1. Eight men have been convicted of an offence under Section 301, I.P.C. for causing the death of one Durga by beating him with kicks and fists. There cannot be the slightest doubt that these eight men went to Durga's field and beat him. The motive appears to be their anger at Durga's cattle constantly grazing in the fields of other cultivators. The learned Judge of the lower Court has on the basis of the written statements of some of the appellants discovered another motive, that of the enmity of the zemindars against Durga. Such a deduction is entirely unfair to the appellants when no such enmity was put forward on behalf of the prosecution. The defence was that certain appellants were falsely implicated because they favoured certain zamindars. That is not a sufficient basis to jump to the conclusion that the zamindars had enmity against Durga and engineered the beating of Durga by their own partisans. Death was caused by the breaking of a large number of ribs through pressure, and not by striking with lathis. It is clear, therefore, that some of the appellants must have acted in an unusual manner, and the Judge ought to have taken care to distinguish between the guilt of the different appellants. He has done nothing of the sort and lumped them all together in a conviction under Section 304. The charge framed is very unsatisfactory without keeping in mind the provisions of Section 149, I.P.C. The words of the charge are:
You on or about the 8th day of August 1928 at Makraon in the morning conjointly caused the death of Durga Kumhar by beating him with fists, blows, kicks and knee-strokes and two to three of you bestrode Durga with full weight and force in such a way as to cause to Durga 19 injuries including fracture of 13 ribs in 15 places which injuries you knew likely to be fatal, though you did not intend to cause Durga's death, and thereby committed an offence punishable under Section 304 read with Section 147(3. 149), I.P.C.
2. The common intention of the rioters is not mentioned; nor is it mentioned that the ribs were likely to be broken in prosecution of the common object of the rioters. None of the rioters carried a lathi. So it is clear that the common object was only to cause simple hurt. It then rested with the prosecution to prove that the common object was the breaking of ribs, or that the breaking of the ribs was such an act as the members of that assembly knew to be Likely to be committed. One witness, Bharose is a man gifted with observation and has given a very accurate description of the assault. The main argument of Mr. O'Neill was that the appellants were all wrongly prosecuted out of enmity, and that no one witnessed the occurrence. After reading the statement of Bharose I have not the slightest hesitation in believing that he did witness the occurrence. Mr. O'Neill's argument rested on what he chose to call the contradiction between the oral testimony and the deductions drawn by the doctor who held the post-mortem examination. There is no such contradiction in reality. The doctor agreed that pressure applied by men sitting on Durga may lead to the breaking of ribs. Bharose has very, distinctly described this method of assault. This method of assault was adopted by Zulma, Jwala and Bharosa, and it can be said in their cases that their common object was such as to cause such hurt as they knew would be likely to result in death. As to those three men the conviction under Section 304/149 is sound, and I dismiss their appeals.
3. As to the other five, there is no evidence to put the common object beyond that of causing hurt. Bharose has said that these men kept on kicking, and it can well be imagined that when some of the appellants were sitting on Durga the others could not inflict much injury on him by kicking. It cannot be expected that these five men would be prepared for the unusual course taken by Zulma, Jwala and Bharosa in sitting on a prostrate body and pressing down the ribs. If these three men had carried lathis, naturally the other men who joined in the assault would have been prepared to take into account blows with lathis and the likelihood of Durga's death. Rioters other than the three men could not be said to have predicted this extraordinary behaviour of these particular three men and to be prepared for the fatal result of the peculiar injuries caused by these three men. For this reason five men are guilty only of an offence under Section 323 read with Section 149, I.P.C. In their cases I alter the conviction accordingly and reduce their sentence to rigorous imprisonment for three months each. Jwala and Kanhaiya shall surrender to undergo the balance of their sentence.