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They were all unarmed, At this moment the six appellants arrived. They were all armed --Ambika with a spear and the remaining five with lathis. Ghulab ordered Ajmer to stop ploughing, but the latter refused and said that he had been in cultivatory possession for the last fifteen years artel had a right to plough the land, Thereupon Ghulab fired two crackers which went off with a bang. Ajmer stepped back towards the south. Ghulab, however, incited his associates to assault Ajmer and shouted 'Maro. Sale Ko'.

Thereupon Ambika plunged his spear into the left thigh of Ajmer and it went right through. He kept it pressing against the wound, holding his victim down like a pinned beetle. Ghulab and the other accused gave him lathi blows. His wife and servant were not assaulted. All the three shouted for help which brought on the scene a number of persons. On their intervention the assailants ran away towards Sikra Village which is nearby. After they had left, Ajmer, who had fallen down, got up, but after a few steps he collapsed and died. Leaving her husband's dead body in a Qabristan nearby, Shrimati Bashiran went to the thana to lodge a report, accompanied by the Chaukidar.

But what did the accused do? After Ajmer had stepped back, Ghulab shouted "maro sale ko" and Ambika immediately plunged his spear into Ajmer's thigh with such force that the point went clean through. It appears to us from the evidence that the bang of the cracker combined with a show of force by Ghulab's party had achieved the purpose of the accused if ft was to regain possession of the land. Therefore, the subsequent spearing of Ajmer and the assault with lathi blows after he had stepped back were not acts done in defence of property, albeit, in excess of the right of self-detence, but a brutal assualt with the intention of teaching him a lesson.

We are prepared to give the benefit of doubt to the five accused other than Ambika and to hold that it is not fully established that they had come with the agreed intention of committing murder. We, therefore, change the conviction of these five accused from one under Section 302/149 to 326/149. In view of the brutality of the assault we feel the imposition of a sentence of 7 years' R. I. as just and proper.

39. The accused Ambika was responsible for the spear thrust which killed Ajmer, The learned Judge has taken the view that his conduct amounts to murder and has sentenced him to death. After giving this matter our careful and somewhat anxious consideration, we are of the opinion that, as regards Ambika's individual responsibility for the killing of Ajmer his action falls short of murder. There is no evidence that he aimed his thrust at any vital part of Ajmer's body. The weapon entered his thigh and pierced through. In our opinion the case is somewhat similar to that of Kapur Singh v. State of Pepsu, (S) AIR 1956 SC 654, in which a person who had inflicted 18 injuries on the arms and legs of his victim with a Gandasa resulting in his death was sentenced to death by the Punjab High Court but, on appeal, convicted by the Supreme Court under Section 304(1) I. P. C. We are of the opinion that Ambika is also guilty of the same offence--culpable homicide not amounting to murder. As regards sentence, we have not discovered any redeeming-feature in his conduct. The land did not belong to him and he killed a man in a quarrel which was not his own. After spearing his victim, he callously held him down as one would a harpooned beast. We are, therefore, of the opinion that his conduct calls for the maximum sentence permissible under Section 304(1) and sentence him to rigorous imprisonment for life.