1. This is an appeal by nine persons against convictions under Section 302 read with Section 149 of the Indian Penal Code and sentences of transportation for life. The main facts of the case are proved beyond all possible doubt. The cattle of the accused's party were trespassing and apparently doing considerable damage to the crop growing in a field belonging to the complainants. The complainants' party drove off the cattle and were bringing them to the pound. Some twelve or thirteen persons rushed down armed with lathis to rescue the cattle. Ranne Khan, appellant, at once gave the command to rescue the cattle and to use their lathis. The appellants' party at once proceeded to carry out the order. One of the complainants' party, a man named Lekha, ran away for about ten paces pursued by three men, all of whom art amongst the appellants, namely, Rasul Khan, Hakim Ali and Ashraf. They surrounded him cutting off his retreat. All the witnesses agree that Rasul struck him with a lathi on the top of the head. The witnesses also agree that he was struck by Ashraf and Hakim Ali. There is some discrepancy as to which of these two last-mentioned persons actually struck him on the head, but he was struck again on the head with a latthi. He was struck with lathis even after he fell to the ground. The attack was unprovoked, save about the cattle, and the complainants' party were unarmed. The medical evidence shows that Lekha received two fractures of the skull, on the right and left temple. He also had a contusion over the left side of the chest and over the left eye. Death resulted almost immediately. Another of the complainants' party, named Chuta, received injuries, which caused compound fractures of both bones of the right arm and a simple fracture of the left arm. Another man, Puran, suffered compound fracture of the right ulna.
2. We have first to consider what was the offence which caused the death of Lekha. These blows on the head with lathis were undoubtedly sufficient in the ordinary course of nature to cause death. They were intentionally struck and death resulted. The appellants party seem to have acted with considerable ferocity and cruelty. In our opinion the evidence amply justifies the finding that an offence under Section 302 was committed.
3. We have next to consider whether or not this offence was committed in 'pursuance' of the common object of the appellants party. All the members of this party came down armed with lathis, and the man who seems to have been the most influential amongst them, namely, Ranne, ordered them to use their lathis, and the lathis were at once used with the result which we have stated before. Taking the evidence as a whole, we think that it is impossible to say that the offence, which was in fact committed, was not committed in 'prosecution of the common object.' Section 149 provides 'that where an offence is committed by any member of an unlawful assembly in prosecution of the pommon object of that assembly, every person, who at the time of the committing of that offence is a member of the same assembly, is guilty of that offence.' Some attempt was made to show that the killing of Lekha was a separate transaction. We think that this contention cannot be sustained on the evidence, and that all the appellants were members of an unlawful assemble at the time that Lekha met his death. On these findings the appeals must necessarily be dismissed. We have no power to award any less punishment than the punishment of transportation for life. We, however, think it right to say that in our opinion the, most guilty of the appellants were Ranne Khan, Rasul Khan, Ashraf and Hakim Ali. There is no evidence to show that Ranne struck any blow himself, but he was undoubtedly more responsible than any one else. It is said that he is a very old man, perhaps this was the very reason why his advice was followed. It is difficult to draw any distinction between Rasul, Ashraf and Hakim Ali. They were all beating the unfortunate Lekha at the same time, Rasul beyond doubt struck him one of the blows on the head which caused the fracture to his skull. If it were within our power to do so, we would awarrl substantially less punishment to the other appellants. We dismiss the appeals.