Harries, J. - (1.) THIS is an appeal by ten per. sons who were tried by a learned Assistant Sessions Judge and a jury upon a charge under Section 304, Penal Code, read with Section 149 Penal Code. It is to be noted that there was no charge framed under either Section 147 or Section 148, Penal Code.
(2.) EVENTUALLY the jury returned a verdict of guilty of an offence under Section 325 read with Section 149, Penal Code against all the appellants, and an offence under Section 328, Penal Code against appellants Nos. 6,7, 8 and 9. The learned Assistant Sessions Judge accepted this verdict and sentenced each of the appellants to 4$ years' rigorous imprisonment for the offence under Section 125 read with Section 149, Penal Code, and passed no separate sentence against the four appellants convicted under Section 823, Penal Code. The case for the prosecution was that at about 10 p. m. on 9th March 1948, the appellant Apel Shaikh rushed into the house of the com -plainant Ainal Shaikh driving before him a heifer belonging to Ainal. At that time Aziz, Ainal's sod, was attending to cattle. When Apel saw Aziz he told him that his heifer had damaged Apel's gram. A quarrel arose between the parties, and it is said that Apel became furious and called to other persons to come with lathis to deal with Aziz. Upon this, it is said, the other appellants armed with lathis rushed to the house of Ainal and chased Aziz who entered the inner part of the house and took shelter in a room facing west. On hearing the uproar Majid who was asleep inside a room facing east came out on the verandah. He was attacked by the appellants and injured. Other members of Ainal's house came to defend Majid and there was a general marpit.
(3.) IT was found that Majid was seriously injured and remained nnoonsoious during the night. On 11th March a complaint was made to the Sub -Divisional Magistrate who examined the complainant and took cognizance of an offence under Section 323, Penal Code and issued process. Majid1 however unfortunately died and the matter was reported to the police and a first information report was recorded. The police conducted an investigation and finally submitted a charge sheet for an offence under Section 304 read with Section 149, Penal Code. The trial by a Judge and a jury resulted as I have already indicated.;