Krishna Rao , J.
(1) These appeals arise out of the JUDGMENT of the Sessions Judge, Khammam in sessions Case No. 13 of 1959, Sentencing all the four accused to rigorous imprisonment for seven years each under S 326 read with S. 34, Indian Penal Code and to rigorous imprisonment for two years each under S 324 read with S. 34 Indian Penal code and accused 1 and 2 to rigorous imprisonment for seven years each under also S. 392 read with S. 397, Indian Penal Code. The convictions under S. 326 read with s. 34 were upon charges under s. 302 read with s. 34, Indian Penal code for the murder of two persons, Narayana and Jankayya, in the village of Jammalapuram at about 4 p. m. on 12-12-1958. The convictions under s. 324 read with s. 34 were for hurt caused at the same time to Raghvaiah (P. W. 1) and to Seetharamaiah (P. W. 2). The convictions under 392 read with S. 397 Indian Penal Code were for the robbery of a cartload of paddy from Narayana's possession. appeals Nos. 654, 689 and 694 of 1959 are bought by the accused against then convictions and sentences. Appeal No. 12 of 1960 of 1959 are brought by the accused against then convictions and sentences. Appeal No. 12 of 1960 is brought by the Public Prosecutor and is directed against the acquittal of the four accused for the offence under section 302 read with S. 34, Indian Penal Code.
(2) The prosecution case is briefly that at about 6 p.m. on 12-12-1958, while Narayana (1st deceased)along with his younger brothers Jankayya (2nd deceased) and Raghavaiah (P. W. 1) and his son Seetharamaiah (P. W. 2) was carting the paddy produce 'Khandriga' land to his house at Jammalapuram he tow accused attacked them in one Venkateswaraos pasture land with spears and sticks (M Os. 1 to 3 and 8), causing fatal injuries to the two deceased and simple hurt to P. Ws. 1 and 2 and removed the entire paddy to the 2nd accused 's house. The motive for the crime was that the 1st accused , who is the 1st deceased's divided son and is closely related to accused 2 to 4, claimed a share in the paddy produce of 'Khandriga' land after raising disputes some time earlier over the partition of the family properties which had taken place in 1955. When the two carts loaded with paddy, passed by one Lakshminarayana's pasture land, accused 1 to 3 obstructed them unsuccessfully and chased the carts for some distance pelting stones. This part of the event is spoken to by P. Ws. 1, 2, 7, 8 and 10.
When the first cart came on to Venkateswararao's pasture land, the 4th accused appeared, promised to settle amicably the quarrel between the father and the son and prevailed upon the two deceased and P. Ws. 1 and 2 to surrender the two spears (M. Os. 1 and 2) and the two sticks (M. Os. 3 and 8) which they were carrying. Immediately he attacked the 1st deceased with one of the spears. Accused 1 to 3, who came behind him, picked up the remaining weapons at the same time and attacked P. W. 1 the 2nd deceased and P. w. 2 respectively. After the victims fell down with injuries, the 1st accused twisted the hands and legs of all the four of them . Accused 1 and 2 took away the paddy. The attack on the two deceased and P. Ws. 1 and 2 was seen by P. Ws. 3 to 6 and 11 who were about 20 or 30 yards of, but P. Ws. 5, 6 and 11 were hostile at the trial. a farm servant (P. W. 8) carried the four injured persons, one after the other to the 1st deceased's persons, one after the other to the 1st deceased's house and the deceased 1 and 2 died there at about 5 p. m. respectively on the same day.
(3) The village magistrate (P. W. 13) went to the 1st deceased's house a little after the latter died at about 5 p. m. questioned P. W. 2 who alone was conscious and sent a report (Ex. P. 8) to the police. In Ex. P. 8, the names of the four accused are given as the assailants who beat and speared the two deceased and P. Ws. 1 and 2; and the witnesses are mentioned as P. Ws. 4 and 5 "and others". The Medical evidence is that the 1st deceased had 15 injuries including three fractures of the limbs, out of which 10 were incised wounds and could have been caused by a spear and the rest could have been caused by spear sticks. The 2nd deceased had 10 injuries, including a fracture of the right clavicle and four fractures of the limbs, all of which could have been caused by a stick and were of the same age as the 1st deceased's injuries. Both died on account of the shock due to multiple injuries. P. Ws. 1 and 2 had three and nine simple injuries respectively and all of them could have been caused by a stick.
