1. Two brothers, Har Sarup and Harbans Lal, Kayasthas by caste, the former aged about 29 years and the latter his senior by 26 years, have been tried and convioted by the Sessions Court of Bijnor on a charge under Section 302 of the Indian Penal Code, alleging against them the wilful murder of their caste-fellow and neighbour Sham Lal. The record is before us for confirmation of the sentence of death passed by the Sessions Court. Both accused have submitted petitions of appeal, and the case has been argued by counsel on their behalf. The petitions of appeal follow the lines of the defence set up in the Sessions Court, though the accused were certainly most unwise to have reserved that defence for the Court of Sessions and not to have preferred it in full detail when they had an opportunity of doing so before the committing Magistrate. Up to a certain point the facts are scarcely in dispute. The two appellants lived in a house adjoining that of Sham Lal; in fact it would seem that the two had at sometimes formed parts of one and the same house. Sham Lai had a brother Piare Lal, who, more or less, lived with him, though for reasons which we need not go into, he was not in the habit of sleeping at the house. Piare Lal was unmarried, and Sham Lai does not, so far as the evidence goes, appear to have ever had a lawfully married wife. He did, however, keep a concubine who bore him a daughter of the name of Bhaggu. This little girl, aged about 13, is unquestionably the main cause of the tragedy which bad occurred. We think there can be no doubt on the evidence that Har Sarup wanted this girl for himself, though, whether he seriously believed that he could contract a lawful marriage with her, which would be recognized by his brotherhood, or merely desired to keep her as his concubine, it is impossible to say. There was very bad blood between the parties, probably in consequence of the offers which the accused were making for the person of this girl. According to the evidence, each of the parties had resorted to the irritating system of patty annoyancea involved in throwing bricks from one house into the other, or the shouting of filthy abuse from outside. The death of Sham Lal occurred somewhere about 9 p.m. on the 28th of September last. On the afternoon of the previous day the appellant, Harbans Lal had made an elaborate report at the police station, in which he complained that Sham Lai and his brother Piare Lal were annoying and abusing him: that they were bringing pressure to bear upon him to vacate the house in which he was living; and that he was in fear of his life at their hands. Soon after 9 p.m. on September 28, Piare Lal was at the police station, reporting the murder of his brother Sham Lai by the two appellants. Sub-Inspector Ram Ratan Lal proceeded at once to the spot. He found the two appellants inside their house, behind locked doors, which they refused to open at his summons. Their own clothes were stained with blood as also was the clothing of their old mother. In a corner of the entrance-room leaning against the wall, were an axe and a spear, both of them stained with blood. Sham Lal had been carried into his own house. He was quite dead. The medical evidence shows that he had received a thrust with some such weapon as the spear recovered from the possession of the appellants, on the right side of his chest, which had penetrated into the lung. There wore also two incised wounds, not of a very serious character; on the head and a contused wound on the shoulder. A youth of the name of Bhukan, who is a witness for the prosecution in the case was found to have an incised wound on the left arm and a trifling cut on his right little finger. On the other hand, both the appellants showed marks of injury on their persons, though by no means serious ones: Har Sarup had received a slight out on one of his fingers, the palm of his right hand was bruised, and he had a curious mark in the neighbourhood of the left shoulder which the medical officer thinks might very possibly represent a tooth-bite. Harbans Lal had a bruise on the back of the neck such as might well have been inflicted by the blow of a lathi. When the case came into Court, the prosecution called Piare Lal himself and the little girl Bhaggu; also this youth Bhukan, whom we have spoken of as showing the mark of a slight wound. They also called Bhagwan Ghander alias Pisu, the own brother of the said Bhukan, another Brahman of the name of Chajju Mat and a Muhammadan shop keeper named Naair-ud-din. The last-named was disabled by illness at the time of the Sessions trial and the learned Sessions Judge has very properly brought on to the record the statement which this man had made to the Magistrate., One of the most remarkable features of the case has been entirely ignored by the learned Sessions Judge. Piare Lal's report at the police station is quite an elaborate document. It is the work of an intelligent man, well-accustomed to describing events in narrative form. It tails in detail the story of Sham Lal's murder and of the circumstances alleged to have led up to the same. It asserts the presence of the deponent himself and of Bhukan on the scene of the crime, and may be said to imply, or at any rate to account for, the presence of the girl Bhaggu. The noticeable point, however, is that the report goes on to give the names of four persons