JUDGMENT Allsop, J.
1. The appellants Perana, Mewa, Happu and Toiyan have been sentenced to death tinder Section 302 of the Indian Penal Code for murdering one Bhikam Singh. They have appealed and we also have before us the reference made by the learned Sessions Judge on the subject of the confirmation of the sentence. There can be no doubt that Bhikam Singh was attacked and killed on the morning of July 10, 1935. The story for the prosecution is that he had been into the fields to relieve himself and was returning when be was attacked by the appellants who had a grudge against him because he being the headman of the village had accused them of committing thefts and had threatened them.
2. The story for the defence is that Perana alone caused the injuries which resulted in the death of Bhikam Singh and that he caused those injuries in exercise of the right of private defence. The story is that Bhikam Singh had dumped some rubbish in Perana's field and that he got angry when Perana remonstrated with him and asked him to remove it. It is said that he first attacked Perana with a lathi and then when Perana seized that, picked up a spade and that thereupon Perana hit him with a lathi in order to protect himself. The learned Sessions Judge has disbelieved the story told by the defence.
3. We have no doubt that it is not a true story in so far as it sets forth that Perana acted in exercise of the right of private defence. The medical evidence shows that Bhikam Singh had received two blows on the head and one on the right arm. He also had an abrasion on the inside of the left shin bone, but it is not necessary that that injury was caused with a lathi. It would appear that the person or persons who attacked Bhikam Singh hit him first on the arm when he attempted to ward a blow off his head and then when his arm was disabled gave him two blows on the head. Bhikam Singh's skull was fractured, and he died as the result of the injury. It is admitted that Perana at least caused these injuries. We do not think that they could possibly have been caused in exercise of the right of private defence. The story told by Perana is very improbable and the man himself appears to have had no injuries at all. The rubbish heap, it is said even by the defence witnesses, had been in the field for over 20 years. It is quite probable that (he prosecution witnesses are speaking the truth when they say that Bhikam Singh remonstrated with the accused for committing theft and that the accused were displeased with him. On the other hand, one of these witnesses Lakhan Singh says that there was certainly a dispute between Perana and Bhikam Singh when the latter was going out into the fields that morning because Perana asked Bhikam Singh to remove the rubbish from his field and Bhikam Singh refused to do so. This witness says that nothing happened at the time but that the appellants attacked Bhikam Singh when he was returning. We think that it is almost certain that there must have been some quarrel about this matter and that that was the immediate cause of the trouble between the parties. We do not think, however, that Bhikam Singh attacked Perana and that Perana acted in exercise of the right of private defence.
4. The remaining question is whether the other three appellants took part in the attack. The witnesses for the prosecution, Shiam Lal, Lakhan Singh, Kitab Singh and Abdul Sattar say that the other three appellants did take part in the attack. There was another witness Abdullah who is mentioned in the First Information report and who gave evidence before the Committing Magistrate but who was not called as a witness by the prosecution in the Court of Session. We have examined him in this Court under the provisions of Section 540 of the Code of Criminal Procedure. He says that all four appellants were present but that Perana alone attacked the deceased and that he called to the other three appellants to help him but they were in a hut about 20 paces away and did not move to his assistance. We cannot find that there is any reason why this witness should not be believed. He impressed us as being a truthful witness. We think that his story is quite a probable one and that Perana alone made the attack. The injuries caused to Bhikam Singh were after all not numerous and might easily have been caused by one man who was armed with a lathi. It is true that there is no particular reason why the other witnesses for the prosecution should not be believed, but as all the appellants were present and as they are all related or connected with each other it is possible that the other witnesses named them all because they suspected that the other three appellants were in sympathy with Perana, The mother of the deceased Musammat Mewa impressed the learned Sessions Judge as a truthful witness but she did not arrive on the scene till afterwards and she would not know whether the three appellants other than Perana were concerned in the actual attack. Abdullah has said that all four appellants ran away when the alarm was raised and if some of the witnesses saw all the appellants running away they might have concluded, that they were all concerned in the at' tack.
5. On the whole we think where there is considerable doubt whether Mewa, Happa and Toiyan were concerned in the offence which was committed and we must give them the benefit of the doubt and acquit them.
6. Perana is certainaly guilty of having caused the injuries to Bhikam Singh and we do not believe that his conduct can be excused upon the ground that he acted in exercise of the right of private defence. The only question remaining is whether the offence was one of murder or not. We may point out that the appellants were charged with murder by the Committing Magistrate but that the Sessions Judge amended that charge and framed another charge under Section 304 read with Section 34 of the Indian Penal Code. It is possible that he made a mistake in writing the figure 304 instead of 302 especially as he was not entitled to acquit the appellants of the offence of murder without trying them by reducing the charge. But on the other hand, the wording of the body of the charge does not suggest an offence of murder but only an offence of culpable homicide not amounting to murder. The appellants were charged with causing such bodily injuries as they knew likely to cause the death of Bhikam Singh.
7. We think, however, that this question of the intention of the Sessions Judge in framing the charge is of no particular importance in the present case because to our mind the facts which we believe to be true are not such as to constitute an offence of murder but only an offence of culpable homicide not amounting to murder. We do not think that there is any reason for supposing that Perana, intended to cause death or to cause such injuries as would be sufficient in the ordinary course of nature to cause death or to do an act so imminently dangerous that it must in all probability cause death.
8. It is not suggested that the offence could be murder because in the particular case of Bhikam Singh the injuries would be likely to cause his death. We think. that this is a case where it can be said that Perana must have known that he was likely to cause death, but that would not make the offence, one of murder. It would be merely an offence of culpable homicide not amounting to murder. The use of lathis is certainly dangerous but it is not so dangerous that one would suppose that anybody would in the ordinary course think that death is a probable cause of the use of a lathi. Our experience is that lathis are frequently used and result in nothing more than injuries which are simple hurts or at the most grievous hurls.
9. We find that Perana is guilty of an offence of culpable homicide not amounting to murder. We acquit him of having committed murder if it can be said that he was charged with that offence and we sentence him under Section 304 of the Indian Penal Code to rigorous imprisonment for a period of five years.
10. The other three appellants are in our opinion not guilty. We acquit them and direct that they shall be immediately released unless it is necessary to detain them in connection with some other matter.