1. Sheoharakh Kurmi. resident of Kebra, aged 25, and Gharib Kurmi, resident of the same village, aged 40, were placed on their trial before the Sessions Court of Basti on a charge framed under Section 304 of the Indian Penal Code. The learned Sessions Judge before trial charged the accused under Section 302 of the Indian Penal Code and called upon the accused to plead to the amended charge. The accused pleaded not guilty to the charge. The learned Sessions Judge has gone very carefully into the evidence before him and has delivered what may be called a very well-balanced judgment. The evidence before the learned Judge was so far believed both by him and the Assessors that they came unhesitatingly to the conclusion that the accused, who are now appealing, were partakers in the assault upon Ram Baran. The Assessors give it as their opinion that they were sure that the accused took part in the affray and beat Ram Baran, the accused did not intend to kill Ram Baran, and, therefore, they did not commit murder. The learned Judge in summing up the case in his judgment writes as follows:
'I am prepared to find, upon the evidence as adduced before me in the present trial, without the least hesitation or doubt that the accused and those who have been convicted in the previous trial attacked Ram Baran; that they were already suffering from keen disappointment on his previous conduct; that his very sight at the time of the occurrence in question made them furious beyond limit; that the aggressors had also some determined to rescue their cattle in spite of all opposition and at any cost; and that prone to commit acts of violence in the above mental state, they brutally beat the deceased who was at the time without means of defence and totally helpless, the whole affair being altogether one sided in aggressiveness as well as cruelty.' In order to understand the above remarks it is necessary to remember that two other persons, who according to the evidence joined in this assault upon Ram Baran, were tried by a Judge who preceded the present Judge as Sessions Judge of Basti. They had been committed to his Court charged with an offence under Section 304 of the Indian Penal Code. They were found guilty of the offence with which they were charged and sentenced to rigorous imprisonment for seven years each. They appealed to this Court and this Court dismissed the appeal. The accused in this case have been defended by a very learned Counsel of this, Court, who took as his line of argument that either the evidence now on record was the same as that which had been recorded in the previous case and the conviction upheld was conviction for an offence under Section 304 of the Indian Penal Code, or that the evidence had been so altered as to make the case now put before the Court amount to a case of wilful murder. We are not referred to any difference in the evidence then given and the evidence now given. The evidence shows, so far as the present accused are concerned, that the two accede either themselves, or with others join them, committed an assault upon a man who was defence-less and unarmed. The nature of the assault can at once be seen from the medical evidence. The officer who conducted the post mortem found four marks on the body of the deceased and on removing the skullcap a firm and thick piece of dotted blood was found pressing on the brain from the left temporal region to the left side of the brain above durameter. The brain was found quite pressed on the side where it was struck and the fracture continued to the petrous portion of the left temporal bond and on the middle part of the base of the brain. He gave it as his opinion that the deceased died from compression of brain as the result of the fracture of the skull, which was probably caused by some blunt weapon, probably a lathi. The parson or persons who committed this act must have known that it was so eminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. It was open, to the accused (now appellants) to show that this act of theirs was not murder but came under one of the provisos to Section 300 of the Indian Penal Code. They made no attempt to do this. On the contrary, they said that they were not guilty of murder and that they were not present when the murder was committed. This being so, the learned Sessions Judge was very right in finding the appellants guilty of wilful murder, and it is well that there should be Sessions Judges who in the present day are able to take this right and proper view of the law. In many oases it has come within our experience that the tendency has been the other way and so far as the present case is concerned, we are unable to alter either the conviction or the sentence passed by the learned Sessions Judge.
2. But the case is undoubtedly open to this anomaly that out of four persons, who so far as we can gather from the evidence committed or took part in the same act, two have been sentenced, as in the present case, to transportation for life and two have been sentenced to rigorous imprisonment for seven years each. The case might well be brought before the Local Government who, if they consider it proper, can take action and remove the inequalities in sentence which have taken place.
3. The appeals are dismissed. The case will be entered in the record of the Sessions Judge as having been very properly and carefully decided.