1. Irshad Ullah Khan, Mohammad Rashid Ullah Khan, Tufail Ahmad Khan, Nisar Khan, Fida and Kaley were tried in the Court below under Sections 302, 148 read with Section 149 and Section 307, Indian Penal Code. Fida and Kaley have been acquitted. The charge of rioting under Section 148, Indian Penal Code, failed. Irshad Ullah Khan has been found guilty under Section 302, Indian Penal Code, and has been sentenced to death. 'Rashid Ullah Khan, Tufail Ahmad and Nisar Khan have been held guilty under Section 302, read with Section 34 of the Indian Penal Code and have been sentenced to transportation for life. All these four accused have also been convicted under Section 307 of the Indian Penal Code, and have been sentenced to 7 years' rigorous imprisonment. They have all preferred appeals against their convictions, and the record of the case has been sent up by the learned Sessions Judge for confirmation of the death sentence passed against Irshad Ullah Khan.
2. Irshad Ullah Khan and Rashid Ullah Khan are brothers. A cousin of theirs is married to Tufail Ahmad Khan. Nisar Khan is said to be a grand-nephew of Tufail Ahmad Khan accused'. Ahmad Ullah Khan was the father of Irshad Ullah Khan and Rashid Ullah Khan. He is dead. Mt. Nazir Begam is the step-mother. About 10 bighas of land in village Bagrasi is held by Mt. Nazir Begum, as mortgagee in possession since 1915. This land was in cultivatory possession of Ram Sarup and his brother Heta as occupancy tenants. It is said that the land remained parti for about 2 years. Mt. Nazir Begum leased it to Abdul Majid Khan and his nephew Asad Ullah Khan under a lease executed on 10th May 1932. On the same day Heta and Ram Sarup relinquished this land in the presence of a Kanungo. The evidence produced in the case ishows that Irshad Ullah Khan, accused, obtained an exparte decree in respect of this land against his stepmother. On the date on which the Jease was executed in favour of Abdul Majid Khan and Asad Ullah Khan, an application was made to the Court of the Munsif for setting aside the above mentioned ex parte decree. It appears from the evidence on the record and from the statement of Mt. Nazir Begum that her relations with Irshad Ullah Khan and his brother Rashid Ullah Khan had been very strained. After the death of her husband these two step-sons used to look after this leased land, but Mt. Nazir Begum did not get any profits and so she leased the land to Abdul Majid Khan and Asad Ullah Khan for a number of years.
3. The prosecution story is that Abdul Majid Khan had made arrangements to have one of the leased plots irrigated on the 1st June 1932. This plot is at a distance of only 80 or 90 yards from his residential house. Some labourers had assembled at the well near the field and irrigation work had started on the morning of 1st June 1932. The evidence is that Abdul Majid Khan, Muhammad Said Khan, P.W. 2, and Said Khan were sitting on a chabutra in front of the house of Abdul Majid Khan. They saw all the accused proceeding in the direction of the field which was being irrigated. Irshad Ullah Khan carried a double barrel breach loading shot gun and Rashid Ullah Khan had a spear, while the remaining accused were armed with lathis. A servant of Abdul Majid Khan told him that the party of the accused was going towards the well.
4. Upon this Abdul Majid Khan, Said Khan deceased and Said Khan, P.W. 2, followed them. Abdul Majid Khan called the accused and asked them to stop and requested them not to go to the well. It may be remarked here that Abdul Majid Khan was unarmed. All the six accused turned back and Tufail Ahmad Khan asked his companions to beat Abdul Majid Khan and his companions. Upon this Irshad Ullah Khan fired his gun at Abdul Majid Khan. Abdul Majid Khan fell down upon the ground wounded. Then Said Khan deceased rushed towards Irshad Ullah Khan and gave him a lathi blow on the head. Irshad Ullah Khan again fired and Said Khan was hit. He fell down upon the ground and died. Muhammad Said Khan, P. W. 2, says that the other five accused beat him with lathis. He had a lathi and he also hit back. In the meantime Umar Khan and Rav Nawaz Khan came to help Abdul Majid Khan's party. Irshad Ullah Khan rushed towards Rav Nawaz Khan and fired at him. Rav Nawaz Khan fell down wounded. Umar Khanis the father of Said Khan, P.W. 2. He asked the accused persons to cease fighting. But this had no effect and Umar Khan was also beaten by aE the accused except Irshad Ullah Khan. Irshad Ullah Khan also fired at Said Khan, witness, and he was also wounded. One Sarjit, a labourer who had been working at the well came and caught Irshad Ullah Khan from behind. He was pushed back. Irshad Ullah Khan fired at him and he was also wounded. Jawa, another labourer, who happened to be near Sarjit, also received gunshot injuries. After this the fight ceased and eventually all the wounded men were taken to Bulanshahr. Abdul Majid Khan died in the hospital on 6th June 1932.
