- (1.)Appeal No. 427 of 1926. This is an appeal by two persons, Adam Ali Taluqdar and Sher Gazi, who have been sentenced by the Sessions Judge of Barisal, agreeing with the unanimous verdict of the jury, to seven years rigorous imprisonment under the second part of Section 304, I.P.C.
(2.)The facts are as follows : There are two persons, Ekram Ali and Akkel Ali, who own a piece of land each having an eight-annas share in it. By arrangement Ekram Ali possessed the northern half and Akkel Ali the southern half. Akkel Ali is the husband of the sister of Ekram Ali. Ekram Ali mortgaged the land to Adam Ali Taluqdar, one of the appellants now before us, and Adam Ali was in possession. Then Akkel Ali sold the land, to Ekram Ali. Ekram Ali wanted to redeem the mortgage and tendered the money to Adam Ali. There were some disputes about the payment of the money, but Ekram Ali cultivated the land. On the 25 December 1925, Adam Ali, Sher Gazi and Abdul Gafur, who is the appellant in a connected appeal, and one Tahir Khan, brought a number of reapers and proceeded to cut the coarse paddy grown on the northern half of the land by Ekram Ali and began to cut the paddy. Ekram Ali and his two brothers Adam Ali, Monta Ali and his cousin Mahammad, came to the spot. The two parties faced each other and Mahammad flung a spear at Tahir Ali which missed him. Abdul Gafur called out to the party to kill someone. Tahir Mahammad then struck Mahammad with his spear in the stomach and Sher Ali and Adam Ali also stabbed him. He fell down and died on the spot. The defence was that of innocence and enmity. Mr. Taluqdar has argued that Section 34 of the I.P.C. can have no application to the second part of Section 304 under which the appellants have been convicted. His argument is this:
(3.)The second part of Section 304 runs as follows: or with imprisonment of either description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.