1. The appellants Bhageru, Musai and Chekuri Ahirs have been convicted by the Sessions Judge of Mirzapore of having been members of an unlawful assembly whose object was to beat Raghu Ahir and in prosecution of which one or more of them struck blows at; Raghu with the intention of causing injuries which he or they knew to be likely to cause his death and did in fact cause his death.
2. It appears that Raghu took a widow into his keeping and that his relations and caste-follows resented his action and put him out of caste. On the day of the Holi (March 15th, 1911) Budhai, uncle of Bhageru, had a quarrel with Raghu and threatened to beat him. Bhageru and two men, named Bhagwan and Ajudhia, were standing close by with lathis in their hands. The witnesses Jaimangal, Jarbandhan and others intervened and induced Budhai to go home. This was about 3 P.M. According to the evidence of Debi Prasad, son of Raghu, Musai and Chekuri went to Raghu's house about 4 hours later. Chekuri had some words with Raghu accusing him of having quarrelled with him (Chekuri's Ustad.) He also demanded payment from Sukhdeo, who was living in the same house, of a small debt. The money was paid and Chekuri and Musai went away, the former saying to Raghu that he would go and fetch Bhageru, Bhagwan, Ajudhia and Chekuri, About an hour later Bhageru, Bhagwan and Ajudhia, according to Debi Prasad, went to the house of Musai and Chekuri and said they would beat Raghu to death, and Musai and Chekuri said, 'we are coming with you,' and all five went armed with lathis to Raghu'a house. Some of the villagers persuaded them to return but just then Chekuri appeared and urged them to beat Raghu. Bhageru struck the first blow, then Bhagwan and then Ajudhia and Bhageru struck him again. None of the witnesses say that Musai and Chekuri took part in the beating Snkhdeo, already mentioned, says that Musai and Ohekuri came up with the others who did beat Raghu, so also does Parbatia, widow of Raghu. But, on the other hand, Jaimangal and Jarbandhan, who were admittedly there, say that they did not see Musai or Chekuri with the men who beat Raghu. Nor did Raghu in his report to the Police made the same day or in that statement which he made to a Magistrate on the following day say that he had seen Musai and Chekuri with the men who beat him. Debi Prasad, Sukhdeo, and Parbatia are all interested in securing the conviction of Masai and Chekuri. Jaimangal and Jarbandhan are not. We do not think that it, is safe to hold upon the evidence of Debi Prasad, Sukhdeo and Parbatia that Musai and Chekuri brought the other men to beat Raghu.
3. There remains the question what offence was committed by the appellant Bhageru. If, as we hold, Musai and Ohekuri cannot be regarded as members of the unlawful assembly, four men only joined in the attack upon Raghu and, therefore, no unlawful assembly has been proved to have taken place. The evidence makes it quite clear that Bhageru struck deceased on the head but that it was not the wound inflicted by Bhageru that caused Raghu's death. Bhageru must, at least, be convicted of having caused grevious hurt. He can, in the circumstances, be convicted under Section 302 only if there was a common intention on the part of Bhageru and his companions to cause death or bodily injury which was likely to cause death or which was sufficient in the ordinary course of nature to cause death. He may be convicted under Section 304 if their common intention was to make a violent assault upon Raghu and they knew that they were likely to cause his death. Their intention must he gathered from what they said and what they did. If Debi Prasad is to be believed, three of them said that they would beat Raghu to death, but this statement is not supported by any other evidence; but several witnesses say that when Raghu had been knocked down Chekuri said; 'don't beat him any more or he will die.' In the face of this evidence it is difficult to hold that Raghu's assailants intended to cause his death or bodily injury which was likely or sufficient in the ordinary course of nature to cause death. But one of the four men who joined in the attack struck Raghu a violent blow on the head which knocked him down and another or others struck him in the stomach with such force as to rapture his intestines. Men who attack another in this savage manner mast be taken to have intended to cause serious bodily injury and to have known that they were likely to cause death. All are liable to conviction under Section 304, Indian Penal Code, with reference to the provisions of Section 34, Indian Penal Code. But, patting aside Section 34, we find that the Civil Surgeon states that the blow on the head caused congestion of the membrane of the brain and extravasation of blood on the surface of the brain and might have caused death independently of the injuries to the abdomen. Bhageru must be taken to have known that by striking Raghu with such force on the head he was likely to cause his death. He must, therefore, be convicted under Section 801.
4. For the above reasons, we allow the appeal of Musai and Chekuri, set aside their conviction and direct that they be released. We set aside the conviction of Bhageru under Sections 302 and 149, Indian Penal Code, and convicting him under Section 304, Indian Penal Code, sentence him to seven years' rigorous imprisonment to count from the date of his conviction in the Court of Session.