5. One of the arms of Sarjit had to be amputated. Rav Nawaz Khan was undergoing treatment in the hospital in Bulandshahr at the time of the trial. The defence story was that Irahad Ullah Khan appellant had gone out that day early in the morning to shoot green pigeons. While he was returning, he saw Abdul Majid Khan with a party of 30 or 40 men going towards one of the leased plots. Abdul Majid Khan abused Irshad Ullah Khan saying that he was the helper of Ram Sarup, the man who had relinquished the leased land. It is said that after this Irshad Ullah Khan was attacked by the party of Abdul Majid Khan with lathis. While he was being beaten, Rashid Ullah Khan and Tufail Ahmad Khan came. They were also beaten. The defence is that Irshad Ullah Khan fired at Abdul Majid Khan and others in self-defence. The defence of Rashid Ullah Khan and Tufail Ahmad Khan is that when Irshad Ullah Khan was attacked, they rushed to the spot where he was being attacked and tried to save him. Nisar Khan pleaded that he was not-present at the time of the fight, and that he had been falsely implicated. The learned Sessions Judge has accepted the prosecution story. We have to consider whether his finding is correct. The first report Ex. P printed at p. 5, of the paper book was made at the police station by Puran Chaukidar at 8 a. m. The police station is at a distance of 5 miles from Bagrasi village. In the first report it is mentioned that the party of Irshad Ullah Khan had gone to prevent Abdul Majid Khan from irrigating the leased land and that was the cause of the fight. The name of Nisar Khan was not mentioned in the first report. All that the chaukidar said was that along with Irshad Ullah Khan, Rashid Ullah Khan, Tufail Ahmad Khan and Bhuray Mohammad Khan, there were two or three persons. The chaukidar himself was not present when the firing took place. In his evidence he stated that on hearing of the fight he went to the spot and there several persons who were present gave him the details which he mentioned in ihis first report.
6. The most important piece of evidence in this case is the dying declaration of Abdul Majid Khan recorded by a Magistrate in Bulandshahr hospital at 6. 45 p. m. on the 1st June 1932. in which he stated that he was at his house when he learnt that the party of Irshad Ullah Khan was proceeding. towards the well. He, Said Khan, deceased, and some others proceeded towards the well. Tufail Ahmad Khan addressed his companions and. told them that before going to the well, they should deal with Abdul Majid. Khan. On this Irshad Ullah Khan started firing. Mohammad Said Khan., P. W. 2, Jagwa, Sumera Bhagwat Pra-sad, Budha, Puran, P.W. 14, Sarjit and Ram Singh give the prosecution; version of the firing. Asad Ullah Khan,. P.W. 1, says that he was inside the house of Abdul Majid Khan when he-heard the firing going on. Then he went out and saw the six accused returning towards the home of Irshad Ullah Khan.