The Circle Inspector of Police at Madhira (P. W. 20) reached Jamalapuram on the morning of 13-12-1958 and found blood stained earth and a trial of blood in Venkateswararo's pasture land. The 1st accused was arrested on the morning of 14-12-1958 and was interrogated by P. W. 20 in the presence of mediators. he took them to his house and produced two spears and a stick (M. Os. 1 to 3) from within his room. The he took them to 2nd accused 's house and showed 22 bags of paddy lying on the verandah. P. W. 20 searched the 2nd accused 's house and recovered a second stick(M. O. 8) and some vessels (M. Os. 4 to 7) which had been in the deceased's cart at the time of the occurrence. Accused 2 to 4 were absconding and surrendered in Court after the police laid the charge sheet in the case.
(4) The defence of all the accused consisted of a denial knowledge of the occurrence. the 1st accused said that were no disputes between him and his father. the 2nd accused said that he away at the village of Tallur, but called no witnesses in support of alibi. The learned Sessions Judge held with regard to the events that took place at Lakshminarayana's pasture land that the story of P. Ws. 1, 2, 7, 8 and 10 as to the chasing of the carts and pelting of the stones by accused 1 to 3 merely attempted to obtain a share of the paddy at that stage. But he believed the evidence of P. Ws. 1 to 4 as to the events that subsequently took place at Venkateswararao's land and held that the four accused together had indiscriminately beaten the two deceased and P. Ws. 1 and 2 with M. Os. 1 to 3, and 8, which originally belonged to the deceased's party and were identified by P. Ws. 1 and 2 . He found that there was no proconcerted plan on the part of the accused to kill the two deceased and that the common intention of the accused was only to beat the victims. he also found with regard to the removal of the paddy that only the taking of the first cart by accused 1 and 2 was satisfactorily proved. As a result of these conclusions he convicted and sentenced the four accused as mentioned above.
(5) The medical evidence and the observations of the Circle Inspector (P. W. 20) at the scene amply bear out the prosecution case that the two deceased and P. Ws. 1 and 2 were attacked in Venkateswararao's pasture land at about 4 p. m. on 12-12-1958. the main question for consideration in the appeals preferred by the accused is whether the direct evidence of P. Ws. 1 to 4 as to the acts of attack can be safely relied upon.
(6) With regard to the disputes that had arisen between the 1st deceased, the evidence of P. Ws. 1 and 2 is supported by P. W. 13, the village Magistrate and P. W. 14, a maternal uncle of the 1st accused . P. W. 12 whose wife had purchased the 'khandriga' land and leased it to the 1st deceased, says that on the morning of 12-12-1958, the 2nd accused in the presence of accused , 1, 3 and 4 warned him not to go into the land as they have to get the threshed paddy. Thus, although the parties are closely related to one another there is nothing intrinsically improbable in the prosecution story that the accused resorted to violence for the purpose of enforcing the 1st accused 's demand for a share in the paddy.
(7) In order to dial with the comments of the learned counsel against the reliability of the direct evidence , it will be convenient to review the evidence of P. Ws. 1 to 4.
