1. This application is not of a usual character. The circumstances in which it has arisen are these:
2. In March 1924, during the Holi festival, a party of men were coming in the morning from the village Sajai in the Azamgarh District to the village of Khairuddinpur. They were on their way to celebrate the Holi in the latter village. The two villages are close together.
3. On their way they met a Mahomedan called Wazir who was sitting near a well. Wazir had lost in the previous night a certain amount of grass and thatching grass which the celebrators of the Holi had taken away with which to feed the Holi fire. Wazir was naturally not in the best temper over his loss and the party from Sajai made matters worse by taunting him with his incapacity to look after his own property. Wazir answered sharply and thereupon the party from Sajai attacked him. They chased him to his house and proceeded to pull out of the thatch the supports with which to attack him still further. He came out with a stick and apparently tried to defend himself. This party began to get the better of him.
4. The villagers of Khairuddinpur endeavoured to assist him to some extent and eventually Wazir's son Ishaq, a young man of about 25, joined in the fray. Sarju, one of the men before us then struck Ishaq on the head with a lathi and felled him to the ground and Chauthi and Bisheshar beat Ishaq with lathis while he was on the ground. The blow on Ishaq's head delivered by Sarju was delivered with such force as to fracture Ishaq's skull like an egg shell and to kill him on the spot.
5. Sarju, Chauthi, Bisheshar and Bhuleshar and others were put on their trial before the Sessions Judge of Azamgarh. He has found that the facts were as we have, described them, and on, 17th July 1924 convicted Sarju and Chauthi, Bisheshar and Bhuleshar under Section 304, I.P.C., second part. He sentenced the first two to three years each and the two remaining men to one year each.
6. The authorities took no action and the men convicted did not appeal to the High Court. The father, Wazir, however, moved the District Magistrate to send up the case for enhancement. The District Magistrate on 11th September 1924 refused to refer the case to the High Court. Wazir then put in an application through counsel on 21st October 1924 on which Mukerji, J., issued notice. Notice has been served upon the four men convicted. They are not represented.
7. The Government Advocate has appeared to watch the proceedings and at the commencement of them he asked us for a decision as to whether in our opinion it was right for us to take action when the District Magistrate considered there was no reason for taking action. This is a query which he had every right to put and which must be answered.
8. In our opinion, ordinarily the High Court should be loath to take action in the matter of enhancement when the district authorities consider the sentence as sufficient, but there are occasions when the High Court has every right to enforce its own opinion which may be a contrary opinion to that of the district authorities. This in our opinion is one of those occasions.
9. It is not for us to say why the District Magistrate of Azamgarh considered these sentences sufficient in every instance. It is enough to say that we have arrived at exactly the contrary opinion. Looking at the case at its best and not losing sight of the fact that the villagers of Khairuddinpur may have endeavoured to repel force with force and that Wazir and Ishaq may have used sticks or cudgels in their own defence the case is bad enough. It is further to be remarked that not a single one of these persons ever put up a defence that there had been a free fight. They apparently had not a scratch upon them and denied their presence at the scene, a defence that the Judge has found to be obviously false and a plea which they have not ventured to assert in appeal.
10. But looking at it from the point of view most in favour of these men how does the case stand? The Sajai men come into the adjoining village. They pass an inoffensive Mahomedan, taunt and insult him. It is even suggested that they threw cowdung and mud at him and when the man retorts as he had every right to retort they proceed to attack him. They drive him into his own house, pull down the supports of his own thatch in order to attack him, further and when his son comes to his assistance Sarju strikes a very violent blow which fractures the son's skull into pieces, and after he falls Chauthi and Bisheshar attack in a cowardly manner the prone body.
11. We cannot inflict a sentence upon any of these persons greater than ten years' rigorous imprisonment without converting this application into an appeal. We have no right to do that, and we think we are doing sufficient in the interest of justice in accepting the Sessions Judge's view, erroneous as it was, that only a minor offence punishable under the second part of Section 304 was committed.
12. We enhance Sarju's sentence to one of ten years' rigorous imprisonment and we enhance the sentence of Chauthi and Bisheshar to a sentence in each instance to five years' rigorous imprisonment. We do not interfere in the case of Bhuleshar.