7. On behalf of the accused persons Pirbhu Lal, Ibrahim Khan, Jagan Lal., Ahmad Ullah, Mohd. Yasuf Khan, Mo-barak Ali Khan and Ram Sarup were examined. The story which the defence told was this: Ram Sarup had not. relinquished the land leased by Mt. Na-zir Begum to Abdul Majid Khan. Abdul Majid Khan induced Ram Sarup. to giye up the leased land to him on payment of Rs. 100. Ram Sarup was. paid Rs. 25, and Abdul Majid Khan, agreed to pay him the balance later on. After some days, Ram Sarup went to Abdul Majid' Khan and asked him to pay the balance. Abdul Majid Khan would not do so. Thereupon Ram Sarup said that he would cultivate the land which had been let to Abdul Majid Khan. It is said that Ram Sarup went and complained to Irshad Ullah Khan who advised him to make application about the matter to the Deputy Collector. Abdul Majid Khan wrongly thought that Irshad Ullah Khan was, backing Ram Sarup. On the morning of 1st June Ram Sarup was irrigating the disputed plot. Abdul Majid Khan had gathered a large number of men in his compound. This party was proceeding towards the well. The suggestion of the defence is that they were going there to prevent Ram Sarup from irrigating one of the leased plots. Irshad Ullah Khan happened to be returning from the jungle. Abdul Majid Khan on seeing him abused him and said that he (Irshad Ullah Khan) was creating trouble. Then Said Khan, witness hit Irshad Ullah Khan on the head with his lathi. Irshad Ullah Khan wanted to run away, but a large number of persons attacked him with their lathis. Said Khan caught the gun of Irshad Ullah Khan which went off incidentally and shot Said Khan. Then Rashid Ullah Khan and Tufail Ahmad Khan came. Abdul Majid Khan ordered his men to beat the party of Irshad Ullah Khan. Rashid Ullah Khan and Tufail Ahmad Khan were beaten and upon this Irshad Ullah Khan fired hitting Abdul Majid Khan.
8. We have given our anxious consideration to the evidence produced on both sides. We feel satisfied that the evidence of the prosecution witnesses is true and has been rightly believed by the learned Sessions Judge. We have the dying declaration of Abdul Majid Khan, which was recorded by a Magistrate on the evening of 1st June 1932. The man was seriously wounded and we cannot believe that he told a story which was not true. According to the evidence produced by the defence, Abdul Majid Khan was held in high esteem by every one of Bagrasi village, and he was obviously a man of high character. He was an old man of over 60. The evidence proves that he was unarmed. We cannot believe that he ordered his companions to beat Irshad Ullah Khan who was armed with a double barrel gun. We bear in mind that on the side of the defence no report was made giving their version of the fight. We do not believe Ram Sarup when he says that he was irrigating one of the leased plots on 1st June 1932. It is the case of both sides that Abdul Majid Khan had gathered some men in the morning of 1st June 1932, at his place. The prosecution case is that these men had already gone and had started irrigation work at the well. The defence is that Ram Sarup and some of his men were irrigating the disputed plot. The story of the defence appears to be improbable. If Abdul Majid Khan had gathered men for irrigation, then it is highly improbable that he could have allowed Ram Sarup to start the work. The well is only at a distance of 80 yards from his house. There could be no reason for him to keep his labourers whom he had collected at his own house. We are of opinion that Irshad Ullah Khan resented the action of Abdul Majid Khan in taking a lease of the land from his step-mother. That was the cause of the trouble. In our opinion, the prosecution evidence that Irshad Ullah Khan and his companions were going to stop Abdul Majid Khan from proceeding with the irrigation work is true. The story of Irshad Ullah Khan that Abdul Majid Khan wrongly suspected that he was backing Ram Sarup does not appear to be true. The evidence clearly proves that on 10th May 1932, both Ram Sarup and his brother Heta relinquished the land. The defence has invented the story that Ram Sarup had determined not to give up possession. The dying declaration of Abdul Majid Khan strongly supported the oral evidence of the eye-witnesses. We therefore believe the prosecution story and hold that it is proved that Irshad Ullah Khan was going to the well to stop the irrigation.
