Basi Reddy, J.
1. The seven appellants (who will be referred to as A-1 to A-7 respectively) were tried by the learned Sessions Judge of Srikakulam on charges of rioting, murder, causing hurt and cognate offences in connection with an incident which took place on 6-7-1961 just after sunset in the village of Madhavarayunipuram. In the course of that incident, a woman called Deesari Appamma, the mother of P. Ws. 1 and 2 in the case, was killed and three others of that family viz., Gangamma, the grandmother of P. Ws. 1 and 2, as well as P. Ws. 2 and 3 sustained simple injuries. P. W. 2 is the younger brother of P. W. 1 and P. W. 3 is P. W. 1's wife.
2. As many as eight charges were framed against the accused. The first charge was against all the seven accused under Section 147 I.P.C. for having formed themselves into an unlawful assembly and committed rioting with the common object of causing the death of P. W. 1 and beating up his people. The learned sessions Judge convicted all the seven accused on this count, but did not pass any separate sentence, on the ground mat he was passing a sentence on A-2 to A-7 under Section 302 I.P.C. by the application of Section 149 I.P.C.
3. The second charge was under Section 148 I.P.C. against A-1 and A-7 for having committed rioting with the aforesaid common object armed with deadly weapons viz., knives. The learned Judge convicted these two accused under this section and sentenced each of them to suffer six months' rigorous imprisonment. While the sentence passed on A-1 on this charge is unexceptionable, the learned Judge, although he referred to a decision of this Court in Boya Hussainappa, In re, 1958 Andh LT 109, forgot to apply the principle enunciated in that decision to the case of A-7, whom the learned Judge sentenced under Section 302 read with Section 149 I.P.C. The ratio of that decision would apply as much to a sentence under Section 148 I.P.C. as to a sentence under Section 147 I.P.C. because both deal with the offence of rioting -- one with rioting simpliciter and the other with rioting armed with deadly weapons. This, however, will not be of any consequence, in view of the ultimate decision which we shall give in this case.
4. The third charge was against A-1 alone under Section 302 I.P.C. for having committed the murder of Deesari Appamma by striking her on the neck with a knife. The charge should strictly have been under Section 302 read with 301 I.P.C. But that again is of little moment in this case, because the ultimate finding of the learned Judge on the evidence was that in attempting to kill P. W. 1, A-1 had caused the death of P. W. 1's mother, Appamma, and the learned judge has held A-1 liable to be punished for the murder of Appamma under Section 302 I.P.C. by virtue of Section 301 I.P.C.
5. The fourth charge was against A-2 to A-7 under Section 302 read with Section 149 I.P.C. and the averment was as follows:
'Fourthly; that you, A-2 to A-7 at about the same time, place and during the course of the same transaction were members of an unlawful assembly and in prosecution of the common object of such assembly, viz., in causing death of Deesari Bojjannadora and in beating up his people, one of the members, namely, Girada Narayana (A-1) caused the death of Deesari Appamma and you are thereby under Section 149 of the Indian Penal Code, guilty of causing the said murder, an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.'
The learned Judge convicted A-2 to A-7 on this charge and sentenced each of them to imprisonment for life.
6-16. (His Lordship referred to other charges, facts of the case and the evidence and then proceeded)--
17. As regards the conviction of A-1 and A-7 under Section 148 I.P.C. (2nd charge) and A-2 to A-6 under Section 147 I.P.C. (1st charge), there is ample evidence of a convincing nature to warrant our upholding those convictions. The conviction of A-1 and A-7 under Section 147 I.P.C. on charge No. 1 is a mere duplication and is therefore set aside.
18. For the reasons set out supra we confirm the conviction of A-1 on the third charge under Section 302 read with Section 301 I.P.C. for having caused the death of Appamma; and as the lesser sentence awarded by the lower Court is the appropriate one in the circumstances of the case, we confirm it.
19. As regards the conviction of A-7 under the fifth charge for having caused hurt to Gangamma, we confirm that conviction also as it is fully supported by the evidence on record; and as the sentence of one year's rigorous Imprisonment is not excessive, we confirm that also.
20. The conviction of A-3 under the sixth charge under Section 323 I.P.C. and the sentence of six months rigorous imprisonment under that count, and the conviction of A4 under Section 323 I.P.C. under the seventh charge and the sentence of six months' rigorous imprisonment thereunder, are also confirmed in view of the overwhelming evidence to sustain those convictions, including the evidence of the victims themselves.
