Mohd. Ahmed Ansari, J.
1. These three appeals have been filed against a judgment of the Sessions Court, Nanded, holding the three appellants, Mahajan, Babu and Yadav Rao, guilty of having murdered four persons in. a forest adjoining a village called Rajura Buzarg, and sentencing the appellants to life imprisonments.
2. The deceased are Jalba, the husband of Tanabai, Ramchander, a son of Tanabai by her predeceased husband, Hanmantha, the brother of Tanabai and Nago Rao, a son of Jalba by Tanabai. These persons were killed on May 9, 1951, at about 9 A.M. and in the evening of the same day the appellants were brought to the police station house of Mukarramabad where their blood-stained clothes and lathies were seized by the police after panchanamas relating to the articles had been prepared. The documents are marked as Exs. 1, 2 and 3, and were written at about 9 P.M. The appellants were then sent to the Magistrate for purposes of getting remand on May 10, and the Magistrate on May 11, granted seven days' remand asked for. Although the First Information Report in the case is dated May 9, 1951, and mentions the names of the appellants as well as of the eyewitnesses, P. Ws. 2 and 3, it did not reach the 'Court till May 19. Similarly the inquest reports of the four persons killed, which were prepared on May 10, were not received by the Magistrate till May 20, 1951. There is no denial of the fact that these documents reached the Magistrate's Court very late and had not the panchanamas relating to the recoveries of the blood-stained clothes from the persons of the appellants as well as the fact of their being remanded on May 11, been established in the case, the delayed First Information Report and inquest reports, which have been relied upon by the learned Advocate or the appellants would have been fatal to the prosecution case.
3. The case against the appellants is that Mahajan and Babu Rao are brothers and related to one Radhabai; Yado Eao is the son of Radhabai by her earlier husband; she remarried a person of Rajura Buzarg and had a son called Ganpati, who was killed earlier; then she adopted one Dada Rao, a son of Jalba and her fields were being managed and cultivated by the deceased Jalba; the appellants killed the aforesaid deceased persons in order to get possession of the properties.
4. Originally, four challans relating to the four persons killed were filed against four accused. The Magistrate discharged the fourth person; but committed the appellants to the Sessions Court who tried the four cases together, found the evidence sufficient and passed the sentences appealed against. In these appeals two arguments have been urged:
(1) One trial of the four offences of murders is contrary to the provisions of Section 234, Criminal P. C., whereby only three offences of the same kind can be charged together; and
(2) Having regard to the late receipt of the First Information Report as well as the inquest reports by the Magistrate and the main eyewitnesses being relations of the deceased persons as well as to the improbable nature of the story they deposed to, the prosecution case is not established beyond reasonable doubt, and there-fore, the convictions are bad.
5. In view of the four post mortem reports in the case, there is not the least doubt that the four persons were murdered. As already mentioned the scene of the occurrence is a forest adjoining the village where the deceased lived. Two divergent paths from the village converge near the area wherein the bodies were found killed. Tanabai, P. W. 2, swears that Ramchander and Nago Rao had gone earlier to the field and were ploughing, after a short time Jalba, her husband, proceeded to the fields, she left the village and followed the appellants who were going by the path different to that taken by her husband; with her were her daughter and the son adopted by the relation of the appellants; Mahajan had a stick; behind him were Babu Rao and Yado Rao who also had sticks; when they reached the converging point of the two paths, the appellant Mahajan dealt a severe blow with a stick on the neck of Jalba, Yadav and Babu Rao also came and began beating him on the head; then her brother Hanmantha shouted that they must not beat Jalba; thereupon the appellants assaulted him and smashed his head; her son Ramchander, who was in the field saw the fight, the appellants rushed towards him and assaulted him, they also beat him. shattering his skull, her other son Nago Rao seeing the accused ran away; they ran after him, the witness dared not to go near her relations lest her son and daughter who were accompanying her be assaulted; she returned to the village and put her son into a room, locked the house from outside; the appellants came to the village and told people that they have killed four persons; she told the Police Patel that the accused had killed three persons, and when she returned to the place where the dead bodies of her relations were lying she was informed that her son Nago was also killed.
Tukaram, P. W. 3, swears that he had gone to a field called 'Mahadenkadhed' to fetch mangoes from a tree; he was standing underneath the tree when he heard 'Maoo Maoo'; he saw Jalba who had fallen and the three appellants who were striking him; Hanmantha who was ahead, turned back to intervene and was also assaulted; then Ramchander who was proceeding towards the deceased was attacked by the three appellants and they killed him; Nago the other son ran and the appellants ran after him. Dev Rao, P. W. 4, swears that he was keeping a vigil over a mango tree in his field, he heard the sound 'millore Babu' and then he saw Mahajan and the other appellants beating Jalba, as Hanmantha turned shouting not to beat Jalba the appellants rushed towards him, after Hanmantha had fallen, Ramchander who was proceeding to the spot of occurrence was attacked, was also beaten and then the appellants ran after Nago Rao who seeing the attacks had started running away from the place. These are the three witnesses who depose to the murders of the father, the brothers-in-law and the son, whereas Govinda, P. W. 6, swears to the attack on the boy Nago Rao. who ran away from the spot. He swears that the appellants beat the boy to death. This witness in his cross-examination also says that he in-formed the mother about the death of the boy.
