1. It seems impossible, therefore, to bring the acts of the prisoners within the definition of murder. What we consider to be proved is this, viz., that prisoners, Nos. 1 and 2, went to the prostitute's house, armed with sticks, intending to beat the deceased; and that prisoner No. 1 caused the death of the deceased, by striking a blow which was likely to cause death, but was not sufficient in the ordinary course of nature to cause death. Under these circumstances, prisoner No. 1 was guilty of the offence of culpable homicide not amounting to murder, and having regard to the provisions of Section 111 of the Indian Penal Code, we consider that prisoner No. 2 was equally guilty of that offence.
2. Unfortunately, this Court, as a Court of Reference, does not appear to have power, under Section 288 of the Code of Criminal Procedure, to alter a conviction of murder into one of culpable homicide not amounting to murder, but only to order a new trial. In referred cases there is generally a petition of appeal, and then this Court, being a Court of Appeal as well as of reference, can alter the finding of the Sessions Court (section 280); but in the present case there is no petition of appeal. We think that it is to be regretted that the Legislature should have taken no notice of the objections which were raised to Section 399 of the old Code, and should have enacted Section 288 in the same form. It seems quite useless to order a new trial merely because this Court considers that the facts established by the evidence constitute the offence of culpable homicide, or of hurt, and not of murder. Nor, if this Court is authorized to act upon its own view of the law, when there is an appeal as well as a reference, is there any apparent reason why it should not have the same power when there is a reference only. However, we have no choice but to obey the provisions of the law, which require us to annul the conviction, and order a new trial. Fortunately, however, in the present case, the prisoners were arraigned on the charge of culpable homicide, as well as on that of murder, and the trial on both charges was so far completed that the opinion of the assessors was taken on both charges, though the Session Judge only recorded a finding on the charge of murder. We think that we shall be sufficiently fulfilling the requirements of the law if, instead of ordering a new trial ab initio, we direct the Session Judge to complete the trial of accused Nos. 1 and 2 by recording a finding on the second charge, viz., that under Section 304 of the Indian Penal Code, and in the event of his convicting the accused (as it may be presumed that he will do, though this Court has no authority to direct him to do so), we would suggest to him that he might appropriately sentence the accused No. 1 Balapa to rigorous imprisonment for five years, and accused No. 2 Mahadevpa to rigorous imprisonment for three years.