1. The seven appellants have been convicted by the learned Sessions Judge of Budaun of an offence under Section 302, Penal Code, and Bhagwan Das has been sentenced to death and the other six appellants to transportation for life. They have also been convicted of offences under Sections 147, 325 and 323, Penal Code, and sentenced to rigorous imprisonment for two years and one year, respectively, under those sections. They have all appealed against their convictions and sentences, and the record has been forwarded by the Sessions Judge for confirmation of the sentence of death passed on Bhagwan Das. The incident in the course of which Chhote Lal was killed on 26th May 1934, has been described by the witnesses as follows : Chet Ram, in the course of executing a decree against Kallu, his judgment-debtor, attached a house, and Mullu filed an objection to this attachment which was to have been heard in the Court of the Munsif of Budaun on 26th May. On that date the decree-holder, Chet Ram, Chhote Lal, the deceased, Ram Chander and Kallu Ahir with a Civil Court peon. Gulzari, and the Patwari, Ram Chander, were going from their village to Court. All of them were seated in a bullock cart, except, the Patwari who is said to have been walking behind the cart. It was early in the morning, and as they went along they saw a bullock cart on the road in front of them and eight persons, standing beside it. The bullock cart is described as going along very slowly. Among the persons who were with, the bullock cart in front of them were Mullu, the objector in the execution case, and Kallu, the judgment-debtor.
2. As to what happened after this, we have two different accounts from the prosecution witnesses: the story told by Chet Ram, Ram Chander Brahman and Kallu Ahir, which is the least favourable to the defence, and the story-told by Nur Muhammad and Rafi Uddin, who were undoubtedly in the bullock cart which was accompanied by the accused persons, and who have given a version of the story which in most respects supports the story far the prosecution. According to Chet Ram's story, when he saw the bullock cart of the opposite party in the way he told the driver, Kallu Ahir, to give that cart a wide margin in passing. When his cart drew abreast of the other cart, the appellant BhagwanDas without any provocation whatever struck a lathi blow on Chhote Lal's head, on which the other accused persons attacked all those who were in Chet Ram's bullock cart. The Patwari and the peon ran away, but Chet, Ram, Kallu Ahir and Ram Chander, son of Moti, were all beaten. Chhote Lal was killed, on the spot, and a report was made in the thana some five males away at 9 a.m. This report was made by Chet Ram, and agrees with the evidence which lie afterwards gave in Court. The story told by Nur Muhammad and Rafi Uddin however is that when Chet Ram's cart drew abreast of the other cart, Chhote Lal told his servant, Kallu Ahir, to give that cart a wide berth, and he also told the accused with an abusive implication to get out of the way, on which Kallu Brahman, appellant, also-abused Chhote Lal. Chet Ram and Chhote Lal then told their driver, Kallu Ahir, to beat, the accused, and' a lathi fight started. Neither Nur Muhammad nor Rafi Uddin stated in examination-in-chief in the Sessions Court that Kallu Ahir actually struck the accused when Chhote Lal told him to do so; but in cross-examination each of them stated that the first blow in the fight was delivered by Kallu Ahir.
3. As regards the fight that followed, we have already stated that Chhote Lal appears to1 have been killed on the spot. The evidence of the Civil Surgeon who conducted the post mortem examination on the evening of the same clay shows that Chhote Lal had received eleven injuries and that his skull had been smashed to pieces. Chet Ram and Ram Chander Brahman had received seven and six injuries respectively, Chat Ram having had one of his fingers broken, but all the other injuries were simple, and evidently caused by lathis. On the other side we only find that three slight injuries were caused. The fight therefore was, a very one sided one, and in fact as Chet Ram's party consisted of only four inside the cart, including the driver, after the Patwari and peon had; run away, while the accused party consisted of seven or eight excluding Nur Muhammad and Rafi Uddin, who were with the party, but who did not join in the fight, it is, somewhat curious that Chet Ram adopted such an aggressive attitude. Even if Chet Ram's statement is to be accepted, it is clear that Chet Ram's, party had to pass the other cart and had every intention of pushing past, it, and they must have known that the cart was accompanied by the opposite party, the judgment-debtor and the objector and their friends, but they made no attempt to steer clear of this formidable party, as they might, easily have done if they had wished to avoid an encounter. According to the statements of Nur Muhammad, and Rafi Uddin, Chhote Lal was decidedly aggressive, and must be held responsible for having started the fight. The learned Sessions Judge has accepted the more extreme version of the prosecution evidence, that is to say, he has believed the statement of Chet Ram rather than the statement of Nur Muhammad, and he has discussed the incidents of the fight from that point of view, and consequently be has come to the conclusion that all the appellants are guilty of murder and that Bhagwan Das, who started the fight by striking Chhote Lal on the head, must, be hanged. We have been through the whole of the evidence and we have come to the conclusion that the account of the incident which has been given by Nur Muhammad, and Rafi Uddin, is, much more likely to represent the true course of events. We have already mentioned that Chhote Lal and his party evidently had no idea of avoiding the others and were quite determined to push past them and it is also certain that as they pushed past them, Chhote Lal made some remark to his driver. As to this, both Nur Muhammad and Chet Ram agree.