P.W. 7, who is the panch of the several inquest reports, prepared by the Investigation Officer when he came to the village next day, in answer to the Court's question says that he saw the appellants with blood-stained clothes when they were walking in the village at about 10 A. M. after the occurrence. Then P. W. 1, the Investigating Officer, swears that the three appellants were brought by the patel and he arrested them, seized their blood-stained clothes and lathies and the panchanamas of the blood-stained clothes (Exhibits 1, 2 and 3) were prepared; on May 10. 1951, he proceeded to the spot and prepared the Inquest Report. P. W. 5, the panch of the Exhi-bits, swears that in the evening of May 9, 1951, the panchanamas, Exhibits 1, 2 and 3, were prepared and lathies were also seized from the appellants, he identifies the articles as well as the panchanamas. The Chemical Examiner's reports show these articles seized from the persons of the appellants have blood-stains.
We are of the view that the fact of the eyewitnesses being relations of the deceased should not discredit their testimony; as there is in this case the corroborative evidence of the appellants being seen in the village after the occurrence in clothes stained with blood and these clothes were seized from their persons in the evening of the same day at the police station after drawing up proper documents. Had the accused been innocent some rational explanation would have been fourth-coming about these blood-stains on their clothes. That there is no delay in informing the Magistrate about their arrests is also established in the case. The seizure of such clothes as well as then going about in the village in such a condition after the murder are decisive of their being guilty. In these circumstances, we do not attach any importance to the arguments of the learned Advocate of the appellants that the story of the wife seeing the incidents accompanied by her two children, and the adopted boy having been spared are so unnatural as to make her evidence incredible.
6. We now come to the legal argument of the Advocate of the appellants that the joinder in one trial of more than three offences is bad and contrary to the provisions contained in Section 234, Criminal P. C. It is conceded that more than three offences can be tried jointly if they constitute the same transaction under Section 235 of the aforesaid Act. The evidence of the eye-witnesses discloses that the murders of Hanmantha, Ramchander and Nago Rao are so related to one another as to form consequences of or subsidiary acts to the murder of Jalba. There are authorities that the question of whether several offences are so connected as to form the same transaction within the meaning of Section 235 of the Act is more a question of fact than of law. Thus - 'Mookerjee J. in Amritalal Hazra v. Emperor' AIR 1916 Cal 188 (A), has said that:
A comprehensive formula of universal application cannot be framed to determine whether two or more acts constitute the same transaction: but circumstances which must bear on the determination of the question in an individual case may be easily indicated; they are proximity of time, unity or proximity of place, continuity of action and community of purpose or design.
7. In - 'Nabijan v. Emperor' AIR 1947 Pat 212 (B), prima facie test is a certain degree of continuity of action. The substantial test has been held in - 'State of Mysore v. Sampangiramiah' AIR 1953 Mysore 80 (O, to be whether the several offences are so connected as to form -cause and effect or as principal and subsidiary acts. Applying the aforesaid tests to the facts of the present case, we are satisfied that the depositions of the eye-witnesses do establish that all the four murders were committed in such a proximity of time and place as to make them one continuous action. Indeed, each appears as the consequence of the other. Therefore, the trial of the four murders together in this case each bing interlinked with the other as cause and effect is Justified by the provisions of Section 235(1) Criminal P. C. and is not vitiated as being contrary to Section 234 of the Act.
8. In conclusion, we would point out that we do not agree with the Sessions Judge's view that the life imprisonment is the proper sentence in the case. In murder cases, sentences of death should ordinarily be imposed unless there be other mitigating circumstances. Youth in every case is not such a circumstance. The trial Judge, however, has the discretion to impose the lesser punishment of transportation for reasons recorded by him, and those reasons must be such that a judicial mind could properly find on them. However, the appellate Court should not, as has been pointed in -'Dalip Singh v. State of Punjab' : 1SCR145 , interfere with that discretion and enhance the sentence on the ground that left to itself it would have awarded a greater penalty. We have, therefore, not enhanced the sentences passed in the appeals though we disagree with the Sessions Judge on the question that the appellant's young age is a good ground for their being punished less severely. There are no reasons why the appellants should be acquitted and their appeals are disallowed. This judgment will govern all the three appeals.