(8) P. W. 1 Raghavaiah is the younger brother of the 1st deceased and the elder brother of 2nd deceased. He says that about ten days before the occurrence, he and the 2nd deceased came from their house at Jagannadhapuram to stay with the 1st deceased at Jamalapuram for the purpose of helping the latter in the work of gathering the crops. he speaks of the disputes over the 'Khandriga' land that had arisen earlier between the 1st deceased and the 1st accused and describes how he and the 2nd deceased and P. Ws. 2, 8 and 10 started from the 'Khandriga' land at about 4 p. m. , on 12-12-1958 with two carts loaded with paddy to go to Jamalapuram. They were having tow spears (M. Os. 1 and 2) in order to protect themselves against wild beasts and also because P. W. 12 had told them about the threat of the accused to obstruct them. When they came to Lakshminarayana's pasture land, accused 1 to 3 armed with sticks obstructed the first cart, demanding the 1st accused 's share of the paddy. Thereupon, P. Ws. 1 and 2 armed themselves with spears M. Os. 1 and 2, and along with the 2nd deceased who had a goad stick, asked accused 1 to 3 to allow the carts. The carts proceeded but accused 1 to 3 followed pelting stones from behind. The first cart proceeded for a distance of about 1 1/2 furlongs and got into Venkateswarao's pasture land. The second cart got stuck up in a stream about 60 yards behind. By that time the 1st deceased had joined them. The 4th accused came to them pretended that he would adjust the differences between the father and the son and took their spears and sticks from them. He kept one spear with him and threw behind their other spears and two sticks. Accused 1 to 3 came there at this stage and the 2nd accused picked up the sticks. The accused commenced the attack immediately and P. W. 1 describes it thus :
"A. 4 immediately thereafter hit my brother Narayana, on the top of his head, with the wooden part of the spear and then pierced somewhere in the region of the temple of Narayana A. 1 to A. 3 pounced upon us. A. 1 attacked me ; A. 3 attacked Sitha Ramaiah and A. 2 attacked Jankaiah. They beat us indiscriminately all over the body with spear sticks. They continued beating us even after we fell to the ground. A. 1 further twisted the legs and hand of all of us after we fell to the ground and were hit with sticks and spears. he did this for all of the four of us. The other three accused were exhorting A. 1 not to leave any one of us alive saying that they would otherwise kill him also, then and there. We were only semi conscious when we fell to the ground with beating given to us."
The 1st accused desisted from trying to beat again P. W. 2. only at the intervention of P. W. 5 and all the accused went away there after.
In cross-examination he adds that the 3rd accused gave him a spear thrust on the right side of the hand and that after he (P. W. 1) fell \down to the ground he saw the 2nd accused giving a spear thrust to the 2nd deceased. ,One criticism is that these blows with spears mentioned by him are inconsistent with the medical evidence that he and the 2nd deceased had only stick injuries. But as observed by the trial Judge, they are only inaccuracies natural to an indiscriminate attack by four assailants. Another criticism is that some of the particulars in P. W. 1's evidence are inconsistent with his statement during the investigation. he told the police that he had a stick and not that he had a spear. This fitted with P. W. 2's statement before the police that it was P. w. 2's and the 2nd deceased that armed themselves with the spears removed from the carts. P. W. 1 did not also tell the police that any others besides the 1st accused beat him nor about the alleged exhortation to the 1st accused by accused 2 to 4. But the question whether it was P. W. 1 or it was the 2nd deceased who had the spear, which they did not use as they were disarmed, is an immaterial detail. The discrepancies are not such as to affect P. W. 1's veracity though of course no reliance ought to be placed on improvements to the detriment of the accused .
(9) P. W. 2 Seetharamaiah, is one of the undivided sons of the 1st deceased and corroborates P. W. 1. he says that when the second cart got stuck up in the stream, P. Ws. 8 and 10 took charge of it. This accounts for P. Ws. 8 and 10 being unable to see the attack, which took place by the side of the first cart. he says further that he alone was in a state of agony when the Village Magistrate (P. Ws. 13) enquired him. This is corroborated by P. W. 13 and sufficiently explains why Ex. P. 8 does not contain a full and detailed account of the events. We therefore see no force in the criticism that according to Ex. P. 8, the four accused came to the scene armed with spears and sticks, while the version at the trial is that the 4th accused obtained the weapons from the deceased's party by a stratagem. P. Ws. 13 says, that P. Ws. 2 found it very difficult to talk at the time. It is natural that only a bare outline of how the two deceased and P. Ws. 1 and 2 received their injuries was narrated in Ex. P. 8.