as being those who first arrived on the scene when an outcry was raised. Two of these parsons have not been produced in evidence at all; the names of the other two are Baldeo Kiahan and Ganga Sahai. The Sub-Inspector of Police says that the recorded statements made by these two parsons in the course of the night following the commission of the crime. They themselves deny this; but Baldeo Kishan admits making a statement to the police at 11 a. m. on the 29th of September, and Ganga Sahai practically admits having done the same, either on the 29th or on the 30th of September. The Sub-Inspector contents himself with remarking that ha did not Send up these two men as prosecution witnesses, because he had heard that they would not be willing to give evidence. They actually appeared at the Sessions trial as witnesses for the defence; so they were willing enough to give evidence. What the Sub-Inspector means is that they were not prepared to bear out the story put forward by Piare Lal and the witnesses who supported him. What we have to do is to consider and to appraise the evidence of Piare Lal, Bhaggu, Bhukan and the two apparently extraneous witnesses whom the police did succeed in producing as against the evidence of Baldeo Kishan and Ganga Sahai, who, on Piare Lal's own admission, were amongst the very first parsons to arrive on the scene of the disturbance. It will now be expedient to indicate in brief outline the nature of the prosecution story, and what the accused and their witnesses say in reply. Piare Lal says that he and this family were being subjected to a sort of persecution in the matter of this little girl Bhaggu; stones were being thrown into their house and threatening letters left at their door. On the night in question both he himself and Sham Lal had been invited to a feast at a neighbour's, though, as a matter of fact, they went there independently and at different times. He himself was making his way towards the house to which he had been invited when he heard a disturbance from the neighbourhood of his own house. He happened at the time to be close to the shop kept by Bhukan and his brother Pisu. He hurried in the direction of his if souse, being followed, first by Bhukan, and after some interval by the latter's brother. He reached the open space in front of the two houses of the parties. On to this, there open the doors of a room, described as the tidari belonging to Sham Lal's house, and also a single door leading into a narrow entrance-room, described as the dahliz of the house of the appellants. Piare Lal's story is that as he arrived on the scene the two appellants were attacking Sham Lal, one of them with a spear and another with an axe. He flung himself into the fray, avoided a blow aimed at him by Harbans Lal, and grappling with the latter, flung him to the ground. In the meantime two women, the mother and the sister of Harbans Lal, emerged from their house and began dragging Shamlal into the dahliz. The man was already wounded and fell down as the women began dragging him. Bhukan interfered and succeeded in grasping Sham Lal's feet at the moment when about half the man's body 'had been dragged over the threshold of the dahliz, Then Bhukan himself was wounded with a spaarthrust from Har Sarup, while Harbans Lal broke loose from the witness and struck Sham Lal another axe-blow. Then the accused and their womenfolk took refuge inside their house, and Piare Lal and the witnesses with him were able to carry Sham Lal's corpse - the man having by that time expired - first into the open space outside and afterwards into his own house. This is the story told in substance also by the girl Bhaggu and by the prosecution witnesses Bhagwan Chander and Nasir-ud-din. The witness Chajju Mal deposes only to the search of the accused's house and the recovery of blood stained clothing and weapons from them. It would be quite possible to criticize this evidence in matters of detail, but there are certain general considerations against its credibility. Bhagwan Chander and Nazir-ud-din, as we have already noticed, were not mentioned in the first report, and in the case of Nasir-ud-din we are deprived of the advantage of considering any cross-examination to which he might have been subjected at the Sessions trial. Their evidence reads to us some-what artificial, and we find it practically impossible to avoid believing that they came on the scene too late to see much of what they have described. Moreover, their evidence, as well as the entire story told by Piare Lal, pre-supposes a struggle of such duration that it is difficult to believe that at the end of it Sham Lai would have shown only the four marks of injury on his person observed at the post mortem. The other difficulty about this evidence lies in the fact that the Sub Inspector found two very definite pools of blood: one in the open space outside the two houses' and the other inside the dahliz of the accused's house. He was not examined as carefully as he ought to have been with reference to this very important statement. He did, however, produce a sic prove a certain plan of the locality, and we are entitled, on the strength of his evidence, to take notice of marks placed upon the said plan and explanatory notes made concerning those marks. Now, the pool of blood inside the dahliz was not in the doorway; it was not far from the doorway, but