1. The appellants, Ghulam Hussain, Eida Hussain, Raza Hussain and Maqbul Hussain, are the brothers of one Musammat Chanda, prostitute, they were charged under Section 304 of the Indian Penal Code with culpable homicide in causing the death of one Sukha. The learned Sessions Judge, on the supposed authority of Emperor v. Bhola Singh 29 A. 282 : A.W.N. (1907) 51 : 4 A.L.J. 207: 5 Cr. L.J. 130, has altered the charge to one under Section 325 and with the concurrence of the assessors as regards three of the accused has convicted them under that section. As regards Raza Hussain the assessors appear to have been impressed by an alibi which he put forward but I agree with the learned Sessions Judge that the evidence in support of this alibi is of no value.
2. It is common ground that there was considerable previous ill-feeling between Musammat Ghanda and her brothers on the one side and Sukha and the principal witness Inayatullah on the other. Three days before the present occurrence a youth named Tajju who belonged to the party of the deceased had been beaten by the other party near Chmda's house and a report had been made about it. On the day in question, 5th November 1922, Inayatullah and Sukha, according ' to the prosecution evidence, were passing Musammat Chanda's house, the four accused were there and Musammat Chanda incited them to attack the deceased and his companions which they did. It is probable that there was some previous exchange of abuse or verbal quarrel which Inayatullah has suppressed in his evidence. However that may be, Inayatullah was attacked and very badly beaten. The medical evidence shows that he had at least 12 different injuries, the first and most serious of which was on the head. His companion, Sukha, received injuries of which he died in Hospital four days later. The vault of the skull was extensively fractured and broken into five or six pieces as the result of one or more lathi blows. There were four other marks of injury on different parts of Sukha's person. The only injury sustained by any of the accused's party was a contusion on the left temple and a black eye on the person of Ghulam Hussain. Besides the evidence of Inayatullah, the prosecution case is supported by three-other witnesses who saw the accused beating the deceased and his companion. The story put forward on behalf of the accused and supported by three witnesses is that one Munna came from the toddy shop near by, abused Musammat Chanda and threatened to cut off her nose and to beat her brothers. Three of the accused beat him and drove him back to the shop. He then returned with five other persons including Sukha andluayatullah, all armed with lathis. Inayatullah slapped Musammat Chanda and on Ghulam Hussain remonstrating hit him on the head knocking him down. Two of his brothers then came out and a fight ensued between them.
3. I should have been glad of a little more assistance from the learned Judge in the way of detailed comment on. the evidence, but I agree with the conclusion at which the learned Judge has arrived that the prosecution evidence is to be preferred to that of the defence. The latter is obviously difficult if not imposible to reconcile with the medical evidence. The witnesses who support the prosecution story apart from Inayatullah are independent witnesses against whom no ground for partiality is established. The suggestion made on behalf of the accused to account for the complainant's party having received some 18 injuries one of which proved fatal as against two small injuries sustained by Ghulam Hussain is that Sukha and Inayatullah were drunk. No question as to this point was put to the Doctor who admitted them to Hospital, and the only evidence which goes in any. way to support the story is a statement elicited in cross-examination from the Head Constable Asfandyar Khan who recorded Inayatullah's report. The learned Judge does not refer to this evidence but I cannot help feeling strong doubt as to the truth of the assertion. In the first place, no note of it was made at the time of recording the report and a man who was really drunk could hardly have dictated the detailed report which was made by Inayatullah at the time.
4. I am not sure the learned Judge correctly appreciates the law as regards the liability of several accused who jointly attacked the same person and inflicted fatal injuries on him. The learned Judge refers to the case of Emperor v. Bhola Singh 29 A. 282 : A.W.N. (1907) 51 : 4 A.L.J. 207: 5 Cr. L.J. 130 but the judgment in that case has to be read in the light of a more recent case Emperor v. Ram Newaz 21 Ind. Cas. 663 : 35 A. 506 : 11 A.L.J. 804 : 14 Cr. L.J. 615. If several persons jointly attacked the deceased with lathis fracturing his skull and inflicting a number of other injuries they are all equally guilty even though it may not be possible to prove which of them actually inflicted the fatal blow. In the present case it was quite unnecessary for the learned Sessions Judge to have altered the charge. It is, however, unnecessary for me to alter the conviction as no application in revision is before me and an offence under Section 325 was certainly committed. For the reasons already given, I dismiss the appeal of all four accused.