JUDGMENT
Kendall, J.
1. The three appellants. Sunder Lal. Rati Ram and Ram Din, have been convicted of an offence under Section 304. Penal Code, and have been sentenced to three years rigorous imprisonment each, and they have appealed against their convictions and sentences. The facts which the learned Sessions Judge has found to be proved are as follows: On the afternoon of 31st March 1934. Ram Sarup, the deceased, drove his cart through a field belonging to Sham Lal and in consequence of this had a quarrel with Sham Lai and his sons, Ratti Ram and and Ram Din. Nothing happened at the time, and Ram Sarup went home. Later in the afternoon Ram Sarup was called from his house by the appellants, who told him to go and settle the matter, and he therefore went to Sheo Shanker’s chabutra where the three appellants attacked Ram Sarup hit, him on the head and so killed him. During the attack Mahadeo and Balak Ram came tip and attacked Ram Sarup’s assailants, with the result that Rati Ram. Ram Din and Sheo Shanker, who was also present at the time, received injuries. Bhola Nath, the father of Ram Sarup who had gone along with him to Sheo Shanker’s chabutra made a report at the thana 7 miles away a it 8 p.m. the same evening, in which he stated the case which has been believed by the Sessions Judge, with the exception that he made no mention of Balak Ram. The learned Judge considered that in these circumstances the three appellants were guilty of culpable homicide, as their offence came within the fourth exception to Section 300 Penal Code.
2. Mr. Roy, for the appellants, has argued that his clients acted in self-defence inasmuch as the evidence shows that they themselves were attacked by Ram Sarup and his friends, and that though they undoubtedly hit Ram Sarup on the head and caused his death, they only did so after they themselves had been attacked. I have considered the evidence, and there are certainly some circumstances which support Mr. Roy’s theory of the fight. In the first place, it appears to me to be certain that there was a considerable fight. The medical evidence shows that Ram Din. appellant, received a bruise on the side of his, head, another injury on his right shoulder and a third on his finger. Rati Ram was hit on the shoulder and Sunder Lai on the leg and Sheo Shanker had both the bones of his right fore-arm broken and three bruises on the head as well as one on the upper-arm. In the second place, it is not conceivable that the fight began by Ram Sarup being hit on the head and falling down dead, and that it then developed into a melee between the supporters of the two sides. The general fight must have taken place before Ram Sarup was knocked down, and It was only brought to an end when be was knocked down, and it was realised that one of the parties to the fight had been seriously injured. It follows therefore that the injuries to Ram Din Rati Ram, Sunder Lal and Sheo Balak had been caused before Ram Sarup had been knocked on the head, and as it is almost incredible that Ram Sarup alone should have caused all these injuries, and as we know from the evidence that Balak Ram and Mahadeo were witnesses of the fight and also took part in it, the conclusion is irresistible that there were three, and possibly four, on each side, and it is at least possible that Ram Sarup’s party were the aggressors. In fact one or two of the prosecution witnesses have said that Ram Sarup struck the appellants before they struck him.
3. Another part of the prosecution story which it is difficult to believe is that in which Bhola Nath says that the three appellants came to Ram Sarup’s house and called him out to Sheo Shanker’s chabutra. If they had intended to have a settlement with Ram Sarup they would in all probability have had it then and there. If Ram Sarup however went to Sheo Shanber’s chabutra it seems that he went there accompanied by his friends, that the quarrel took place there, that there was a general fight and that Ram Sarup received blows in the course of that fight which resulted in his death.
4. I cannot agree with Mr. Roy however that in these circumstances the appellants have committed no offence as they were justified in striking Ram Sarup on the head in order to protect themselves. There was in fact just such a sudden fight as is contemplated in exception 4 to Section 300, Penal Code. Everyone was trying to hit one of the opposite side and nobody thought about the private right of self-defence. It is not at all clear, though it may be as I have said quite probable, that Ram Sarup’s party were the aggressors, and in short, though I think the circumstances of the fight were different from what the learned Judge found to be true the law which he has applied is the right one, and the appellants are guilty of culpable homicide, though, their offence is not so serious as that which the Judge has found to be proved. The result is that the sentences passed on them ought to be reduced.
5. I therefore allow the appeal to this extent that, while maintaining the convictions, I reduce the sentence passed on each of the appellants from three; rigorous imprisonment to one year’s rigorous imprisonment. The appellants are on bail and must surrender to their sureties.