Reuben, J - (1.)The appellants Bikram Mahton and Siharam Mahton have been convicted under Section 148, Indian Penal Code and the other appellants under Section 147, Penal Code, and all the appellants have been convicted under Section 24, Cattle Trespass Act. In addition, Bikram Mahton and Siyaram Mahton have been convicted under Secs.302 and 324, Indian Penal Code, respectively, the former being sentenced under Section 302 to transportation for life and the latter under Section 324 to rigorous imprisonment for three years. The remaining appellants have been sentenced each to rigorous imprisonment for two years under Section 147. No separate sentence has been imposed in respect of the convictions under the other sections.
(2.)The case arises out of an occurrence which took place in village Bhojali, police station Gopalganj, at about 5 p.m. on 16 September 1945. The occurrence is described as follows by Nandkumar (P.W. 2), father of the deceased Kailash, who lost his life in the occurrence, in his first information report lodged at the police station at about midnight of the 16th-17 September: I state before you, the Sub-Inspector of police, that I have taken settlement of a parti land belonging to Narsingh Rai in village Bhojali for grazing cattle at an annual rental of Rs. 8. Sitaram Mahto and Jamuna Mahto, who are residents of the same village, were forcibly (without my permission) grazing cattle in my [parti land. A little before sunset, my son Kailas and I went there and forbade them to graze cattle. They did not pay any heed. Then we began to surround the cattle. In the meantime they sent information to the village through a boy. Upon this, Bikram Mahton, son of Parsuram, Siaram Mahton son of Parsuram, Mahanth Mahto son of Fena Mahto, Jhapsi Mahto, son of Bisun Mahton, and Ramparsan Mahton son of Dharichan Mahto, armed with lathis and bhalas arrived there. Bikram and Siyaram were armed with bhala and the rest were armed with lathis. They came to help Jamuna and Sitaram. They surrounded me and my son, snatched away the cattle and began to assault us. Bikram Mahton dealt a bhala blow on the back of my son. When ha fell down, Jamuna and Sitaram also assaulted him with lathis. Siaram Mahto gave me a bhala blow on the right elbow. At that very moment, my son fell down and died. Finding that he was dead, all of them took to their heels.
(3.)The Sub-Inspector, who recorded the first information, visited the village the next day at 10 a.m. and inspected the spot. Upon the parti land, which is claimed by Nandkumar to have been settled with him for the purposes of grazing, he found some marks of grazing. He did not find any blood on the alleged place of occurrence, and this has been made, the subject of strong comment in view of the main injury on the person of Kailash, deceased, which was a piercing wound, 1 "x " X chest cavity deep, on the left side of the back in the middle, an injury which pierced both the layers of the pleura, the left lung and passed right through the lungs, entered the pericardium and passed through the left portion of the heart, finally reaching the diaphragm on the left side. The explanation for the absence of blood appears from the evidence of the Sub-Inspector, who found that the spot was a watery one, with water standing to a depth of 3," the soil was sandy and, in addition to this, there is evidence that there was rain after the occurrence.