(10) P. Ws. 3 Venkatareddi was extracting jute at a distance of about 30 yards frrom the scene and corroborates P. Ws. 1 and 2 as to the events that took place thereon. He is disinterested witness belonging to a different community. he says in cross-examination that Rama Krishnaiah (1st accused ) picked up the 2nd deceased's spear stabbed and beat, P. W. 1 with it although the version in his examination in chief was that this spear was picked up by the 2nd deceased. In his earlier statement recorded under S. 164 Cr. P. C., he said that the 1st accused beat P. W. 2 with a spear and that 3rd accused beat P. W. 1 Having regard to the fact that there was a simultaneous attack by the four accused against the four victims, all in close proximity to one another, these discrepancies are natural and do not lead to the inference invited by the learned counsel that P. W. 3 did not really see the occurrence. It is true that he was not specifically named as one of the witnesses in Ex. P. 8, which merely mentioned P. Ws. 4 and 5 "and others". But this does not mean that he is a belated witness, as he was examined by the circle Inspector on 13-12-1958 itself.
(11) P. W. 4 Muneyya, is a dhobi who was washing clothes at a distance of about 20 yards from the scene. he is another interested witness who corroborates P. Ws. 1 and 2 as to what happened there. His name is given in Ex. P. 8. There is no force in the criticism that his eye sight was too bad to enable him to observe the attack, because he says that his eye-sight deteriorated only about a month prior to his giving evidence on 14-9-1959.
(12) After giving our best consideration, we agree with the trial Judge in believing the evidence of P. Ws. 1 and 4 as to what took place at the scene. We have to notice, however, that both P. Ws. 3 and 4 do not say like P. Ws. 1 and 2, that all the accused beat all the injured persons or that they continued to beat all the injured persons or that they continued to beat even after the injured persons or that they continued to beat even after the injured persons fell to the ground. No doubt P. Ws. 3 and 4 says that the 1st accused twisted the hands and legs of the fallen persons. But this act of the 1st accused did not result in any visible injury because the medical evidence is that none of the fractures of the two deceased could have been caused by twisting the limbs. From the evidence of P. Ws. 3 and 4, it appears that the 1st accused alone hit P. W. 1 with stick, the 2nd deceased with a spear that the 3rd accused alone beat P. W. 2 with stick that the 3rd accused alone beat P. W. 2 with stick and the 4th accused alone hit the 1st deceased with spear. On the other hand, according to P. Ws. 1 and 2 all the accused hit all the four injured persons indiscriminately to the end and it is not possible to apportion the injuries caused between the different accused . This conflict raises a doubt as to the extent of the liability of accused 1 and 3, with which we shall deal later in this judgment .
(13) It is suggested by the learned counsel for the appellants that some suspicion attaches to the circumstances in which Ex. P. 8 came into existence. the suggestion is based on a discrepancy between the evidence of P. W. 17, the Head constable of Yerrupalem outpost and P. W. 19 the Head Constable of Mathira Police station. Yerrupalem is bout four miles and Mathira is about 14 miles from Jamalapuram. According to P. W. 19, a telephone message about the murders was sent by P. W. 17 at about 3-30 or 4 A. M. on 13-12-1958. On the other hand P. W. 17 who speaks of having received Ex. P. 8 at about 8 P. M. and despatched it to Mathira a little after 9 P. M. on 12-12-1958, denies having talked to the Sub Inspector or the Circle Inspector on telephone. In our opinion the discrepancy has no significance. It appears from the Circle Inspector's deposition that the information about the occurrence was conveyed by a police constable of Yerrupalem to the railway station master there and that the latter informed the railway station master at Mathira by phone, who conveyed the news through a railway cooly to the Circle Inspector and the Sub inspector. As the telephonic information originated at Yerrupalem, P. W. 19 seems to have thought that it was sent by P. W. 17.