21. The more Important question which calls for determination in this case is whether the conviction of A-2 to A-7 under Section 302 read with Section 149 I.P.C. on the fourth charge can be supported. The common object as charged was to cause the death of P. W. 1 and to beat up his people. The finding of the learned Sessions Judge however was, to use his own words, 'to cause at least grievous hurt to P. W. 1 and such other persons who offered resistance or obstruction to them while they were engaged in the prosecution of their common object. It is the case of the prosecution itself, that although the common object of the unlawful assembly was to cause the death of P. W. 1, in fact his death was not caused, but the person whose death was caused by A-1 was Appamma, the mother of P. W. 1. The murder of Appamma could not have been in the contemplation of even the assailant himself viz., A-1; if so a fortiori, the other members of the unlawful assembly, A-2 to A-7, could not have known it likely that the old woman would be killed in the course of the rioting. The assailant himself is made liable for murder by the application of what in English law is known as a transfer of malice or a transmigration of motive. This is provided for in our Penal Code by Section 301, which runs as follows:--
'If a person, by doing anything which he intends or Knows to be likely to cause death, commits culpable homicide by causing the death of any person, whoso death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or Knew himself to be likely to cause.'
It is clear from the terms of the above section that it applies to a situation where a person causes the death of another, whose death that person neither intends nor knows himself likely to cause. That being so, it is rather difficult, as a process of logical reasoning, to apply Section 149 I.P.C. to a situation like that, because this Section provides:--
'If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.'
This section contemplates 'inter alia' the commission of an offence which the members of the assembly knew likely to be committed in prosecution of the common object of the unlawful assembly. If by the terms of Section 301 I.P.C., the offender could not have known it likely that he would cause the death of the person whom he has actually killed, equally, by the terms of Section 149 I.P.C., the other members of the unlawful assembly, that is to say, the members other than the member who has actually caused the death of the person could not have known it to be likely that the death of that particular person would be caused'.
Applying these propositions to the facts of the present case, it will be seen that when A-1 aimed a blow with his knife at P. W. 1, It could not have been even in his remote contemplation that P. W, 1's mother would butt in, receive the blow and get killed in consequence. So we find it difficult, as a matter of law, to apply Section 149 I.P.C. to the facts of this case. This view or ours is one of first Impression, since no authority has been placed before us to aid us in solving this problem.
22. That apart, on the facts of this case, we are unable to agree with the learned Sessions Judge that the common object of the unlawful assembly was to cause the death of P.W.1 or any one of his family; nor can it be said with judicial certitude that the members of the unlawful assembly knew it to be likely that murder would be committed in prosecution of the common object. The dispute with regard to the land was a long-standing one, and the proximate cause of the trouble appears to have been the wounded dignity of the accused by reason of P. W. 1 and the members of his family, who belong to a lower caste, taking precedence in the matter of offering worship to the local deity. The probabilities are the he accused went to the house of P. W. 1 to chastise him. In legal parlance, to cause hurt to P. W. 1 and to the members of his family. If that be so, the legitimate inference would be that A-2 to A-7 cannot be constructively made liable for the act of A-1 in causing the death of the old woman Appamma. We would, therefore, set aside the conviction of A-2 to A-7 under Section 302 read with Section 149 I.P.C. and the sentence of imprisonment for life passed on each of them.
23. We have already upheld the conviction of A-1 and A-7 under Section 148 I.P.C. and the conviction of A-2 to A-6 under Section 147 I.P.C. Now that we have quashed the conviction of A-2 to A-6 under Section 302 read with Section 149 I.P.C., there is no legal impediment in the way of our awarding a sentence to these accused under Section 147 I.P.C. In view of the fact that all the accused had acted in a high-handed manner, we would sentence each of these accused to rigorous imprisonment for one year under this count. We confirm the sentence of six months' rigorous imprisonment passed on A-1 and A-7 under Section 148 I.P.C. The sentences passed on A-3, A4 and A-7 will run concurrently.
24. The net result will be that A-1 will undergo imprisonment for life, while A-2 to A-7 will undergo rigorous imprisonment for one year. The appeal is allowed to the above extent.