1. These are eight appeals by eight accused, who nave been convicted of the offence of rioting and other offences committed in the course of the riot.
2. All the accused are residents of Bairawadi and are related to each other. Accused Nos. 1, 2, 6 and 7 are brothers. One of their sisters is married to accused 4 and another to accused 5. Accused 3 is the brother of accused 5 and accused 8 is their father. These accused reside in the same lane in which witnesses Dattu, Maryappa and Main reside.
Dattu suspected that his wife was on illicit intimacy with accused 2. On account of this there were frequent Quarrels between Dattu and his Wife. On Friday the 14th January 1955 Dattu drove his wife out of his house. She then went to reside with her parents. Later on the same day when Dattu and his brother Maryappa were passing by the house of accused 2, accused 2 told Dattu that he should take back his wife and that if he did not do so, he would beat him.
The prosecution case is that on the evening of the following day at about sunset time, the eight appellants went near the house of Dattu. At that time Dattu and his brother Maryappa were taking their meals. Accused Nos. 2, 3 and 4 were carrying axes while the others were armed with sticks. They abused Dattu and asked him why he had discarded his wife. He told them that it was not their business to inquire about his domestic affairs.
On hearing the row witnesses Kalu Laxman, his brother Balu Laxman, Babu Rama, his wife Dundawwa and Sidu came out of their houses. Maryappa was then given a blow on his head by accused 4 with an axe. He was also given another blow on his right arm. He then fell down. On seeing Maryappa being beaten, his sister Sharawa came running from her house. She asked the accused why they were beating Maryappa. Thereupon accused 2 gave her a blow on her head with an axe, as a result of which she fell down.
Kalu then tried to intervene, but he was given three blows on his head with an axe by accused 3. Witnesses Babu, Dattu and Balu were also beaten. Thereafter the accused ran away. Balu then went to the Chavdi to give information to the Police Patil. The Police Patil recorded Balu's statement, Exh. 54, in which he implicated accused Nos. 1 to 6 and some other persons. He did not mention the names of accused Nos. 7 and 3.
The Police Patil then went to the scene of offence and sent the three seriously injured persons, Sharawa, Kalu and Maryappa to the dispensary at Gandhinglaj. Sharawa died on the way. The Police Patil then sent this report, along with the statement of Balu Laxman, to the police station at Ajre. The investigation of the case then started. The postmortem examination of the body of Sharwa was held. This showed that she had one incised wound 4-1/2' x 1-1/2' on the head and that her left parietal and temporal boner were fractured.
Accused 1 was arrested on the following morning. He filed a counter complaint Exh. 27c. In that, he stated that when he was sitting near the door of his house, Dattu, Maryappa, Kalu Laxman, Balu Laxman, Babu Rama and Sidu began to throw stones at his house. He questioned, them why they were doing so. They told him that they would continue to throw stones and that he had no business to question them about it. They then rushed at him and assaulted him with sticks and axes in their hands.
After beating him, they had run away. He also stated that the cause of the quarrel was that his brother, accused 2, was on illicit terms with Dattu's wife. After investigation, the police came to the conclusion that there was no truth in the allegations contained in accused 1's complaint. Accused 1 was also sent for examination to the medical officer, Gadhinglaj. He found that he had the following injuries on his person:
1. 1 lacerated wound 1/2' x 1/2' on right parietal bone deep.
2. 1 wheel mark 2'x 1' on lateral aspect of left elbow.
3. 1 wheel mark 3'x 1', 2' below the left scapula.
4. 1 wheel mark 2'x 1' on posterior aspect of right calf muscle.
The police then made a search for the other accused, but they could not be found until 24th January 1955, when they were arrested. The medical Officer, to whom the other injured persons had been sent for treatment, found that Maryappa had received two incised wounds. One of these was 4' long on the right side of the back. His 9th and 10th ribs were also fractured. The other incised wound was on the right arm. He was detained in the hospital till 13th of February.