(14) The learned counsel raised a contention that the earliest statements recorded from the witnesses during the investigation have been suppressed and that the accused have been thereby prejudiced. The circle inspector said that he typed the statements of all the witnesses by means of his Portable Remington typewriter, while they were making the statements except that of P. W. 2 which was written in pencil as he was examined on his way to the hospital. The Sub-Inspector recorded the statements of only four or five persons who were not called as witnesses. As against this it was elicited from P. Ws. 3, 4 and 7 in cross examination that their statements were not typed but were recorded in manuscript P. W. 3 said :
"The police took down my statement . . . . . . . . and not on type."
(15) P. W. 4 said "The sub Inspector recorded my statements with a pen and not on type machine.'
(16) Similarly P. W. 7 said "I was examined by the police . . . . . . . . . . It was taken down with a pen."
(17) It is urged by the learned counsel that the evidence of P. Ws. 3, 4 and 7 should be preferred in this respect as being more probable, especially as the circle Inspector did not furnish copies of the statements of the witnesses to the Magistrate on 15-12-1958 along with his report (Ex. D. 3) for remanding the 1st accused.
(18) It is true that if the earliest statements of material witnesses were suppressed with the result that an accused is deprived of valuable material to test their veracity under S. 162 Cr. P. C. an almost irresistible inference of prejudice to the accused would arise. Pulukuri Kotayya v. emperor, AIR 1947 PC 67. The learned counsel relies on an observation of Chandra Reddy, J. (as he then was) in re B. J. Reddy, AIR 1957 Andh Pra 561 at p. 564 for the position that form the mere omission to send a copy of the entries in the case diary as required by S. 167 Cr. P. C. along with the remand report, it may reasonably be inferred that they had report, it may reasonably be inferred that they had not come into existence by that time or at any rate in the shape ultimately given to them. This was followed by Jaganmohan Reddy, J who spoke for the Division bench in Criminal Appeal No. 443 of 1957 dated 7-10-1958 (Andh Pra.) and in criminal Appeal No. 135 of 1959 dated 1-3-1960 (Andh. Pra).
In B. J. Reddy's case there was other abundant material to show that the case diary was manipulated and really prepared after the remand report and this was referred to immediately after the observation in question in paragraph 15 of the judgment at page 564 of the report. It was obviously in view of the particular circumstances of the case that the inference was drawn. The observation cannot be regarded as laying down a general rule that whenever a copy of the entries in the case diary is not sent by the Police officer along with the remand report under s. 167 Cr. P. C. the proper inference would be that the case diary is antedated and got up subsequently. The omission in a particular case to comply with the duty under S. 167 Cr. P. C. may well be due to the ignorance of the provision or to the erroneous practice of Magistrates in not requiring it and of the police officers conveniently thinking it to be unnecessary work. The question is one of fact and inference has to be drawn having regard to all the circumstances. the omission would be only one of the relevant circumstances and it is not as if the law raises a general presumption of oblique motive against the police officers. If there is credible evidence that the entries were already in existence, it would not necessarily be out-weighed by a mere omission to send a copy of them along with the remand report.
(19) In the present case there are absolutely no reasons to think that the Circle Inspector was interested one way or the other or was likely to given a new shape to the statements of the witnesses. P. Ws. 3, 4 and 7 are illiterate persons and had to answer in the witness box from their recollection as to whether their statements were written in manuscript or typed about nine months earlier. They might have naturally made mistakes and the evidence of the circle Inspector must be preferred in this respect. We must reject the contention that the earliest statements of the witnesses in this case have been suppressed and it follows that no question of prejudice to the accused arises.