it is shown in the plan distinctly to one side of the same. This is significant when we come to consider the defence of the accused and the statements of their witnesses. We have already remarked that the accused elected to reserve their defence. Even in their statements before the Sessions Court we find the sort of hesitation and confusion which is to be expected in the statements of persons on their trial on a capital charge, who are not really prepared to make a clean breast of the facts as known to them, but who are anxiously thinking how they can best tell an apparently coherent story which will not involve any direct admission against themselves, Anyone reading Har Sarup's statement as it stands on the record, can-not fail to realize that the man knows perfectly well that he stabbed Sham Lal in the chest with a spear and thereby caused his death. He will not actually say this; but in reply to the questions put to him ha returns answers which practically amount to the same thing. He tells a queer story as to the grounds of enmity between himself and his next-door neighbours, and he says that on the night in question it was the said neighbours who were abusing him and his brother, throwing bricks into their house, and challenging them to come out and fight. The accused were safe indoors with the door shut, and we know that they had inside the house the weapons which the police afterwards found there. Har Sarup however, wishes the Court to believe that he and his brother grew so alarmed at the thought that Piare Lal and Sham Lal and their friend Bhukan might climb over into their house that they began to shout for help. On this, he says, his witnesses, Baldeo Kishan and Ganga Sahai, came on the scene, and on the arrival of the witnesses he and his brother opened the house-door and came out. As soon as they had done so, they were set upon by Piare Lal, Sham Lai and Bhukan with lathis. While a scuffle was going on outside between Piare Lal and Harbans Lal, in which the two witnesses were vainly attempting to interpose, Har Sarup himself ran into the house, being pursued by Sham Lai and Bhukan. Inside his own dahliz he turned to bay, and, as he puts it, I struck one spear-blow to save myself. I do not know whether it hit Sham Lai or not.' In substance this story is also told by Harbans Lal, and in the main it is corroborated by Baldeo Kishan and Ganga Sahai. The learned Sessions Judge has been very severe on Baldeo Kishan by reason of certain admissions which this witness made in respect of a statement not otherwise proved, which he was said to have made to a vakil of the name of Brij Nandan Saran, who came on the scene in the course of the fight between the 28th and the 29th of September. It seems to us that this statement ought either to have been put frankly in evidence, or that all reference to it ought to have been omitted. As the record stands, we have an admission by Baldeo Kishan that he did make a statement to the vakil, and one or two fragmentary questions are put as to whether he had not said to the vakil this one thing; or that other thing. It is quite easy to create a totally misleading impression as to the veracity of a witness by cross-examining him on these lines. Another point severely commented on by the learned Sessions Judge is that neither of these two witnesses hastened to give the investigating police officer the benefife of their evidence the moment he arrived on the scene. If this sort of criterion is to be applied to evidence in this country,, there will be very few eye-witnesses to important crimes who will be founds entitled to credit, whether they eventually appear as witnesses for the prosecution or as witnesses for the defence On the whole, we are inclined to agree with the learned Sessions Judge that Baldeo Kishan and Ganga Sahai display in their evidence a certain leaning towards-the accused persons and a desire to represent their actions in as favourable a light as possible. At the same time it does not seem to us easy to give any definite' reasons why they should be regarded as less worthy of credit than the prosecution witnesses, and their story, as a whole has the advantage of accounting for the pool of blood found just inside the dahliz. There is one more curious, and indeed sensational feature of this case. Piare Lal had asserted in his first report that he and his brother had been subjected to persecution by means of threatening' letters. He handed over to the police-three letters which he said had been given him by the little girl Bhaggu; and Bhaggu's account of the matter is that she found these letters lying in the doorway of their house on the morning after the murder. These letters have been most carefully translated on our record, and they have apparently been treated in the Court below as corroboration of the case against the accused. Their only effect on our minds is to introduce a serious element of uncertainty into the whole matter. They are curiously worded letters, ostensibly addressed in very polite terms to the 'dear sister' of the writer. The suggestion is that they are meant for the aged mother of Piare Lal and Sham Lal. They do contain demands for the hand of the girl Bhaggu, and they are accompanied by threats against the life of the person addressed and the lives of everybody connected with her. In two of these letters the writers are very