Subba Rao, C.J.
(1) These are appeals against the judgment of the Court of Sessions of Kurnool division, convicting the accused Under Section 302 and Section 148, Indian Penal Code and sentencing them to death and also to undergo rigorous imprisonment for 3 years.
(2) One Lingareddi was hacked to death, on 18-1-1954 at about 10 P. M. near a well called Kurakulavandla Bhavi in the village of Pedda Hothur in Eluru Taluk.
The case for the prosecution is, the 1st accused is the father of accused 2 and 3, and accused 4 and 5 are illegitimate sons of a divided brother of the 1st accused. They were manufacturing arrack illicitly in the hillock of Kurithegudda, which is close to the field of Lingareddi, the deceased. Lingareddi was a fairly well-to-do ryot of respectability and he naturally protested against the actions of the accused. Not only did they not heed to his advice, but they also shifted the materials used for distillation close to the field of the deceased.
Two months prior to the occurrence, the deceased broke the pots with a forked stick. Two days prior to the incident, the 5th accused drove his flock of sheep into the field of the deceased and his standing crops grazed. The deceased beat the 5th accused. At about 10 P. M. on 18-1-1954, when the deceased, as usual, was going to his field to keep watch over the standing crops, the five accused who were lying in wait in their 'maliga' in their garden armed with deadly weapons, came to the Marakat rastha, surrounded him and stabbed him with spears and hatchets, which resulted in his death.
(3) Exhibit P-11, the plan filed in the Sessions Court shows at a glance the locality, where the dastardly crime was committed. It will be seen from the plan that Marakat road is a cart track, which starts from the village and leads to another village called Marakat in the north. The 1st accused owned a garden with a house and a well thereon to the west of the cart track. The deceased also owned fields on the western side of the cart track and north of the accused's fields. Between the two, besides other fields, there is a cremation ground. On the eastern side of the Marakat road after passing the fields of the accused, there is a well called Kurakulavandla Bhavi. Prom that well, a footpath leads towards the east to Sakkana's land. The dead body of the deceased was found at the point marked in the plan, which is 22 yards from the well.
(4) That the deceased was hacked to death in a brutal manner is beyond dispute. The post mortem certificate Ex. P-6 shows that as many as 17 wounds were inflicted on his body. P.W. 5, the Civil Assistant Surgeon who conducted the autopsy on the body described the nature of the wounds. According to him, injuries Nos. 1, 2/ 3, 5, 6, 7, 9, 12, 13 and 14 could have been caused by sharp edged weapons such as hand axes and spears and that injuries Nos. 8, 10, 11, 15, IB and 17 could have been caused by a blunt weapon like a stick. He expressed the view that death would have been instantaneous and might, have occurred about 15 hours prior to his examination. When the weapons seized in the case viz., M. Os. 1 to 5 were shown to him he gave his opinion that the injuries could have been caused with the said weapons. Therefore who caused the injuries to the deceased must be held to be guilty of murder.
But the real question is whether the accused are the persons who inflicted the injuries on the deceased and caused his death.
(5) Exhibit P-l is the complaint dated 18-1-1954 made by P.W. l, a nephew of the deceased, to the Village Munsif. It purports to have been given at 12 mid-night on 18-1-1954. In the complaint, the incident is described as follows:
At about 10 o'clock in the night the deceased after taking his meals, went for watching his field Kondachenu. Along with him Chakkala Siddappa also went. On the way when they were passing Kurakulavandla Bhavi, the five accused came from the field of Boya Burranna and began to abuse in foul language. The 5th accused pierced Lingareddi's neck with a screw-spear. The 2nd accused pierced him with a screw-spear on his throat. The 4th accused cut his head with a hatchet. The 1st accused beat him on his head and with a hatchet and the 3rd accused beat him with a stick on his back. After Lingareddi fell down, his body was pierced with screw-spears and cut with hatchets and he was killed. Chakkala Siddappa came running and informed these facts to the complainant, who went to the scene of occurrence and saw Lingareddi's dead body.
(6) The report of the Village Munsif shows that when questioned, the complainant told him that Chakkala Siddappa (P.W. 3) and Hulik-appa (P.W. 4) were witnesses to the incident. This complaint, which was given two hours after the incident gives all material particulars.