(20) In the appeal preferred by the Public Prosecutor the main question that arises for consideration is whether the attack on the two deceased to the extent to which it was carried out was in furtherance of the common intention of the accused . There can be no doubt that if an individual accused had committed all the injuries sustained by either of the deceased, the act amounted to murder as defined in S 300 Indian Penal Code Both the deceased died as a direct result of the injuries, the 1st deceased within about an hour and the 2nd deceased within about 3 hours after the injuries were inflicted. The prosecution have specifically elicited from the medical officer. (P. W. 9) with reference to the 1st deceased that there was no other contributory cause for his death except the injuries. He does not say this in so many words in regard to the 2nd deceased. But he has recorded in the post mortem (Ex. P. 7) that there was no abnormality in any of the internal organs. In our opinion , the only possible conclusion from this evidence is that the injuries of both the deceased are sufficient in the ordinary course of nature to cause death, although unfortunately the prosecution neglected to directly elicit this fact from P. W. 9 a they ought to have done. An offence of murder was clearly committed in respect of each of the deceased within the meaning of clause 3 of S. 300 I. P. C.
(21) The learned counsel urges that none of the accused is proved to have had the intention specified in clause (3) of S. 300 Indian Penal code. because the effect of the medical evidence is merely that the totality of the injuries was sufficient in the ordinary course of nature of cause death, while the effect of the evidence of P. Ws. 1 and 2 is that each of the accused could have inflicted only some of those injuries. he relies in this connection on the connection on the decision of a Division bench of this Court in In re Mahanandi Reddi, . There four accused stabbed or hit murdered man with two spears a hatchet and stick inflicting 12 injuries which caused his death a little while later. The learned Judge upheld the conviction of the accused under S. 304 , part 2 read with S. 34 Indian penal code and declined to convict them murder, on the ground that they did not have the intention to constitute an offence under S. 300 Indian Penal code. Manohar Pershad, J. who spoke for the Division Bench dealing with clause (3) of S. 300 I. P. C. said :
"Section 300 would only apply if it were possible to go a step further and say that the offender intended the injury to be sufficient in the ordinary course of nature to cause death.
(22) The attention of the learned Judges does not appear to have been drawn to Virsa Singh v. state of Punjab, where clause 93) of S. 300 was constructed and Bose J. Said :
It was said that the intention that the section requires must be related not only to the bodily injury inflicted but also to the clause," and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature then the intention is to kill and in the event the "thirdly" would be unnecessary because the act would fail under the first part of the section'.
"To put it shortly, the prosecution must prove, the following facts before it can bring a case under S. 300 "Thirdly"
First it must establish quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved, these are purely objective investigations.
Thirdly it must be proved that there was an intention to inflict that particular bodily injury, intentional or that some other kind of injury was intended.
Once these three elements are proved to be present the enquiry proceeds further and,
Fourthly it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do so with the intention of the offender.
Once these four elements established by the prosecution ( and, of course, the burden is an the prosecution throughout) the offence is murder is under s. 300 "thirdly". it does not matter that there was no intention to cause death. it does cause an injury of a kind that is sufficient to cause death in the ordinary course of nature(not that there is any real distinction between the two.) It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether , as a matter of purely objective inference the injury is sufficient in the ordinary course of nature to cause death. no one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
(23) In the present case, whether we accept the evidence of P. Ws. 1 and 2 or of P. Ws. 4, it cannot be said that the infliction of the totality of the injuries was accidental or unintentional.
(24) Having regard to clause (3) of S. 300, Indian Penal Code, the learned Sessions Judge was error in the view he took that for a conviction under S. 302 read with S. 34 Indian Penal Code, the existence of a common intention to beat is insufficient and that a common intention to kill is always necessary Even if the common intention is merely to beat, if the bodily injury intended to be inflicted by the beating is found to be sufficient to cause death in the ordinary course of nature the mens, rea required for liability under S. 302 read with s. 34, Indian Penal Code would be satisfied. The question would depend upon the extent to which the beating was carried out in furtherance of the common intention. But if the acts exceed the common intention, S. 34 would of course not be applicable.