Thereafter, lie was treated for some time as an out door patient. Kalu Laxman had two incised wounds and one lacerated wound on his head. On account of these injuries he had to remain in the hospital till 29th January 1954. Babu Rama had two lacerated wounds one on the head and another near the left eye-brow and three wheel marks, one on the left shoulder and two on the right elbow. His scapula and radius bones were also fractured. Dattu and Babu Laxman are also said to have received minor injuries, but there is no medical evidence regarding them.
3. The eight accused persons were then sent up for trial. They were charged with being members of an unlawful assembly, the common object of which was to beat Dattu. Maryappa Sharawa, Kalu, Babu and Balu with committing the murder of Sharawa, and causing grievous hurt to Maryappa and Babu Rama and Simple hurt to Dattu, Kallappa and Balu and thereby committing offences punishable under Sections 147, 148, 302, 326, 325, 324 and 323 read with Section 149, Indian Penal Code.
4. All the accused pleaded not guilty. They did not deny their presence at the time of the offence. In reply to almost every question put to them with regard to the prosecution evidence, every one of them stated that the evidence was false. The learned Judge came to the conclusion that all the accused had gone near Dattu's house and taken part in the assult on Dattu and other persons. He therefore convicted accused 2, 3, and 4 under Section 148, Penal Code and the other accused under Section 147, Penal Code.
Accused 2, 3 and 4 were convicted under Section 148. Penal Code, as they were carrying axes at the lime of the offence. Accused 1 was convicted under Section 325, Penal Code for causing grievous hurt to Babu Rama. For the same offence, the other accused were convicted under Section 325 read with Section 149, Penal Code. Accused 2 was convicted under Section 304 Part II, Penal Code for causing the death of Sharawa.'
In respect of this act, the other accused were convicted under Section 326, read with Section 149, Penal Code. Accused 3 was convicted under Section 324, I. P. C. for causing injuries with an axe to Kalu Laxman and the other accused under Section 324 read with Section 149, Penal Code. In respect of the grievous hurt caused to Maryappa, accused 4 was convicted under Section 326, Penal Code and the other accused under Section 326 read with Section 149, Penal Code.
The learned Judge acquitted the accused on the charge of causing hurt to Dattu and Balu Laxman. He passed different sentences for the various offences, of which he found the accused guilty.
5. Before I deal with the evidence in this case, it is necessary to mention that the charge framed by the learned judge in this case is defective. Although there were 8 accused and although they were charged with different offences, the learned Judge has framed one composite charge against all the accused in respect of the various offences committed by them. For instance accused 2 was charged with causing the death of Sharawa. The intention was to charge him with committing the murder of Sharawa and the other accused with being constructively liable under Section 149, Penal Code.
The proper thing therefore was to frame a. separate charge under Section 302 read with Section 149, Penal Code against the remaining accused. Similarly separate charges should have been framed in respect of the other offences. The result of the procedure followed by the learned Judge is that even the points for determination mentioned in paragraph 8 of the judgment have not been correctly drawn up.
It would, therefore, have been desirable if the learned Judge had framed a separate charge in respect of each separate offence. This would also have given a clear notice to the accused of the exact case which they had to meet.
6. Coming to the evidence in the case, it is not quite clear what exactly the accused's defence in this case was. As I have mentioned, all that they have stated in reply to the questions put to them by the learned Judge is that the prosecution evidence was false. From the complaint lodged by accused 1 with the police, Exh. 27C, it however appears that the accused's case was that the various prosecution 'witnesses Dattu, Babu, Maryappa, Kalu Sidu and Balu had gone to the house of accused 1 and beaten him.
This does not however, explain how very serious injuries were caused to the prosecution witnesses and to Sharawa. As, however, the defence of the accused seems to have been that they were not the aggressors, the first question which has necessarily to be determined is who were the aggressors in this case. All the seven witnesses, Dattu, Maryappa, Kalu, Babu, Balu, Sidu and Dundava have stated that the accused had gone near Dattu's house and beaten the prosecution witnesses.
Apart from the fact that these witnesses have not been materially shaken in their cross-examination, the circumstances of the case also suggest the truth of their story that they had not taken the initiative in assaulting accused 1. The Panchanama of the scene of the offence, Exh. 9A shows that a pool of blood was found near the house of Dattu.
