1. In this case three persons were charged and the charge arose out of the following incidents :-
There was a long-standing enmity existing in the village of Peth in the Satara District between one Krishna and his party and certain other villagers. Coming to recent history the day before this particular offence occurred, some members of the party opposed to Krishna were beaten. On the following day two of the accused in this case, Dattu No. 1 and Ganu No. 2 and a third person named Manku who is said to have absconded, had an altercation with Krishna in the bazaar. Thereafter Krishna went to his field where his father was and from the field the father, Gopala and Krishna with his brother Vishnu and two others proceeded to the village and as they got into the village, they encountered a party of which Dattu, Ganu and Manku and a fourth person were members. They threw stones at this party and to some extent at any rate forced them back. The stone-throwing became mutual and Gopala, who seems to have somewhat incautiously exposed himself, was struck by a stone which must have been of considerable weight and thrown with a good deal of violence because it ruptured his liver and ultimately caused his death. He fell down and as he lay on the ground Dattu came forward with a sword and struck a blow which caused a very serious wound in Gopala's leg.
2. These facts are now practically undisputed and in respect of them Dattu was charged with the murder of Gopala and Ganu with abetting that same murder. They were both charged with attempting to commit the murder of Krishna and a third accused named Chunilal was charged with conspiracy. Chunilal has been acquitted and we are not here concerned with the case against him. Both Dattu and Ganu have been acquitted of the attempt to murder Krishna and so we are no longer particularly concerned with that part of the case. Both have been convicted in respect of the murder of Gopala and both have been sentenced to transportation for life and both have appealed.
3. Putting aside for a moment the wound inflicted on Gopala by Dattu with a sword and confining my attention to the blow from the stone which was what actually caused Gopala's death the salient facts are these : No one knows who threw the stone though no doubt it was thrown by one of the party of which Ganu and Dattu were members. The stone-throwing was begun by Krishna's party and in the beginning they seem to have had the best of the encounter. So far as I know, when you have a stone-throwing of this kind, the causing of death is an unusual incident and the acts done in encounters of this kind are not, it seems to me, to be regarded as likely to result in injuries which cause death in the ordinary course of nature; so that from stone-throwing of this kind by itself it is, it seems to me, very difficult, if not impossible, to infer any intention to kill. In this case, however, it is alleged by the prosecution that there was a definite intention on the part of Dattu and Ganu and their company to. kill Krishna or possibly one of Krishna's associates. There is evidence which seems to be credible that Dattu and Ganu and two other men were parading the village, two of them with swords and one with an axe and that they were on the look-out for Krishna's party. If one could safely infer from this that Ganu's party was, as one may put it, out to kill, then there would be no difficulty in concluding that the death of Gopala in pursuance of this purpose was murder. The Sessions Judge, who convicted these men of murder, does seem to have come to the conclusion that Dattu's party was out for a murderous purpose; although he also finds that the promiscuous stone-throwing was begun by Gopala's party; that the initial act of agression was not by the accused; and that the stone-throwing by the accused's party was an act of defence against an attack by Gopala and his partisans. These facts being so, I feel that I cannot with any confidence accept the conclusion of the Sessions Judge that Dattu's party was collected for and was animated by a murderous purpose. It may have been so. But seeing-and the evidence seems to show this clearly- that they were on the look-out for Krishna's party and were anticipating an attack from Krishna's party and that their anticipation was realized, it seems to me, to be quite as likely that they were assembled for purposes of defence and that it was for purposes of defence that they replied to the stone-throwing. I, therefore, am unable to follow the Sessions Judge to the conclusion that undoubtedly Dattu's party was animated by a murderous intention.
4. I can therefore in this case only treat the death of Gopala arising out of the stone-throwing as an unfortunate accident, and I cannot consequently support the conviction of Dattu and Ganu for murder in respect of the death of Gopala. But it is proved that it was Dattu who struck Gopala with a sword as he lay on the ground and inflicted a very serious wound. It may be that this wound accelerated the death of Gopala. But I greatly doubt whether that circumstance brings the case-within Expln. No. 1 of Section 299 of the Indian Penal Code and I think that the only offence of which Dattu can properly be convicted is that offence which is established by the facts relating to the injuries with the sword taken by themselves. It cannot be doubted, I think, in the face of the medical evidence, that the hurt inflicted was grievous hurt and it cannot be doubted in the circumstances that Dattu must be taken to have intended to inflict grievous hurt, because he must have intended hurt of a very severe character and the hurt was inflicted with a cutting instrument by a savage blow. Therefore the case comes under Section 326 of the Indian Penal Code.
5. I would alter the conviction of Dattu, the appellant, to a conviction under Section 326 of the Indian Penal Code and having regard to the cruelty and ferocity of the attack I would leave the sentence of transportation for life as it is.
6. In the case of the appellant, Ganu, the conviction and sentence must be set aside and he must be acquitted and discharged.
7. I concur. The case of the second appellant is one of great difficulty. It is not easy to say that the common object of the party to which these appellants belonged was to cause the death of Gopala or of anybody else. In cases of the kind the ascertainment of the common object usually is one of very great nicety and hard to prove beyond reasonable doubt. If, however, we could be certain that as a result of ill-feeling between Krishna and his relatives on the one side and Ganu and Dattu on the other, the party which assembled on the evening of the murder consisting of four persons two of whom were armed with swords and one with an axe intended to attack Krishna and his relatives wherever they found them, it might be a reasonable inference-and an inference to be drawn with some certainty-that if killing was not their conscious and definite purpose, their purpose at any rate was to inflict serious injury, on some person or persons and resist all opposition, were opposition offered, by force and at all cost. In view, however, of the grave doubt entertained by my learned brother upon this cardinal point and the reasons he has given I cannot but feel that the case is one in which upon this delicate question there is a very real doubt the benefit of which must be given to the accused, Ganu. It is of course clear that if the intention of Ganu's party was not to attack, but merely to protect themselves, there would be no case at all against this accused. The death of Gopala was in fact caused by a stone and there is no evidence to show who threw that stone. Apart, then, from the common intention there is nothing to connect the accused Ganu with the murder of Gopala.
8. I concur in holding that Ganu must be acquitted and I also agree in all that has fallen from my learned brother upon the case of the first appellant, Dattu and I agree with the order which he has proposed in his case.