P.W. 1 is the Linga Reddi who gave the complaint. He gives the relationship of the accused to each other and the previous incidents which created bad blood between the accused and the deceased. He says that the accused were illicitly manufacturing arrack and that the deceased protested against their illegal activities. He speaks to the fact that the deceased broke 20 or 30 pots of fermented liquor. He also mentions the incident 10 days prior to the occurrence of the 5th accused driving his flock of sheep into the field of the deceased and getting his karra crop grazed up and of the beating by the deceased of the 5th accused.
Finally he narrates the circumstances how Chakkala Siddappa, who was watching his field during the night time went along with the deceased, how on that fateful night Chakkala Siddappa returned home within half an hour and told him that his uncle was killed, how he woke up the two wives of the deceased and along with them went to the place where the dead body was found, how he saw near the dead body the 1st accused who was sitting fully intoxicated on a boulder and remarking sarcastically 'Where is your junior paternal uncle now?' and how he gave the ring of his uncle to him.
He proves Exhibit P-l and says that he gave it to the Village Munsif. No material circumstances have been elicited in cross-examination to discredit this witness. A suggestion is made that Madiga Narasappa is his farm servant and that he came and informed him of the murder of the deceased, but he denies it. When it is put to him whether he mentioned the incident to P.W. 6, the Village Constable, he denied it.
The suggestion is made to discredit P.W. 6 than P.W. 1. P.W. 6 says in his evidence, that one Lingareddi told him of the murder, and that he made that entry in his diary. P.W. 6 explains that that Linga Reddy who told him is a young boy who is examined as P.W. 7. An attempt is made to suggest that there is faction in the village between Gangadhara Reddi and others in connection with the Panchayat Board elections and that Gangadhara Reddi is assisting the prosecution in this case, but he denies it.
Indeed the learned Counsel for the accused does not base his criticisms on the alleged factions in the village. There are certain slight discrepancies between what this witness stated in the Sessions Court and that which he stated before the Magistrate. Here he said that he was fully drunk, whereas in his deposition before the Magistrate, Ex. D-l, he said that he was not drunk. After going through his evidence, carefully, we see no reason to reject his evidence.
(7) P.W. 3 is one of the eye-witnesses. Ac cording to him he followed the deceased up to the moment he was beaten to death. His evidence, if accepted, would bring home the guilt to the accused. (After narrating his evidence the judgment proceeded:) The learned Counsel for the accused tried his best to establish that this witness is a liar, but he had failed in his attempt. It is.said that Valim Sahib to whom this witness had given first information of the incident should have been examined by the prosecution and the non-examination of that witness indicates that the version of P.W. 3 that he told him of the incident is not true.
In support of the contention that a duty lies on the prosecution to examine all the witnesses necessary to unfold the narration of the events that led to the incident, reliance is placed upon the judgment of the Supreme Court in -- 'Ha-beeb Mohamed v. State of Hyderabad' : 1SCR475 . But in this case, Valim Sahib was not a very important witness. If he Is 'examined, he could but have advanced the case ,of the prosecution, except to the extent of proving ithat P.W. 3 was the messenger who carried the | evil news to the nephew P.W. 1. Further the prosecution took steps for summoning him, but the Court refused to grant any adjournment. In the circumstances, we cannot draw any adverse inference against the prosecution though it would have been better if they had examined Valim Sahib also.
Some discrepancies in the evidence of P.W. 3 are also relied upon. In the statement made by him Under Section 164, Criminal Procedure Code, he stated that he was the farm servant of P.W. 1, whereas in the Sessions Court, he stated that he was a cooly working under P, W. 1. Before the Magistrate, he deposed that the accused surrounded them i.e., himself and the deceased, whereas before the Sessions Court he would say that the deceased was surrounded, and that he was standing at a distance of about 16 feet from them. To the Sub-Inspector he stated that he saw the assailants stabbing and beating the deceased after he fell down. In the Sessions Court he says that he did not see them stabbing the deceased after he fell down. In the Magistrate's Court he said that the 1st accused gave a gold ring, whereas in the Sessions Court he said it was a silver ring.