9. So far as Irshad Ullah Khan is concerned, we are of opinion that a clear case of murder has been established against him. We also think that the charge under Section 307 of the Indian Penal Code, is proved. Now we turn to the case of the remaining throe appellants. We believe that these men were with Irshad Ullah Khan. The evidence of Mohammad Said Khan, P.W. 2, proves that when Abdul Majid Khan followed the party of Irshad Ullah, he asked them to stop and not to go to the well. On this Tufail Ahmad Khan asked his companions to beat Abdul Majid Khan and the men who were with him. Then Irshad Ullah fired. We have also the dying declaration of Abdul Majid Khan on this point. He says that Tufail Ahmad Khan said that before going to the well they should deal with Abdul Majid's party. The words used in the dying declaration are 'inko bhi lelo.' The evidence further proves that Rashid Ullah Khan, Tufail Ahmad Khan and Nisar Khan used their lathis. Muhammad Umar Khan who had come with Rav Nawaz Khan to help Abdul Majid Khan was beaten and received lathi injuries.
10. On behalf of Nisar Khan alibi evidence was produced. We do not believe that Nisar Khan was at Delhi on the day of the fight. It will be noticed that in the statement which Nisar Khan made before the committing Magistrate, he did not say that he had gone to Delhi. He produced one private medical practitioner in his defence. He is Muhammad Habib Ullah. We do not believe the evidence of this witness. He says that he treated Nisar Khan from 28th May onward. His prescription was produced in evidence and it shows that the man was suffering from bronchitis. But the evidence shows that Nisar Khan had an, injury on his head when he was admitted to the jail several days after his arrest. The injury was noticed, but it is very strange that this doctor never treated him for that injury. It is true that Nisar Khan's name was not mentioned in the first report by the chaukidar, but we have to bear in mind that Abdul Majid Khan, a respectable man, mentioned the name of Nisar Khan in his dying declaration which was recorded on the day on which the shooting had taken place. We are satisfied that the defence of Nisar Khan is not true. We hold that all these three appellants (appellants Nos. 2 to 4) took part in the fight. The learned Counsel for the appellants has contended that Rashid Ullah Khan, Tufail Ahmad Khan and Nisar Khan have been wrongly convicted under Sections 302 and 307, read with Section 34 of the Indian Penal Code. His argument is that Section 34 of the Indian Penal Code has no application to this case.
11. Section 34 of the Indian Penal Code lays down that when the criminal act is done by several persons, in furtherance of the common intention of all, each of those persons is liable for the act in the same manner as if it were done by him alone. The apparent simplicity of the language of this section has been found to be delusive. There are few other sections of the Indian Penal Code in the interpretation of which there has been so deep a divergence of opinion in all the High Courts in India as in the case of Section 34 of the Indian Penal Code. In Emperor v. Nirmal Kanta Roy AIR 1914 Cal 901, Stephen, J., held that Section 34 of the Indian Penal Code applied only where a criminal act was done by several persons of whom the accused charged thereunder was one, and not where the act was done by some person other than the latter. In that case, two persons had fired at another. Only one hit the victim who was killed. The accused had not hit the deceased. Stephen, J., held that the accused could not be convicted under Section 302, read with Section 34, of the Indian Penal Code. This view is no Longer good law. A Full Bench of Calcutta High Court held in Emperor v. Barendra Kumar : AIR1924Cal257 , that if several persons armed with pistols go to a place with common intention of robbing a person, and, if necessary, to kill him, and if one of them fires a fatal shot in furtherance of their common intention, then all of them are guilty of murder under Section 302 read with Section 34 of the Indian Penal Code. In this case the ruling reported in Emperor v. Nirmal Kanta Roy AIR 1914 Cal 901, was considered and not approved. The case of Emperor v. Barendra Kumar : AIR1924Cal257 , went in appeal to the Privy Council. The judgment is reported in Barendra Kumar v. Emperor . Their Lordships held that Section 34 of the Indian Penal Code deals with the doings of separate acts, similar or diverse by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself. 'That act' and then again ' the act' in the latter part of the section include the whole of the action covered by 'a criminal act' in the first part of the section. In the case of Emperor v. Barendra Kumar : AIR1924Cal257 , Richardson, J., who was one of the five Judges made the following observations:
Prove the common intention of the persons present at the moment of the offence and all would be equally guilty of nothing less than that offence. If death were the result of the act or series of acts of one out of the several confederates, the act would be done by them within the meaning of Section 34. If death followed the different acts of different confederates at the same time and place, then again Section 34 would 'probably suffice. Every confederate would be regarded as having done every criminal act and would, therefore, be liable as if he had done them all alone.