(25) In the case of Kripal v. State of U. P. the facts were that out of the three assailants, Sheoraj beat Jiraj with a lathi causing no visible injury; Kripal stabbed Jiraj with a spear without any penetration causing a simple injury and Bhopal stabbed deep with a spear on the jaw of Jiraj, which caused Jiraj's death at once. Their Lordships of the Supreme Court found that having regard to the nature of their earlier assaults on two other persons the parts of Jiraj's body on which the assaults of Kripal and Sheraj were aimed and the actual results of these assaults, the common intention to kill Jiraj could not reasonably be attributed to the assailants. A common intention to beat Jiraj and cause only grievous injuries was attributed and in this view, Sheoraj and Kripal were held to be guilty under S. 326 Indian penal code and Bhopal alone was held to be guilty under S. 302, Indian penal code. The conclusions was that Bhopal's act exceeded their common intention.
(26) In the case of Pandurang v. State of Hyderabad , there was no evidence of any prior concert and on the facts disclosed there was no warrant for an inference of common intention. It is clear that their Lordships intended to confine their conclusions to the particular facts, because they observed:
"Each case much rest on its own facts and the mere similarly of the facts in one case cannot be used to determine a conclusion of fact in another."
(27) In the present case, the stratagem by means of which the accused disarmed their victims and immediately carried out the attack with the same weapons leave no doubt that they had formed a pre-arranged plan. We are unable to agree with the learned Sessions Judge's view that the 4th accused might have desired merely to save his friends from a possible attack, because there was no interval between the disarming of the deceased and their men and the attack upon them. The accused's coming unarmed was only part of the stratagem if they succeeded in which as they did there was no risks of an injury to themselves. As they formed the plain with the object of overpowering the deceased's party and seizing the paddy, the common intention that may be initially attributed to them would be merely at causing hurt to the deceased and their men. If we found ourselves on the evidence of P. Ws. 3 and 4, it would follow that the acts of accused 2 and 4 were in excess of that common intention and accused 2 and 4 alone would be under S. 302 Indian penal code for the murder of the 2nd deceased and the 1st deceased respectively, and accused 1 and 3 would be liable only under S. 324 read with S. 34 Indian penal code on the charge against them relating to these murders.
On the other hand, if we act on the evidence of P. Ws. 1 and 2, all the accused must have developed a common intention, after obtaining the weapons, to commit the murders. They did not stop the beating after the victims fell to the ground, which was sufficient to enable them to seize the paddy, but combined to beat indiscriminately to the end. On the evidence of P. Ws. 1 and 2, it is not reasonable to hold that any one of the accused did what the others did not intend. All the accused would therefore be liable under S. 30 read with s. 34 Indian penal code. The benefit of doubt arising from the difference between the evidence of P. Ws. 1 and 2 and that of P. Ws. 3 and 4 must go to the accused , especially as the trial Judge's finding with regard to the events in Lakshminarayana's pasture land implies that P. Ws. 1 and 2 were prone to exaggeration.
(28) Turning to the conviction of accused 1 and 2 for robbery the learned counsel is unable to assail the trial Judge's appreciation of evidence of P. W. 2, on which the conviction is based. The 1st accused used a stick and the 2nd accused used a spear at the time of the robbery . It is not suggested that the stick which is either M. O. 3 or M. O. 7. and is described in the panchanamas (Exs. P. 14 and P. 16) is not a deadly weapon. Although we have found that the 1st accused is not liable for causing grievous hurt, as he used a deadly weapon he is liable just like the 2nd accused under S. 397, Indian Penal Code for the robbery.
(29) In the result, the convictions and sentences of all the accused under S. 326 read with S. 34 Indian penal code are set aside. Accused 1 and 3 are convicted instead under s. 324 read with S. 34 Indian penal Code and sentenced to rigorous imprisonment for two years each accused 2 and 4 are convicted under S. 302 read with S. 34, Indian Penal Code and sentenced to imprisonment for life each. The other convictions and sentences will run concurrently.
(30) The appeals are allowed in part to the above extent.
(31) Appeal allowed partly.