These are all small discrepancies that would always be found in the deposition of the same person at different points of time. The learned Counsel comments that it is not possible for a man standing at about 16 feet from the deceased, even in moonlight, to depose in minute detail how each one of the accused gave a particular blow with a particular weapon on a specific part of the body. There may be some justification for the comment, but we cannot say from the detailed description that P.W. 3 has not witnessed the occurrence. They are only embellishments in an otherwise truthful version. This witness's name was also mentioned in Ex. P-l i.e., even at the earliest moment, when the complaint was made to the Village Munsif. The learned Judge, who had seen this witness and observed his demeanour in the witness box, accepted his evidence. After carefully considering his evidence we cannot discover any valid reason for rejecting the evidence of this eye-witness.
(8) P.W. 4 is Hulithappa, whom P.W. 3 saw at a distance of 16 feet from the place where the murder took place, when he turned back to go to the village. He says that he was about 40 feet from the deceased when he was near the Kurakulavandla Bhavi. He practically describes the incident in the same manner in which P.W. 3 described it. (Their Lordships considered his evidence and proceeded:)
Though it is very difficult to accept a detailed description of the manner of beating, there is abso- lutely no reason to reject his evidence, when he states that he saw the accused hacking the deceased with spears and hatches. This witness has stood the test of cross-examination very well and has impressed the Judge who had seen him in the witness box and after going through his evidence, we do not see any justification to take a different view of his evidence, from that taken by the Sessions Judge.
There is only one corroborating evidence in. the case. P.W. 9 is a Muslim. (After considering the evidence of this witness, the judgment proceeded:) P.W. 9 appears to be a disinterested witness and we cannot see any tangible motive for him to give false evidence to incriminate the accused in a murder case. His evidence ctearty shows that he heard the cry of the deceased an& also that he saw the five accused surrounding the deceased armed with weapons.
(9) The weapons used in committing the murder and the blood-stained clothes were discovered in the garden of the accused.
P.W. 10 is a Head Constable. At about 1-36 P.M., he along with Panchayatdars went to the garden of the accused. At about 2 P.M. they searched the hay rick in that garden and found M. Os. 1 to 5 the weapons used. They were an blood-stained. Exhibit P-7 is a Fanchayatnama. At about 2-40 P.M. he searched in the presence of the Panchayatdars the house in the garden. and they found M. Os. 7 and 8, which were als blood-stained. They are the clothes alleged to have been worn by the accused. Exhibit P-8 is the Panchayatnama in regard to the said M. Os.
It was only suggested to this witness that the hay-rick is in the field, which has no enclosure and that there is no shutter to the doorway of that house. Though there is a remote possibility of somebody putting the weapons in the hayrick of the accused, his evidence cannot be rejected on that speculation.
P.W. 11, the Village Munsif identifies M. Os. n and 8. He says M. O. 7 belongs to the 1st accused and that M. O. 8 belongs to the 5th accused. In cross-examination he says that lie hafi seen the 1st accused wearing M. O. 7. His evidence clearly shows that M. O. 7 and M. O. 8 belong to two of the accused. The discovery of' the blood-stained weapons in the hay-rick in the field of the accused and of the clothes in their house in the garden certainly reinforce the conclusion that the accused must have been the culprits.
(10) As against this positive evidence, the accused have examined six witnesses. Three of the five accused have admitted their presence at the scene of offence. To explain their presence, they examined witnesses to show that, while they were at the shop of D. W. 3, one Madiga Narasappa who was running towards the village, told them of the incident and that they went to the place of occurrence, out of curiosity. They sought to explain the incident of the ring by stating that the 1st accused joined P.W. 1 when he was searching for something near the corpse and finding the ring he gave it to him, that thereafter they were taken to the house of P.W. 11 where Gangadhara Reddi and Dasi Reddi were sitting and that after staying there for one Hour, they returned home. D. Ws. 1, 2 and 3 were examined to support this story. The suggestion that Madiga Narasappa came running towards the village was put to P. Ws. 1, 3 and 4, but they denied it.
(11) (Their Lordships perused the evidence of St. W. I, and continued:) We have no doubt that this witness has been improvised for the occasion.
(12) D. W. 2 is a Madiga. (Their Lordships d his evidence and continued:) His evidence is not worthy of credence.
