1. Har Sahai, his brother Ramesh and their father Babu Lai, Kayesfcha, oi village Janigaon, in district Hardoi, were tried by the learned Sessions Judge of Hardoi for the murder of Lallu Singh and also for having caused grievous hurt to his brother Raghunath Singh. He acquitted them of the charge of murder, but convicted them under Section 325 read with Section 84, Penal Code for having accused grievous hurt to Lallu Singh as also Eaghunath Singh. He sentenced liar Sahai and Ramesh to undergo five years' rigorous imprisonment and Babu Lai to two years' rigorous imprisonment, under each count, The sentences of all the accused were Ordered to run concurrently. They have come up in appeal.
2. The prosecution case as sought to be established at the trial was as follows: Babu Lai is a village patwari. So are his two sons, Har Sahai and Rameah. They all live in Janigaon. At a distance of 30 Cr 35 paces from their house stands the house of Lallu Singh and Baghunath Singh. Lallu Singh has a daughter Ram Kali. Three Cr four days before 26th September 1947, Mt. Ram Eali whs returning home from the village temple. While she was near her father's house, a dog belonging to the accused rushed at her. It caught hold of her dhoti which was torn, but before it could bite, one Sukhraj Singh shouted and prevented the dog from doing so. Ram Kali reported the matter to her father. He complained to Ramesh about his dog. This led to an exchange of hot words between them and was followed by abuae on either side. The next day Ramesh went to Sendila, where his father was employed, and about four gharia before close of day, on 26th September 1947, he returned to Janigaon with his father Babu Lai and his-brother Har Sahai. One Ganesh Pasi also accompanied them. After they had alighted from the cArticle Lallu Singh was seen coming out of his . Thereupon Har Sahai abused him and referring to the exchange of abuse that had taken place between Lallu Singh and Ramesh the other day, challenged the latter to have it out with him. This led to an altercation between them, whereupon Babu Lai, Ramesh, Har Sahai and Ganesh all rushed at Lallu Singh with lathis and began to strike him. He raised an alarm which brought his brother Baghunath to his help. Baghunath Singh attempted to intervene. He was also beaten. The noise that was caused attracted a number of villagers to the place of occurrence whereupon all the four assailants of Lallu Singh and Baghunath Singh ran away.
3. As a result of the injuries inflict ed upon-him, Lallu Singh fell down and became unconscious. He was taken in a bullock-cart to police station Atrauli, five miles away, but he expired on the way near village Almapur. A first information report of the occurrence made by Baghunath Singh was recorded at 8 a. m.
4. Investigation was taken in hand. The dead body was sent for postmortem examination and the witnesses of the occurrence examined on 27th and 28th September 1947. The accused had absconded and so could not be arrested. Three of them, Babu Lai, Har Sahai and Ramesh, surrendered before a Magistrate on 10th October. Ganesh could not be traced so the-three accused who had surrendered were sent up for trial.
5. Babu Lai and Ramesh denied that they had anything to do with the occurrence. Har Sahai's defence was that on the day of occurrence he found Lallu Singh's cattle damaging his crop and was accordingly taking them to the cattle pound. As he chanced to pass Lallu Singh's house the latter and Raghunath stopped the cattle and would not allow them to be taken to the pound. Whereupon he (Har Sahai) raised an alarm. This brought Ganesh to the spot. Lallu Singh and Bagbunath Singh attempted to use their lathis whereupon Ganesh struck Lallu Singh with a lathi. Lallu Singh fell down upon the ground. Raghunath Singh used his lathi against Har Sahai and the latter also wielded his lathi in self-defence. According to Har Sahai he bad also received injuries and had got them medically examined by Dr. Pathak in Hardoi. He made a report against Raghunath Singh and Lallu Singh at police station Atrauli on 26th September 1947. This was recorded at 7 P. M. It was a report under Section 323, Penal Code and Section 24, Cattle Trespass Act.
6. Besides Raghunath Singh and Ram Kali, Kanthoo, Kanhai, Umrai, Subedar and Sadho Singh who had also witnessed the assault upon Lallu Singh and Raghunath were examined as witnesses for the prosecution. They all supported the prosecution case as stated above. No evidence was flailed on behalf of the accused. The learned Sessions Judge believed the prosecution story. He was of opinion that though Raghunath Singh's statement made in the first information report that immediately after the exchange of abuse between Lallu Singh and Ramesh on the day when the latter's dog rushed at Lallu Singh's daughter and damaged her dhoti, Ramesh went to Sandila to call his father and brother and that immediately after they had returned from Sandila on 26th September 1947, they as well as Ganesh Pasi rushed at Lallu Singh and began to strike him was not strictly accurate. On the evidence before him, he was satisfied, however, that after Babu Lai and his sons came to Jani-gaon with Ganesh Pasi on 26th September, there was an altercation between Har Sahai and Lallu Singh about the incident of the dog and the consequent exchange of abuse between Lallu Singh and Ramesh. Then they all attacked Lallu Singh and inflicted injuries upon him as well as upon his brother Raghunath Singh who attempted to intervene. This resulted in Lallu Singh's death and in causing grievous hurt to Ragbunath Singh. He was further of opinion that there was no intention to kill Lallu Singh and that it was a case under Section 326 and not under Section 302, Penal Code. He accordingly convicted the appellants under that section as already stated. The conclusions arrived at by the learned Sessions Judge were challenged before me in appeal.