4. It is true that the party of Chhote Lal was not so strong in numbers as that of their enemies. They had however had the best of matters in the Courts, and they represented the decree-holder's party. They also had authority on their side, in the persons of the Patwari with his papers and the peon of the Court. We think it to be far more probable that they adopted or that Chhote Lal adopted, the more aggressive tone, which has been described by Nur Muhammad, and there is no reason for supposing that either Nur Muhammad or Rafi Uddin is a prejudiced witness. We regard it as certain that Chhote Lal did direct Kallu to strike the accused or some of the accused, and we have the evidence of two of these witnesses to prove that Kallu Ahir did actually strike the first blow. As to what happened after that, there can, we think, be little doubt from the account that has been given by all the witnesses for the prosecution. The appellants party were naturally incensed by the abuse and by the blow or blows struck by Kallu, and they surrounded the cart and belaboured Chhote Lal and his friends, with the result that Chhote Lal received a mortal injury and was killed. In these circumstances, we have to consider whether all the appellants have been properly convicted of murder. In our opinion, the offence is not one of murder, but the appellants cannot escape conviction for culpable homicide. Exception No. 1 or Exception No. 4 to Section 300, Penal Code, might be applied in the circumstances that we have described above, but Exception No. 4 is the more suitable. The fight arose, without premeditation on the part of the appellants, and the blows were struck in the heat of passion upon a sudden quarrel and, so far as we and able to judge, without their having taken undue advantage or acting in a cruel or unusual manner. The case would no doubt have been different if they, being a party in overwhelming strength had themselves taken the aggressive and attacked the party of Chet Ram without giving them a chance to defend themselves. They were themselves provoked, and though it would be difficult to say that : they were acting in self-defence when they surrounded the cart, we are very strongly of opinion, that they had received grave and sudden provocation and that they acted without premeditation and must receive the benefit either of Exception No. 1 or Exception No. 4. We do not consider it to be proved by whose hand the blow; or blows that were fatal to Chhote Lal were struck. We consider that the evidence of Chet Ram, even though' it is supported by the first report, is not to be relied on because this is an entirely partial account of the manner; in which the quarrel broke out and we have decided that it must be discarded.
5. Our attention has been drawn in the course of the arguments to the very irregular proceeding of the Sessions-Judge in cross-examining the appellants or some of the appellants with a view to confronting them with the statements which they made to the Investigating Officer. Statements made even by witnesses to a Police Officer in the course of an investigation are not permitted to be used in evidence for any purpose, except as provided in Section 162, Criminal P.C., that is to say, on the request of the accused the Court shall refer to the written statement and direct that the accused be furnished with a copy of it in order that the witness may be contradicted by the use of this statement. It was certainly never intended that an accused person when being examined by the Court for the purpose of explaining anything in evidence against him should be confronted with the statement which he had made to the police for the purpose of being discredited on account of any contradiction. This is however the way in which the Court has proceeded, and has come to the conclusion that the appellant Mullu is a liar. But so far as the defence in general is concerned, the only result of this irregularity has been that one of the persons put on trial, Lochan has been acquitted.
6. We consider that the evidence proves that all the seven appellants took part in this fight, and that, for the reasons we have given above, they are guilty not of murder, but of culpable homicide. We consider that they must all be held to be responsible for the injuries inflicted on, Chhote Lal and the others because when they surrounded the cart, though they acted under provocation, their assembly became an unlawful one as their common object was to inflict a beating on Chhote Lal and the others in the cart. They were not then acting in self-defence, but had passed into the aggressive and every member of their assembly became, under Section 149, Penal Code, guilty of the offence that was committed by one or more of them of killing Chhoite Lal and of injuring Chet Ram and Ram Chander.
7. In the circumstances, we do not consider that a very severe punishment Is necessary. Chhote Lal was really very largely to blame for the beating which he had invited, and the offence of beating him has to be distributed over a large number of appellants. Of these Mullu is described as an old man of 70 years, and cannot have taken a leading part in the fight. We therefore allow the appeal to this extent, that we set aside the convictions under Section 302, Penal Code, and the sentences passed under that section, and substitute therefor orders of conviction against all the appellants under Section 304-149, Penal Code, and we reduce the sentence in the case of each of the appellants, except Mullu, from a sentence of death and sentences of transportation for life respectively to sentences of two years' rigorous imprisonment under this section. The sentence of Mullu under these sections is reduced to one of six months' rigorous imprisonment. The other sentences of imprisonment are concurrent and. it is not necessary far us to interfere with them, except in the case of Mullu. His sentences under Sections 325, 323 and 147, Penal Code, are also reduced to six months' rigorous imprisonment, and will be concurrent.