Cecil Henry Walsh, Actg., C.J.
1. This is an appeal against a conviction of eight people for a variety of offences which may be compendiously described as an unjustifiable and lawless attack enforced upon some low caste inhabitants of the village over a grievance, or a fancied grievance, resulting in serious injury, including the fracture of an arm to two men, the unfortunate death of a little child who was deserted by the Chamars who fled from the spot, the destruction of a chaupal of small value, but which no doubt cost money to these Chamars, and a general riot. It is probably idle to protest against the multiplication of the sections which the lower Courts persist in making in order to cover every conceivable offence that the facts may possibly establish in the course of a trial. It is not as a rule a convenient practice and this is a good example of the serious consequences which may arise from surplusage. With all respect to the learned Judge who tried this case, he has overlooked certain legal difficulties. How this child got into the chaupal no one knows precisely. It is not alleged that the accused knew that the child was inside; it would be difficult, and even wrong, to assume against them that they knew, or ought to have known, that it was likely to get inside. The natural conduct of a father, or anyone else at a disturbance of this kind, with a child in his arms, is not to leave it behind, and the natural conduct of a child is not to slip from a comfortable seat in the arms of a man on to the ground, and it is impossible to resist the conclusion that this child was deliberately left behind when its life might have been saved by the man who had the charge of it. But none of this speculation can be fairly brought within a measurable distance of the inference that the accused persons were likely to know that the child was within the zone of danger. If on the other hand, as my brother pointed out in argument, it were proved against them that they knew that the child was there at the time they set fire to this inflammable erection, it is not a case under Section 304; it would be a case under Section 302, and the only fair inference to draw as regards the conviction under Section 304 is, that the Judge did not have the case presented to him in such a way as to give him an opportunity of working it out. It is unreasonable to drag in Section 304 which has no application, and in that respect the appeal must be allowed and the convictions quashed. Much the same must be said about 436. Here again the mistake the Judge has made is probably due to the multiplicity of offences and to his failure really to study the section in the light of the facts with which he had to deal. Whatever the reason of the Legislature may have been the fact remains that the section is narrowly confined to the destruction of any building; (the word 'any' in that sense meaning, a certain building, or a particular building) which is ordinarily used as a place of worship, as a human dwelling, or as a place for the custody of property. It is absolutely necessary, in order to convict an accused under this section, to prove that the building which he destroyed came within one of those classes, and the words 'ordinarily used' do not mean that other buildings are from time to time used for such purposes, but they mean that that particular building is itself used. Of course, if there were evidence that this chaupal had been used as a human dwelling, it would be brought within the section, but in the absence of evidence of that kind, no offence under Section 436 is established, and it is really a startling thing to find two people sentenced to ten years' imprisonment under a section which has no application whatever to the offence charged. Looking through the sections which are germane to this matter, we come to the conclusion really that Section 426, the mere commission of mischief, happens to be the only one which is applicable. It does not really matter, as the learned Judge has said that the worst part of this case is the lawlessness the rioting and the injury done to the person, and in our opinion even if this chaupal had been ordinarily used so as to come within Section 436, a sentence of ten years' imprisonment is wholly disproportionate to any possible aspect of the crime from a moral point of view, provided that that part of their misconduct, namely the setting of fire, is reasonably included in, and taken to aggravate, the general lawless conduct of which they have been convicted under Sections 147 and 325. We think, we ought to differentiate between the degrees of guilt in this case. It is obvious that Mul Chand and Khanjan were the ringleaders. Indeed they were the persons interested in the complaint against these Chamars. We think the punishment ought to be severe on the ground stated by the learned Judge, namely, the necessity for a deterrent punishment with a view to putting a stop to this type of lawlessness. It need hardly be said that none of our observations on the legal aspects of the case ought to be taken as in the least discounting the very serious risk of setting fire to any thatch or any building or erection in an Indian village where the climate is excessively dry. In a high wind terrible devastation and possible loss of life may follow. The result is that we agree with the learned Judge in taking the serious view which he did of the offence. We allow the appeal and quash the convictions under Sections 304 and 436. We confirm the convictions under Sections 147 and 325 and vary the sentences by sentencing Khanjan and Mul Chand to five years' rigorous imprisonment each in the aggregate. It may be distributed in any way they like between the two sections. Probably the lawful would be two years under Section 147, and three years under Section 325 to run consecutively; but that is of no consequence, they get five years each in the aggregate, and the rest of them three years each in the aggregate.
2. I agree in the proposed order. It seems to me that the charge under Section 304 on the facts of the case is quite impossible. To bring a case under Section 304 it is necessary to apply Section 299; 'Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the' offence of culpable homicide'. The offence of culpable homicide may be murder or culpable homicide not amounting to murder. In this case the charge is not of murder, that is to say, the accused are not charged with having intended to cause the death of the child. Therefore, the case against them must come under the second clause of that section, or the third clause. Did they when they set fire to the chaupal intend causing such bodily injury as was likely to cause death? The answer on the finding must be, no, because they did not know that the child was there and, therefore, they could not have intended to cause any bodily injury to it. Lastly, they must have known that they were likely by such act to cause death, namely, that by setting fire to this chaupal they were likely to cause the death of the child or of some other person. On the finding again, it seems impossible to hold that there was any likelihood in their minds that setting fire to this chaupal would do anything more than consume the materials with which it was built. A chaupal is not ordinarily a place of dwelling, it may be used as such no doubt, but there is no evidence in this case that it was so used. When the Chamars ran out of the chaupal these accused could not possibly have any reason whatever to think that they had left behind a child inside. It seems to me that the death of this unfortunate child was a pure accident, and the person really responsible for it was the father who left it behind when he ran away, I agree also that Section 436, on the evidence in this care, is not applicable.