7. There is no evidence in support of the defence version contained in Babu Lai's statement, and the appellants' learned Counsel naturally could not ask me to accept it. In the circumstances the fate of the appeal must, there. fore, depend on whether the prosecution evidence should Cr should not be believed. As found by the learned Sessions Judge, it is proved beyond doubt that the appellants' dog rushed at Mt. Ram Kali one evening three Cr four days before |he occurrence which formed the subject of the trial and damaged her clothes, It is also proved that there was an exchange of hot words followed by abuse between Ramesh and Lallu Singh in connection with that incident. Raghunath Singh, Ram Kali, Kanthoo, Kanhai, Umrai and Sadho, who all belonged to Janigaon have unanimously supported the prosecution version that shortly after the arrival of Babu Lai, Har Sahai. Ramesh and Ganesh Pasi, Lallu Singh was challenged by Har Sahai and then there was an assault upon him by the three appellants and also Ganesh Pasi. The learned Counsel for the appellants stressed certain minor discrepancies in the statements of the witnesses, but as pointed out by the learned Sessions Judge, they are not material and sitting in appeal I am not prepared to take a view of the credibility of these witnesses different from that taken by the learned Sessions Judge who recorded their statement. It was pointed out that though a number of persons unconnected with the family of Lallu Singh and Raghunath Singh were named in the first information report as eye-witnesses of the occurrence, they were not examined and the prosecution confined itself mostly to relations of the deceased and persons who were in some way Cr other connected with him. Raghunath Singh was his brother, Ram Kali his daughter, Kanthoo and Kandai were said to be in the service of Lallu Singh and Raghunath Singh; Subedar is the brother-in-law of Raghunath Singh and Sadho Singh was Lallu Singh's Khandani. Raghunath Singh was one of the injured persons. Mt. Ram Kali is and Lallu Singh's daughter. She was at the time of the occurrence living with her father, Lallu Bingh who (?) was assaulted and fell down unoonscious about ten paces from his doCr. It is thus clear that they are the two moat natural witnesses. Kanhai's house stands at a distance of 18 paces from that of Lallu Singh. Kanthoo, grandson of Kanhai, lived with him. Umrai's house stands at a distance of 30 paces from Lallu Singh's house and Sadho Singh's house is just at the back of Lallu Singh's house. Only Subedar is a witness who belonged to another village Kansua. He said that on the day of occurrence he had gone to purchase cloth from Sheo Dularey of Janigaon. He may be called a chance witness. Except for him all the other eye-witnesses are natural witnesses whom we would expect to have seen the assault. The fact that one of them is a khandani of Lallu Singh and the Pasis occasionally worked for him can be no reason for doubting their testimony. They stood their cross-examination well and I see no reason for not accepting their evidence. I agree with the view taken by the learned Sessions Judge that the prosecution story is substantially true.
8. A point of law was raised by Mr. Dass on behalf of the appellants. He contended that as it was not clear who was responsible for causing .grievous hurt to Raghunath Singh, so far as the assault upon him was concerned, none of the appellants could be convicted under Section 325, Penal Code. They could, if at all, be convicted 'Under Section 323 of the Code. With regard to Lallu Singh the learned Counsel contended that it was dear from the evidence of Mt. Ram Kali that the injury on his head was caused by Har Sahai. Accordingly the other appellants could not be convicted under Section 325, Penal Code. Reliance in support of these contentions was placed by -the learned Counsel on the decision of a Bench -of the Allahabad High Court in Dipa v. Emperor 1947 A L.J 208 : A IK. (Si) 1947 ALL. 408:48 Cr.L. J. 858 where it was held that though it may be presumed from the conduct of several persona striking another with lathis that each of them 'intended to cause grievous hurt, such presumption alone is not sufficient to establish the offence of causing grievous hurt against an accused unless it be further shown that the accused Actually caused grievous hurt. The learned Judges further held that where there was no evidence to indicate as to which of the accused person actually caused grievous hurt, none of them could be convicted of an offence under Section 326, Penal Code. The question whether a number of persons who joined in the commission of an offence had a common intention is a question of fact and not one of law. It is true that as laid down by the Judicial Com-mil toe in Mahbub Skah v. King-Emperor 72 I. A. 148 : A.I.R (32) 1945 P. C. 118: 46 OC. L. J. 689, there is a distinction between 'same' and 'similar' intention and common intention, yet the difference does not relate to a point of law. On the evidence before me, I am satisfied that -all the appellants had the common intention of .giving Lallu Singh a sound beating regardless of whether it resulted in causing only simple injuries or grievous hurt. Under the circumstances I am clear that the appellants were rightly con. Victed under Section 325, Penal Code.
9. I accordingly dismiss the appeal. The appellants who are on bail shall surrender thereto - and serve out their sentence.