Mukbtiar Singh and Kartar Singh came np on hearing the alarm. Kehr Singh gave a thruat with a barchha into the chest of Kartar Singh who fell down. Pritam Singh and Mangal Singh struck barchha and gandasa blows to Kartar Singh who lay f allen> Her brother and nephews tried to rescue him whereupon all the three- assailants inflicted injuries on them as well. She mentioned that Eehar Singh who was cutting charn had reached the spot on hearing the noise and he was also injured while rescuing. Her nephew Eartar Singh died on the spot.
2. Mangal Singh was arrested that day, while the other two, Pritam Singh and Kehr Singh his sons were abaoonding. Mangal Singh was tried and acquitted by the Sessions Judge on 15th March 1918. Pritam Singh was arrested on and July 1948, while Kehr Singh was arrested the next day, that is, 3rd of July. They were put up for trial before the Sessions Judge of Feroze. pore who has convicted them Under Section 305, read with Section 81, for the murder of Kartar Singh and sentenced them to transportation for life. He also sentenced them to two years’ rigorous imprisonment Under Section 335, read with Section 34, for causing injuries to Bhura Singh, Mukhtiar Singh and Ohanan Singh. The convicts have appealed. [After discussion of the medical and other evidence, the judgment proceeds as follows;]
3. From the various changes and improvements which have been made in the statements of witnesses in the present trial, I come to the conclusion that it was Mangal Singh who was watering the fields from the well, as the lambardar found his field watered and the complainants came and wanted him to give up watering the fields on which Mangal Singh must have been threatened and he raised a hue and cry. His sons who bad gone up for cultivation purposes in Nilewala village which is 200 or S60 karams from the place of occurrence came on hearing bis cries. The doctor has found on Mangal Singh fourteen injuries, Three of the injuries are con- used wounds, one is on the head and another is on the chest and another on the scapula. The sons came and they had a right to defend their father from attack by three persons who -were at him. Therefore, they cannot be held guilty of an offence Under Section 803.
4. From the evidence it is not possible to know as to who had the sharp edged weapon with which injuries on the deceased were caused. Two persons are supposed to have given the fatal injuries to the deceased, while as a matter of fact the injury is only one which proved fatal. It is impossible to know who inflicted the fatal injury. The probability seems to be that there was one person who had the sharp edged weapon while the others were armed with lathis or danga with which the injuries on the three complainants were inflicted.
5. The three accused had merely a right of private defence, but after the danger to Mangal Singh’s life bad been over it appears that most the very large number of injuries given to or three complainants inflicted. We cannot apply B. Si in this case for persons who indicted these injuries. We cannot say for certain who exceeded the right of private defence, nor can it said who broke the arm of Mukhtiar Singh, of who inflicted the injury on the head of Bhure Singh which fractured his tight pariatal bone. In these circumstances, the only conclusion that can be arrived at in the case ia that the three appellants were guilty of causing simple injuries.
6. The next question is whether they are guilty Under Section 323, Penal Code or Section 324. They would be guilty Under Section 323
U hurt Is caused by means … of any Instrument which, used as a weapon of offence, is likely to cause death….
A lathi has been held by a Division Bench of the Lahore High Court consisting of Sir Shadi Lai, C. J. and Addison J. in Preman v. Emperor A.I.R. (17) 1928 Lah. 93 : 38 Cr.L.J. 966, to be a lethal weapon. This was followed by another Division Bench consisting of Addison and Milton JJ. in Sewa Singh v. Emperor A.I.R. (17) 1930 Lab. 490 (81 Cr.L.J. 1069). Whether lathi is a weapon which ia likely to cause death depends on the lathi. In this case we do not know with what instrument the accused persona were armed nor what was the weight or strength of the lathis which they had when injuries were inflicted on the complainants. Whether the lathi used is or is not an instrument likely to cause death is a question of fact in each case and as we have not got the lathis used in this case, we cannot Bay that the injuries were caused by an instrument likely to cause death. There is also the absence of certainty as to who caused the grievous injuries.
The conviction in this case, therefore, would be Under Section 828, Penal Code,
7. I would, therefore, set aside the conviction of the appellants Under Sections 803 and 826 and convict them under Section 323, Penal Code and sentence each of the two accusedPritam Singh and Kehr Singhto one year’s rigorous imprisonment,
Falshaw, J.
8. I agree.