(13) (Then their Lordships considered the evidence of D. W. 3 and proceeded:) A perusal of the evid-ence leaves no doubt in our mind that he had perjured himself in the witness box in a belated attempt to support the accused.
(14) D. W. 4 is one Chinna Lakshmanna. He is the younger brother of Govindappa. He says that there is party faction in the village between them, Gangadhara Reddi and Dasi Reddi, that the deceased (sic) & the accused belong to Govindappa's party and that P. Ws. 1, 3, 4, 8 and 9 belong to the Ganghadhara Reddi's party. We have already considered this aspect of the case. There is no material to show nor could the learned Counsel substantiate the plea that the witness, who gave evidence for the prosecution were all partisans of Gangadhara Reddi and they were using the incident to wreak vengeance of Govindappa party-men. We, therefore, hold, agreeing with the learned Sessions Judge that the five accused murdered Lingareddi at about 10 P.M. on 18-1-1954.
(15) The next and more difficult question is wliat is the sentence to be inflicted on the accused. Mr. Basi Reddi contends that, where a number of accused commit a murder and where It is not possible to connect a particular accused with a particular injury on the dead body and where the accused are convicted for murder by leasoti of their constructive liability, Courts always have given the lesser sentence of transportation for life. In the alternative, he would say that, in the present case, the accused com' mitted the murder in a state of drunkenness and that when it has not been established that they Such primed themselves with drink to commit the murder, the lesser sentence of transportation for life would meet the situation.
(16) The statutory provisions prescribing the mature of the penalty in a case of murder are Section 302, Indian Penal Code and Section 367(5), Cr.PC Under Section 302, IPC whoever commits murder shall be punished with death, ami (sic) the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of ath was not passed. A combined reading of frese provisions makes it clear that the normal uirfsftment In the case of murder is death, but mitigated punishment can be given for stated attenuating circumstances. That that is the law lias been laid down in innumerable cases by all the High Courts. See - Emperor v. Nga Shwe HIa U' AIR 1922 Low Bur 32 (B); - 'Local Government v. Sitrya Arjuna' AIR 1933 Nag 307 (C) and - 'In re, Ramudu' AIR 1943 Mad 69 (D).
A different note was struck by Agarwala J. in - 'Moolchand v. State' AIR 1953 All 220 (E), wherein the learned Judge says as follows at page 222:
Under Section 302, IPC a discretion is vested in Courts either to impose a sentence of death or of transportation for life. Discretion must always be exercised according to principles and not according to the humour of the Judge, arbitrary or fanciful. The principle upon which discretion is to be exercised not being fixed by any statute may be interpreted progressively in accordance with the spirit of the times, so that real and not technical justice may be secured. To my mind the true principle of exercising the discretion of imposing either the penalty of death or of transportation for life should be that the sentence of death is awarded in. cases in which the act is very brutal and highly repugnant to morals and the sentence of transportation for life is imposed in all other cases.
(17) The learned Judge's observations may be in accord with the social conscience of the changing times, but with respect to the learned Judge they are in conflict with the express provisions of Section 367(5), Cr. P. O. When the Statute lays down in express terms that reasons shall be given for a lesser sentence, it pre-supposed that the normal sentence for murder is death. The Section, therefore, does not confer an absolute discretion in a Court to give one or the other of the alternative sentences. The normal sentence is indicated and the lesser can only be given for definite extenuating circumstances.
The question is what are the extenuating circumstances in a case where a group of persons were convicted of murder Under Section 302, IPC read with Section 149, IPC Strong reliance is placed upon some observations in the judgment of the Supreme Court in - 'Dallp Singh State of Punjab' : 1SCR145 in support of the contention that, wherever the wounds inflicted are not traced to a particular accused, the lesser sentence of transportation should invariably be given. The observations re> lied upon are found at page 368. They are :
This is a case in which no one has been convicted for his own act, but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases. We make it plain that a Judge is not bound to do so, for he has as much right to exercise his discretion one way as the other, It Is Impossible to lay down a hard and fast rule for each case must depend on its own facts.
