1. The two appellants Bikram Singh and Nanhey Singh have been convicted, the first under Section 302 read with Section 114, I.P.C., and the second under Section 302, I.P.C., and sentenced to transportation for life.
2. That Narain the deceased was injured by one blow from the instrument called kasi (Ex. 1) there can be no doubt, for the medical evidence makes it clear that the three injuries caused on Narain were very likely caused by one blow. The witnesses called on behalf of the prosecution have not been able to controvert the suggestion of the defence that only one blow was given to Narain. Having considered the whole of the evidence in the case, we have no doubt that the findings of the learned Session Judge that a fight took place between Ram Prasad and Mulaim Singh on the one side and Bikram Singh and Nanhey Singh on the other, was a correct finding.
3. Narain who was admittedly a friend and a partisan of Mulaim Singh came up, and it may well be that the accused mistook Narain as having come up to support the side of Ram Prasad and Mulaim Singh. Nanhey Singh gave one blow with the kasi which was in his hand, and as proved by the witnesses for the prosecution was used by him for scraping grass.
4. The evidence in the case clearly indicates that the culpable homicide was committed without any premeditation in a sudden fight, and in the heat of passion upon a sudden quarrel that had taken place on account of the water from Ram Prasad's field escaping into Bikarm's.
5. Although the learned Assistant Government Advocate suggests that a man who attacks another with the instrument like Ex. 1, must be deemed to have acted in a cruel and unusual manner, we are unable to accept that suggestion. It appears that only one blow was struck by the assailant, with whatever instrument happened to be in his hand, and which in this case was the kasi Ex.1 and the fact that the assailant did not give more than one blow show in our opinion that the accused did not take any undue advantage or act in a cruel and unusual manner.
6. We must state that it is not suggested, on the contrary, it is admitted that there was no enmity between Narain and the accused, nor did the accused have any motive in attacking Narain. We accept the finding of the learned Sessions Judge that the attack was not a premeditated attack. In view of the above circumstances we are of opinion that the offence which the appellants committed was an offence punishable under Section 304, I.P.C. We alter the conviction of the appellants to one under Section 304, and sentence Bikram Singh to eight years' rigorous imprisonment and Nanhey Singh to three years' rigorous imprisonment. We pass a lesser sentence on Nanhey Singh by reason of the fact that he is a young man of eighteen and must have been acting under the influence of Bikram Singh, otherwise the appeal is dismissed.