careful to assert that they are going about prepared for murder, armed with a spear and a hatchet, the ver wea pons with which Sham Lal was eventually killed. The absurdity of supposing that letters threatening the life of a member of the household would continue to be written and delivered after the murder was an accomplished fact does not seem to have presented itself to the mind of the learned Sessions Judge. Some other explanation of the production of these Setters before the investigating police officer must be sought. We could suggest more than one but it is useless to indulge, in mere speculations. When, however, the police came to examine the clothing of the murdered man, they found on Sham Lal's person, saturated with blood, what they thought to be two letters which have been assumed to belong to the same series. The letters were marked Exhibits G and H. They were certainly never translated for the benefit of the Court, and, so far as we can discover, no attempt was ever made to read them until we insisted on having them opened out at the hearing of the appeal. We at once discovered that there were in reality three letters, and not two: two of them were gummed together by the driad blood. It was exceedingly difficult to decipher these papers now, but we managed to obtain a fair general idea of the contents of one of them. It is a letter similar in style to the three Exhibits D, E and F and it does contain an explicit threat against the life of Piare Lal. Needless to say, it contains no reference to an axe or a spear. We are bound to add also that, although both the appellants are literate and occupy positions which must have made it the easiest thing in the world to secure specimens of their handwriting, no attempt was made to produce evidence regarding the hand-writing of Exhibits D, E and P much less of Exhibits 6 and H, which, as we have said were not read at all in the Court below. On the whole, we prefer to draw no certain inference from these letters, except that we are inclined to believe the statement made by Piare Lal in his first report as well as in his evidence that letters of a threatening character connected with demands for the hand of the girl Bhaggu had been received during the days immediately preceding the murder.
2. Coming now to sum up the entire case the conclusion at which we arrive is that the prosecution evidence, more particularly where it puts forward allegations which if believed, would make the crime of both the appellants unquestionably nothing short of murder is not to be implicitly relied on. We regard it as in itself open to criticism, and it is to a considerable extent outweighed by the defence evidence and by the Sub-Inspector's plan of the locality. We are satisfied that a savage enmity had been growing up for some time between the two appellants and the two brothers Sham Lai and Piare Lal who were their next-door neighbours. We believe that acts of aggression had been committed on both sides on the evening in question. We are not prepared on the evidence to believe that anything more than this is proved, namely, that after challenges to come out and fight had passed from one house to the other, there was an encounter in the open space in front of the two houses in the course of which injuries were inflicted and suffered on both sides. At some staga of this encounter Har Sarup ran into the dahliz of his own house and was followed there by Sham Lai and Bhukan. A sharp struggle then occurred just inside the entrance door of the dahliz and in the course of that struggle Har Sarup, with his spear injured Bhukan and inflicted upon Sham Lai the fatal wound of which the unfortunate man expired almost immediately. This being our conclusion on the case, we think that the conviction under Section 302, I.P.C., ought not to be affirmed. The case is somewhere on the borderland of the second and fourth exceptions to Section 300 of the Indian Penal Code. We should unhesitatingly apply Exception 4, if it were not that we believe on the evidence that Har Sarup was using a spear against a man who was only armed with a lathi. On the other hand, we must give him the benefit of our belief that he was within the threshold of his own house when he inflicted the fatal injury and though we are by no means prepared to hold that his act is completely covered by the provisions of the law relating to the right of private defence, we think that Exception 2 above referred to sufficiently covers the case to warrant our altering the conviction to one under Section 304, I.P.C., As regards Harbans Lal, we are not prepared to separate his case from that of his brother, except in the matter of sentence. The injuries found on the head of the deceased, although the medical expert was not asked for a definite opinion on the point, are pretty obviously such as would have resulted from blows of an axe or hatchet, and with this corroboration we are prepared to accept the prosecution evidence which proves that Harbans struck at least one, if not two, such blows. Accordingly, we set aside the conviction and the sentence recorded by the Sessions Court. In lieu thereof we convict Har Sarup and Harbans Lal of the offence of culpable homicide not amounting to murder under Section 304, Indian Penal Code. We sentence Har Sarup to undergo rigorous imprisonment for ten years and Harbans Lal for six years.