1. The appellants, Bandhu and Bachcha, have been found guilty by the Sessions Judge of Gorakhpur of the offence of having murdered a man called Dina on the night of the 19-20th April 1923 in the village of Paikol in Deoria Tahsil of the Gorakhpur District. They have been sentenced to death subject to confirmation by this Court. The referrence inconfirmation is also before us.
2. The story is that Dina, who had formerly been a resident of Paikol but who some years ago had shifted his residence to a village called Bari in Bihar which is some 14 miles from Paikol, his brother-in-lawRajinandan of Bari, and another man called Ram Prasad of Bari were on the night in question returning from Sohnag in the Gorakhpur District,where they had been to a fair, towards Bari, and that they were spending the night in Paikol sleeping on blankets near a well just outside the inhabited area. The story continues that about midnight or a little before, a number of men came out of the night. Some of them committed, an aggravated attack on Dina by beating him with lathis. Others held down Rajinandan and Ram Prasad, closing their mouths so: that they should hot shout. After Dina had been severely attacked, he was dragged by his feet across the railway line which is 150 to 200 yards from the scene of the attack. Rajinandal and Ram Prasad, being loosed by the men who were holding them, raised an alarm. Other villagers came up. The men who were dragging Dina away, were pursued but they turned upon their pursuers so that the villagers fell back. On the other side of the railway line, at a distance of 70 or 80 yards, is the Koilar river, a tributary stream which falls into the Little Gandhak. According to the Gorakhpur Gazetteer, page 9, the Koilar usually carries water only during the rains. Dina has never been seen again.
3. We have heard the learned Counsel whohas appeared for the appellants. He has put the case for them in a very able manner, but he has been unable to satisfy us that the evidence as to the attack on Dina is unreliable. From this evidence we are satisfied that a large number of men, of whom Bandhu was the ring leader, made the attack, to which we have; already referred, upon Dina and we are satisfied that both Bandhu and Bachoha took part in the attack. There is some evidence of motive but that point is comparatively immaterial, as we are satisfied as to the salient facts.
4. It remains, however, to be considered whether on this evidence a conviction of murder can be based. Before a conviction of murder can be obtained, the Court must be satisfied that the person alleged to have been murdered is actually dead. This is elementary. Can it be said here that it is established beyond the possibility of reasonable doubt that Dina is dead? This much we know. He was brutally attacked with lathis. He was beaten apparently into unconsciousness. He was dragged away along the ground leaving traces of blood both on the fields and on the railway line. His assailants dragged him until they reached the Koilar river. Dina has never been seen since. Certainly the probabilities are in favour of the man being dead, but can it be said that there is no possibility of reasonable doubt upon the point? We are unable to arrive at the conclusion that Dina is dead, though we think it exceedingly unlikely that he is alive, and in the circumstances, we cannot uphold the conviction of murder. But on the facts it is established abundantly that the crime of an attempt to murder punishable under Section 307 of the Indian Penal Code was committed and that both the appellants are guilty of that offence. Under the provisions of Section 237 (2) of the Code of Criminal Procedure, it is open to us while upsetting the conviction under Section 302 of the Indian Penal Code to convict under Section 307 of the Indian Penal Code and this is the course which we propose to take. The appellants are in no way prejudiced by our action as their defence on the major charge includes the defence on the minor.
5. We, therefore, set aside the convictions under Section 302 of the Indian Penal Code but convict both the appellants under Section 307 of the Indian Penal Code and sentence each to transportation for life.