There can, therefore, be no doubt that the offence had taken place near the house of Datta. This would show that the accused had gone near Pattu's house. The statement made by accused 1 in his complaint to the police that Dattu and other persons had gone to his house does not, therefore, appear to be correct. The evidence also shows that on the accused's side only accused 1 was injured. The injuries caused to him were also comparatively very minor. Apart from a lacerated wound on the head, which was bone deep, the other three injuries consisted of wheel marks.
No other accused person had received any injuries. On the other side, Sharawa was done to death, grievous hurt was caused to Maryappa and Babu, while Kalu Laxman also received three serious injuries on. his head, two of which were incised wounds. The injuries caused to these persons show that at least two kinds of weapons, axes ' and sticks, had been used by the accused. On the other hand, the injuries found on accused 1 must have been caused by some hard and blunt substance such as a stick.
Having regard to the number of persons injured and the nature of injuries caused to them, there can be no doubt that the prosecution story that the accused had gone to Dattu's house and started beating Dattu and his companions is true.
7. All the witnesses have also stated that the number of offenders was more than five. The persons, who took part in beating Dattu and his companions, therefore constituted an unlawful assembly and as injuries were caused to various persons, they are all guilty of the offence of rioting.
8. The next question to be considered is whether all the eight accused were members of the unlawful assembly, as found by the learned trial Judge. So far as accused 7 and 8 are concerned, it seems to us that the charges against them have not been proved beyond reasonable doubt. Their names are not mentioned in the information given by Balu Laxman to the Police Patil Ex. 5 A immediately after the offence was committed.
Babu Rama has stated in his evidence that accused 7 had given him a blow with a stick on his left eye brow. No such statement has even been made by him before the police, Balu Laxman had also stated that accused 7 had beaten Babu with a stick. In the Committing Magistrate's Court however he did not mention accused 7 as being the assailant of Babu. With regard to accused 8, Dattu has deposed that he had given a stick blow to Babu on his head.
Babu in his evidence does not, however say that accused 7 and 8 had taken any part in the Maramari. They reside in the same street and the, mere fact that they might have been present at the time of the offence would not, therefore, show that they were members of the unlawful assembly. In our opinion, therefore, the charges, against these two accused 7 and 8 have not been proved beyond reasonable doubt. Accordingly we set aside, their convictions and the sentences passed upon them.
9. So far as the other accused 1 to 6 are concerned all the prosecution witnesses, three of whom Maryappa, Kalu Laxman & Babu Rama received serious injuries, have stated that all these accused were present and had taken part in the Maramari. Their names are also mentioned in the statement of Balu recorded by the police patil within a short time after the commission of the offence.
These accused have also in their statements not denied their presence at the time of the occurrence. We therefore believe the prosecution evidence that they were all present at that time and had taken part in assaulting Maryappa, Babu, Kalu and other prosecution witnesses. Ail of them are therefore guilty of the offence of rioting. As accused 2, 3 and 4 were carrying axes, they would be guilty under Section 148, Penal Code.
10. The evidence also shows that each one of these six accused had taken part in the assault on prosecution witnesses, Babu stated that he had been given a blow with a stick by accused 1 on his right elbow causing fracture of his hand. The medical evidence shows that Babu had two wheel marks on his right elbow, and a fracture of the radius.
Babu's evidence on this point is also corroborated by Kalu, who has deposed that accused 1 had given blows with a stick to Babu. This evidence, therefore, shows that accused 1 had caused grievous hurt to Babu. He was, therefore, rightly convicted under Section 325, Penal Code. In respect of this injury caused to Balu, the other accused would be constructively liable under Section 149, Penal Code. Their convictions under section 325 read with Section 149, Penal Code, are consequently correct and must be confirmed.
11. All the witnesses have also stated that accused 2 had given a blow with an axe to Sharawa. This injury proved fatal. The learned Judge has convicted this accused under Section 304 part II, Penal Code, for causing the death of Sharawa. It seems to us that the learned Judge has taken an unnecessarily lenient and erroneous view on this point. He has observed that as the injury was caused to Sharawa in the heat of moment, accused 2 cannot be said to have intended to kill her.
