JUDGMENT Yorke, J. - This is an appeal by Nathoo Brahman, Nathoo Ahir and Hardayal who have been convicted by the learned Sessions judge of Moradabad of offences under Sections 304 read with Section 34 and 323 I.P.C. and sentenced on the former count to 10 years rigorous imprisonment and on the latter count to 9 months' rigorous imprisonment, the sentences to run concurrently. 2. This case has arisen out of a dispute about a field in village Afzalpur Lut in the Gajraula Circle of the Moradabad district. It seems that one Paima Brahman had a field for the ploughing of which he borrowed the bullocks of Nathoo Brahman Appellant. It seems further that Nathoo Brahman had the idea that by reason of the cultivation of the field having been done with his bullocks the crop was his and he asserted possession over the plot. The Appellant Nathoo Ahir is said to be a friend of Nathoo Brahman and there came to be some ill feeling between him and Paima Brahman because Paima Brahman left Nathoo Ahir in charge of his house while he was away from the village and on his return found a sum of money butted in the ground missing and accused Nathoo Ahir of having stolen it. It was the prosecution case that a month before the occurrence of the 24th August, 1941, which led to this prosecution Nathoo Brahman, Nathoo Ahir, Hardayal and one Budhu Ahir forcibly irrigated the plot in dispute as a result of which Paima made a report to the police. Paima at this stage found that he was unable to enforce his possession if indeed he really had any possession and he accordingly gave the field on batai to Uda Brahman deceased who had three sons. The idea seems to have been that Uda might be able to recover possession of the plot, but it seems that he never did so because the other party were people able to hold their own with Uda and his family. 3. According to the prosecution story, on the 24th August, 1941, at about noon an occurrence took place close to the disputed field. 3. According to the prosecution story, on the 24th August, 1941, at about noon an occurrence took place close to the disputed field. The learned Sessions has come to the conclusion relying upon the evidence and also upon the discovery of blood on the ground by the investigating officer that the occurrence took place in the held of Uda which was next door to the field in dispute. He has held that what had happened was that Nathoo Brahman was ploughing the field in dispute while his friends Nathoo Ahir and Hardayal were present on the spot, doubtless to give him moral support. He has further held that Uda who was at work in his own field next door passed some remarks about the way in which Nathoo Brahman was cultivating a field which did not really belong to him and as a result Nathoo Ahir, Hardayal and Nathoo Brahman left the field in dispute, came into the field of Uda and attacked him and thereafter a fight took placed between the three Appellants on the one side and Uda and Chhajju on the other. The learned Sessions Judge in arriving at this conclusion has had to disbelieve the prosecution witnesses on an important point, namely, their allegation that Uda had actually got possession of the field in dispute. He has however believed those witnesses in regard to the fight except in one respect, namely, that he was not satisfied that a fourth man Budhu took part in the fight on the side of the Appellants. In arriving at this conclusion he also considered the evidence of defence witness Kallu who deposed that the fight was really only between Uda and Chajju on one side and Nathoo Ahir and Hardayal on the other. Nathoo Brahman taking no part. 4. Now so far as the Appellants Nathoo Ahir and Hardayal are concerned, there can be no doubt of their participation in the fight which undoubtedly took place because they had sustained injuries. Nathoo aged 25 received four injuries including one on the head, while Hardayal had five injuries including one on the head. On the other side Uda aged 50 had sustained 22 injuries, while Chhajju aged 26 had sustained 8 injuries. Nathoo aged 25 received four injuries including one on the head, while Hardayal had five injuries including one on the head. On the other side Uda aged 50 had sustained 22 injuries, while Chhajju aged 26 had sustained 8 injuries. Uda had some injuries on the head but they were not serious and his death was caused by fractures of rib and sternum, one fractured rib unfortunately having pierced a lung and caused haemorrhage and death. 5. It seems to me that bearing in mind the findings of the learned Sessions Judge and the view he has taken of the reliability of the witnesses for the prosecution on important points, the essential point which he had to consider was whether there was any real corroboration and I should say independent corroboration--of the case against Nathoo Brahman Appellant. It is of no use to refer in this connection to the evidence of the prosecution witnesses because those witnesses have been disbelieved on an important point and despite their evidence the accused Budhu was acquitted. The learned Sessions Judge really regards as corroboration the probability, as he considers it that Nathoo Brahman must have taken part because he was interested in the quarrel. Now while that is true, there are other points to consider. As the learned Assistant Government Advocate has himself said, bearing in mind the number of injuries sustained on both sides by Uda, Chhajju, Nathoo and Hardayal, it is obvious that this fight lasted for some time. To my mind it is extraordinary improbable that Nathoo Brahman had he taken part in this tight would have escaped without a single injury and the improbability which arises from this fact is if anything stronger than the probability that Nathoo Brahman would have taken part because he was interested in the quarrel. One other point to which reference has been made as possibly suggesting the participation of Nathoo Brahman is the fact mentioned by the Sub-Inspector that Nathoo Brahman was arrested at the thana where he had gone along with Nathoo Ahir when the latter made a first information report half an hour later than the first information report made on behalf of the prosecution. I can not myself regard this fact as leading to the conclusion that Nathoo Brahman must have taken part in the fight. I can not myself regard this fact as leading to the conclusion that Nathoo Brahman must have taken part in the fight. Nathoo Ahir and Hardayal were in any case his supporters and it was inevitable that he should go to the thana to help them to make the first report. Taking the evidence as a whole, I am of opinion that the charge has not been convincingly established against Nathoo Brahmin who is therefore entitled to the benefit of doubt. 6. I accordingly allow his appeal, set aside his conviction and sentence and direct that, if he is not required in connection with any other case, he should be set at liberty without delay. 7. As regards the other two Appellants, Nathoo Ahir and Hardayal, there can be no doubt that they took Dirt in a fight and I think the learned Sessions Judge has rightly held that this was a case of a sudden fight in the heat of passion upon a sudden quarrel and that no undue advantage was taken. There could be no question of self defence because the fight took place in the field of Uda and not in the field in dispute which was in possession of Nathoo Brahman. On the other hand, this is not one of those cases in which two men have battered the head of another man to pieces and obviously intended to cause his death. On the contrary it seems that there was a quite long drawn out fight with passions considerably raised and yet without any intention to kill. In my judgment conviction in such a case should properly be u/s 325. It is impossible to say who gave the fatal blow which broke the rib which pierced the lung of the deceased. It would be difficult to say that in inflicting any of the injuries found on the body of the deceased the Appellants were really saddled with the knowledge that by so doing they were likely to cause the death of Uda much less that there was an imminent danger of his death being caused. On the other hand, there clearly was a common intention to inflict hurt extending to grievous hurt upon the opponents, Uda and Chhajju. 8. On the other hand, there clearly was a common intention to inflict hurt extending to grievous hurt upon the opponents, Uda and Chhajju. 8. In these circumstances I would set aside the conviction u/s 304 and substitute a conviction u/s 325 I.P.C. Taking the circumstances of the case as they have been set out, I think further that the sentence is decidedly severe. In my judgment it is not necessary to inflict the maximum sentence u/s 325 and a sentence of 4 years rigorous imprisonment will be sufficient to meet the ends of justice. The sentences inflicted on Nathoo Ahir and Hardayal are accordingly reduced from 10 years to 4 years rigorous imprisonment. The sentences inflicted u/s 323 will remain as before and will continue to run concurrently.