Relying upon these observations, it is argued that in this case it is not possible to determine who gave which blow, and therefore, in the exercise of discretion the lesser penalty should be inflicted. Their Lordships did not lay down any inflexible rule of law or rule of guidance for the exercise of discretion that, in every case where it is not possible to allocate the wounds inflicted to a particular accused, a lesser penalty should be given, for, the observations are general and their Lordships make it clear that they are not intended to lay down a hard and fast rule for each case. Suppose five persons fully armed with deadly weapons pursue an unarmed person and hack him to death. Under such circumstances, the contact of the various parts of the body with the different weapons used by the culprits depends upon the accident of the timing of the hit and also the angle and the distance of the particular accused to the victim. One weapon may come into contact with the head, another with a finger tip and a third may pierce through the body. Can it be said that there is any justification for grading the various accused for the purpose of punishment based upon the part of the body that came into contact with a particular weapon?
For our part, we do not see any justification for differentiating the various accused. All of them brutally murdered the deceased, and they all deserve the same punishment. But there may be cases where part taken by each of the accused may vary, one of the accused taking a part and other taking a subsidiary part, though their common object is to commit murder. In such a case, perhaps, there may be a good ground for differentiating the accused or inflicting punishment.
In this case, even if we give the benefit of doubt to the accused in respect of the particular injuries attributable to each accused, the fact remains that all of them, armed with deadly weapons inflicted 17 injuries brutally on the body of an unarmed man. Our view Is in accord with the decision in - 'Rajagopalan v. Emperor1 AIR 1944 FC 35 (G) There seven or eight persons, including the appellant armed with deadly weapons set upon the Assistant Inspector and inflicted injuries upon his person, as a result of which he died on the spot. Zafarulla Khan J. dealing with the contention in regard to the punishment to be inflicted in such cases observed at page 36 as follows:
We are unable to accede to the contention that in a case of conviction Under Section 302 of the Indian Penal Code read with Section 149, the appropriate sentence in all cases must be transportation for life. The question of sentence in each case depends upon the facts of the case. Had there been a finding that the appellants, though they were among the rioters, some of whom in pursuance of the common object of the unlawful assembly as at that stage constituted, caused the death of the Assistant Inspector, had themselves taken no part in the assault upon the deceased, there might have been some force in the suggestion that ttafe lesser sentence would meet the ends of justice in the case. There is no such finding in this case. On the contrary, the finding is that that appellants were among the 7 or 8 persons who inflicted the large number of injuries which the deceased received though the High Court did not go so far as to accept that part of the evidence which indicates the nature of the injuries that the appellants had actually inflicted. Having regard to all the circumstances of the case as disclosed in the efidencc, we are not disposed to hold in the case of either of the appellants that the sentences of death is inappropriate.
(18) We respectfully agree with the aboye observations. This argument of the learned -counsel also leads to the anomaly of one person stabbing, another getting the sentence of death, and a person with the help of others killing an innocent person. If there is nothing more in this case, we should have held that the learned Judge was right in convicting and sentencing the accused as he did.
But there is one important factor in this case if which we think may be taken as an extenuating circumstance for giving a lesser sentence. P. Wd 9 says in his evidence that all the accused appeared to have been drunk. It is also in the evidence of other witnesses that the 1st accused was fully drunk and that he sat on a boulder by the side of the dead body and even taunted P.W. 1 when handing over the ring of the deceased to him.
If they primed themselves with drink for the purpose of committing the offence, that circumstance cannot obviously be proved for mitigating the punishment. But the accused were manu-a factoring toddy Illicitly and they must have beerij getting drunk every day. One of the previous incidents, which are suggested to be the motive for the offence had taken place two months prior to the incident and another 10 days prior to that. There is no specific evidence that they had prepared themselves and taken a drink to strengthen. their minds, to commit the murder. It is more likely that after they got drunk and when they saw the deceased going to the field the night, they got the Idea of doing away with him in a, drunken state of mind and pursued him with weapons, which they must have had in ftiete1 garden and committed the murder.
Having regard to the abovesaid circumstances we must hold that it has not been established that they had taken to drink for the purpose of committing the murder. In any view, by giving the benefit of doubt to the accused, we hold that they were in a state of intoxication; the sub-cott-scious irritation at the earlier conduct of the deceased took shape into a violent animosity to commit the murder. In these circumstances, we think that this is a fit case for giving the lesser sentence of transportation for life to all the accused,