A person's intention can only be inferred from the acts committed by him; and where a person gives a blow with a dangerous weapon like an axe to another person on his head and causes a fatal injury, the only reasonable inference, which can be drawn is that he intended to cause that person's death or to cause such bodily injury as would be sufficient in the ordinary course of nature to cause death. He may at least reasonably be presumed to have known that his act was so imminently dangerous that it would in all probability cause death.
The learned trial Judge would therefore not have been wrong, if he had convicted this accused under Section 302, Penal Code. As, however, there has been no appeal by the State, it is not open to us to convict accused 2 of a more serious offence than the one of which the learned trial Judge has found him guilty. His conviction under Section 304 Part II, Penal Code, must consequently be confirmed.
11A. Thy learned trial Judge was also wrong in holding that the other accused were not constructively liable for causing the death of Sharawa. Where a number of persons go armed with axes in order to assault their opponents or enemies and use axes in prosecution of the common object, everyone of them may reasonably be expected to know that the offence of culpable homicide is likely to be committed in prosecution of that object.
All the other accused Nos. 1 and 3 to 6 should, therefore have been convicted under Section 304 Part II read with Section 149, Penal Code in respect of the fatal injury caused to Sharawa by accused No. 2. As, however, there is no appeal by the State, it is not open to us to alter their convictions under Section 326 read with Section 149, Penal Code, in respect of this offence. The convictions of accused 2 under Section 304 Part II and of the other accused 1 and 3 to 6 under Section 326 read with Section 140. Penal Code, in respect of the injury caused to Sharawa, must consequently be confirmed.
12. So far as accused 3 is concerned, Kalu has stated in his evidence that this accused had given him three blows on his heart with an axe. His evidence on this point is corroborated by that of Balu, Dattu, Maryappa and Dundawa. The medical evidence shows that Kalu had two incised wounds and one lacerated wound on his head. The prosecution evidence is therefore, borne out by the medical evidence. The learned trial Judge, was, therefore, right in convicting accused 3 under Section 324 for causing hurt with a dangerous weapon to Kalu and in convicting the other accused Nos. 1, 2 and 4, 5 and 6 under Section 324 read with Section 149, Penal Code.
13. Maryappa has stated that accused 4 had given a blow with an axe on his head and another blow on the back side of his right arm. Maryappa's evidence is borne out by the medical evidence, which shows that he had one incised wound on the right side of the back and another incised wound on the right arm. His 9th and 10th ribs were also fractured.
Maryappa's evidence that these injuries were caused to him by accused 4 is supported by the evidence of other witnesses Kalu, Dattu and Sidu. This accused 4 was therefore rightly convicted by the learned trial Judge under Section 326, Penal Code, for causing grievous hurt with a dangerous weapon to Marayappa. The learned trial judge was a]so right in convicting the other accused 1, 2 and 3 and 5 and 6 under Section 326 read with Section 149, Penal Code in respect of the injuries caused to Maryappa.
14. Babu has stated that accused 5 has beaten him with a stick on his head. Kalu has also deposed to the same effect. Sidu has also implicated accused 5 as being the assailant of Babu. We are not inclined to attach any weight to his evidence, as he had not made a statement to that effect before the police. The medical evidence shows that one of the injuries caused to Babu was a lacerated wound on the right parietal bone. This evidence therefore shows that accused 5 had also taken part in assaulting Babu.
15. Babu has also stated that accused 6 had given him a blow on his left shoulder with a stick. Kalu and Sidu have also stated that this accused had beaten Babu. The medical evidence shows that Babu had a wheel mark on his left shoulder and that his scapula was fractured. It is clear from this evidence that accused 6 had also taken part in beating Babu.
16. Each of the six accused 1 to 6 is therefore proved to have taken part in the assault on the prosecution witnesses. Their conviction for the various offences, of which the learned trial Judge has found them guilty, must consequently be confirmed. The sentences priced upon them are not excessive. If at all, they err on the side of leniency.
17. The appeals of accused 1 to 6 are therefore dismissed.
18. Order accordingly.