12. In another case which is reported in Emperor v. Ranchhod Sursung AIR 1924 Bom 502, it was contended on behalf of the accused that Section 34 of the Indian Penal Code was not applicable to a case where a criminal act in furtherance of the common intention of several persons was the act of a single individual. A Bench of the two learned Judges of the Bombay High Court repelled this contention. They held that the fact that a criminal act done in the furtherance of the common intention of the several persons was the act of a single individual does not render the provisions of Section 34, inapplicable. Dealing with the view taken by Stephen, J., in the case of Emperor v. Nirmal Kanta Roy AIR 1914 Cal 901, and another Calcutta case, Emperor v. Profulla Kumar AIR 1923 Cal 453, the following observations were made:
The learned Judge seems to have overlooked Section 9, I.P.C, which in my opinion would have removed the difficulty felt by Stephen, J.S. 9 runs as follows: 'Unless the contrary appears in the context, words importing the singular number include the plural number, and the words importing the plural number include the singular number.' If we then turn to Section 34 and read it in the light of Section 9, we can interpret it as follows: 'When a criminal act is done by one person in furtherance of a common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
13. On consideration of the authorities on the point we agree with the view taken in the Full Bench case of the Calcuta High Court in Emperor v. Barendra Kumar : AIR1924Cal257 , and in Emperor v. Ranchhod Sursung AIR 1924 Bom 502. In our judgment the view that Section 34, applied only where a criminal act was done by several persons of whom the accused charged there under was one, and not where the act was done by person other than the latter is not a correct view. We are of opinion that Section 34, of the Indian Penal Code, would be applicable equally to those cases in which the criminal act done in furtherance of a common intention of several persons is the act of a single individual. Before Section 34 can be applied, the prosecution must prove that the criminal act was done by one of the accused persons in the furtherance of the common intention of all. The existence of a common intention is the sole test of the joint responsibility under Section 34 of the Indian Penal Code. There are very few cases in which there is direct evidence of common intention. This must be gathered from the facts of each case and the surrounding circumstances. In this case we have no difficulty in determining the common intention of the accused persons. We find that it is established that Abdul Majid Khan was having one of the leased plots irrigated. Appellants Nos. 1 to 4 were seen going towards the well when Abdul Majid Khan and his two companions (Said Khan, deceased, and Said Khan P.W. 2), followed them and Abdul Majid Khan asked them to stop. According to the dying declaration of Abdul Majid Khan which we believe, Tufail Ahmed Khan asked Irshad Ullah Khan to deal with Abdul Majid Khan before going to the well. Upon this Irshad Ullah Khan fired at Abdul Majid Khan and appellants Nos. 2 to 4 joined the attack by vising their lathis. What Tufail Ahmad Khan said to Irshad Ullah Khan clearly shows that the common intention was to beat Abdul Majid and his men and to prevent him from irrigating one of the fields leased to him. Then as pointed out by the learned Government Advocate, there is another point which shows the common intention of the appellants. When Irshad Ullah Khan fired at Abdul Majid Khan and wounded him, the other three accused made no attempt whatsoever to stop Irshad Ullah Khan from using his gun any further. On the other hand, they themselves started beating the men in the party of Abdul Majid Khan, who had come to render help. We believe further that Irshad Ullah Khan was carrying a gun not for the purpose of shooting pigeons but to use, if necessary, to stop the irrigation. All the accused must have known that to gun. might be used. On these facts we are of opinion that Section 34 of the Penal Code is clearly applicable to the case of the appellants Nos. 2 to 4.
14. For these reasons we hold that they had been rightly convicted by the Court below. The appeals of all the appellants are dismissed. We confirm the death sentence passed upon Irshad Ullah Khan and direct that it be carried out according to law. As regards the sentences against appellants Nos. 2 to 4 we direct that the sentences under Section 307 will run concurrently with those under Section 302 read with Section 34 of the Indian Penal Code.