1. This is a jail appeal by two persons. Haidar and Muzaffar who were charged under Section 304, Penal Code,, with causing the death of one Hidayat Ullah and who were convicted by the learned Sessions Judge under Section 352, Penal Code, and sentenced to two-years' rigorous imprisonment each and a fine of Rs. 150 each. The prosecution case sets out that the houses of the accuseds adjoin the house of the deceased, Hidayat Ullah, and that a quarrel arose between the parties in regard to certain constructions. On 28th May 1934 at sunset there was a dispute which arose by abuse being exchanged, by one Mt. Lali and was followed by abuse between Niaz Ullah and the two accused and the accused beat Niaz; Ullah with lathis and also hit Mt. Lali Hidayat Ullah at this stage interfered. by going upon his roof where the dispute was taking place and he was struck, by the accused with lathis and fell down unconscious. After this Alladia was beaten by the accused and Mt. Umdi received a blow and the accused. were then struck by Niaz Ullah as they were departing. A report was made on the night of 28th and 29th May, after midnight without delay as the thana was 9 miles away and the injured: persons, including the unconscious Hidayat Ullah, were taken to the thana. The prosecution case is put forward, in the report. Hidayat Ullah died in hospital on the evening of 29th May. Various witnesses were put forward for the prosecution whom the learned. Judge finds to have been more or less connected with the family of the deceased. One witness who was independent was not named in the reports. The accused admitted that there had been a quarrel on the occasion and said that the quarrel had taken place on the roof of the deceased and that Niaz Ullah, Hidayat Ullah and Alladia attacked them with lathis and they defended themselves. They said that the injury on the head of Hidayat Ullab was caused by a lathi blow of Niaz Ullah which struck Hidayat Ullah by mistake. The Court has held that the story of the accused is not established and that the story of the prosecution is correct. I see no reason to differ from that conclusion and on that finding the Sessions Court should have convicted the accused. The Court also found that the medical evidence showed that they were six simple injuries on each of the accused and that the injuries must have been received in a lathi fight between the parties but that the accused were aggressors. I see no reason to differ from this finding of the Sessions Court. On this finding I consider that the conviction should been under Section 304, Penal Code. The learned Sessions Judge Mr. F. Rustomji held that on the strength of a number of Punjab rulings he was bound to convict under Section 325, Penal Code, and not under Section 304, Penal Code. His proposition is:
where a man receives only one blow on the head and dies and there is no evidence to show which of the two persons attacking him gave that blow, neither of the two can be convicted under Section 304, Indian Penal Code, but both of them can be convicted of an offence under Section 325, Indian Penal Code.
2. The medical evidence here shows that Hidayat Ullah died from a fractured skull caused by a lathi blow on the head and that there was one external wound on the head and no other injuries were mentioned in the post mortem examination or in the evidence. The other persons on the side of the deceased also had injuries. There was therefore a common intention on the part of the accused to beat the opposite party with lathis. The view of the Court was at one time put forward in a certain ruling of this Court Chandan Singh v. Emperor 1918 All. 209. That ruling was overruled by a ruling of a Bench of this Court in Emperor v. Gulab 1918 All. 420. The view that Section 304 applies to a case of this kind is also held in a ruling reported in Ishad Ullah Khan v. Emperor 1933 All. 528. In that case there were four accused persons, one of whom had a gun and he shot and killed the deceased. The three remaining accused persons had lathis. The person who fired the shot was convicted under Section 302, Penal Code, and the other three persons were convicted under Sections 302-34, Penal Code, on the finding that all must have known that the gun might be used in furtherance of a common intention of all accused. In the present case the two accused had the common intention of beating the party of which the deceased was a member. The deceased died as a consequence of a blow struck in that beating. Both the accused are therefore responsible under Sections 304 and 34, Penal Code. On this view of the case, the sentence which has been imposed, of two years' rigorous imprisonment and a fine of Rs. 150. each is not excessive. Accordingly I dismiss this appeal.