1. In this case eight accused, Behari, Noni, Hulli, Birbal, Narain, Ganga, Ghasi and Umedi have been convicted by the learned Sessions Judge of Bareilly. The first five have appealed. The case of the remaining three has been taken up in revision. Noni has been convicted under Section 302 of the Indian Penal Code and sentenced to transportation for life. The learned Judge refrained from passing sentence of death because of the accused's youth, because he found there Was no direct intention to kill and because the wound was inflicted in the course of a scuffle and without premidi-tation. All the accused other than Noni have been convicted under sections 147, 324 read with 149 and 342 read with 149 of the Indian Penal Code, and sentenced to terms of imprisonment varying from three years to one year, the sentences to be concurrent with those passed under Section 342 and Section 147. Notice has been issued to these accused to show cause why they should not be convicted under section. 302 read with Section 149 and why their sentences should not be enhanced. It was intended that the notices should be issued to the seven accused other than Noni but owing to a clerical omission in the order passed notice has been is sued to Noni as well. Counsel has appeared to argue the case on their behalf.
2. The facts are clearly stated in the full and careful judgment of the learned Sessions Judge. The accused formed an unlawful assembly whose common object was to carry off by force Musammat Bibbo. Musammat Bibbo was the widow of a brother of the first accused Bihari. She had, as the learned Judge says 'formed a-friend-ship either legitimate or illegitimate with Jhamman Murao and Daya Ram Brahmin.' Bihari claimed to have married her after her husband's death and on 23rd May 1923 filed a complaint under Section 498 of the Indian Penal Code against Daya Ram and Jhamman. These proceedings were pending at the time of the present occurrence. The complaint was ultimately dismissed on the ground that Bihari's marriage to Musammat Bibbo was not proved. On 12th June the complaint was before the Court and on 13th June a warrant was issued for the arrest of Musammat Bibbo. On the 16th June Bihari and the remaining accused went in a body at night to the house of Jhamman in order forcibly to carry away Musammat Bibbo. Two of the party carried spears and the remainder were armed with lathis. About midnight they broke into the house and found Daya Ram, Jhamman, Musammat Bibbo and Jhamman's mother sleeping in the courtyard. They attacked the inmates of the house with lathis and Noni struck Musammat Bibbo in the abdomen with a spear. The spear penetrated the liver and intestines and Musammat Bibbo died as the result of the injury. Jhamman and Daya Ram received minor injuries. The accused's party took Musammat Bibbo, wounded as she was to the thana on a cart and tied up Daya Ram and took him there also. Bihari proceeded to make a report in which he said that they were on their way to the house to recover the woman who was about to be carried off when on the way they met Jhamman and Daya Ram in the act of removing the woman and Jhamman Murao turned on them and attacked them with lathis. The Sub-Inspector finding that Musammat Bibbo had a wound in the abdomen from which her entrails were protruding took Bihari into custody, recorded Musammat Bibbo's statement as a first report, and sent her and Daya Ram to the dispensary for treatment.
3. The facts as found by the learned Sessions Judge does not admit of any doubt and the learned Counsel who represented the accused conceded that so far as the appeal was concerned there was very little which he could urge. The learned Judge has dealt with the case of each accused separately and has shown that the evidence against all the appellants is ' overwhelming. We have no hesitation in dismissing the appeals of all the accused.
4. The real question in the case is whether the learned Judge was right in convicting the accused other than Noni only on a minor charge and 'inflicting upon them comparatively light sentence. The view which the learned Judge has taken is this. He finds that the common object of the accused was to get possession of Musammat Bibbo, using force if necessary. He finds that even if they considered that they had a right to arrest her they could not possibly think that they had a right to enter another person's house at dead of night for this purpose armed with lathis and spears and to use these weapons to overpower any re-sistence they might meet with. He' also finds that as two of the accused carried spears they must all have known that it was likely that these spears might have to be used to effect their purpose. He considers, however, that as the common object was to carry off Musammat Bibbo alive it is improbable that any of the accused knew it to be likely that either Musammat Bibbo or Jhamman or Daya Ram would be killed in the course of the proceedings. He therefore, considers that he is justified in applying Section 149 to charges under Sections 324 and 342 but not to the charge under Section 302.
5. The law applicable does not admit of any doubt, but as it is sometimes mis-understood it may be well to state it. Section 149 covers two classes of acts. The two parts of the section are quite distinct though the same act may, and frequently does fall under both. The first class of acts are those committed in prosecution of the common object of the assembly. The act may be that of one individual accused, but if it is committed in furtherance of the end which they all have in view, all the accused are liable for it. The second class of acts are those which the accused knew to be likely to be committed in connection with the carrying out of their common purpose. In the present case the common object was to carry off Musammat Bibbo alive, and her death cannot be said to have been caused in prosecution of the common object. It may indeed be that the party were determined to get her and were prepared to commit murder rather than be baulked of their object, but it is not safe to assume that they meant to go so far.
6. It does seem to me, however, that when they went armed with spears they must have known that if they encountered opposition some one was likely to be killed. The spears were meant to be used if occasion arose and a spear is one of the most deadly weapons there is. My learned brother is not prepared to draw this inference and would prefer to convict under Section 326. I am content to adopt this course for two reasons. First, the difference between us is not one of general principle but merely of what inference can be drawn, on the somewhat peculiar facts of this particular case. Secondly, an adequate sentence can be passed under Section 328.. The learned Judge appears to have overlooked that section. It is unquestionable that the accused must have at least contemplated grievous hurt as a probable result of their attempt to carry off the deceased. Concurring with my learned brother I would therefore, alter the conviction of all the accused other than Noni to one under Section 326 read with sections 149 of the Indian Penal Code and sentences them to seven years rigorous imprisonment under that section, the sentences to run concurrently with those passed under sections 147 and 324.
7. Eight men have been convicted, one of them Noni, under Section 302 read with Section 149 and the others under sections 147, 324 read with sections 149 and 342 read with Section 149 of the Indian Penal Code. Noni has been sentenced to transportation for life and the other to varying terms of imprisonment from three years to one year.
8. The circumstances are briefly that Behari and others of his relations believed that Musammat Bibbo a widow of Behari's brother, was living with two persons Daya Ram and Jhamman. Behari alleged that he himself had married Musammat Bibbo after his brother's death. Prior to the incident in this case, Behari had instituted proceedings under Section 498 of the Indian Penal Code in the course of which a warrant was issued but not executed for the arrest of Musammat Bibbo. The. Section 498 of the Indian Penal Code, proceedings were eventually dismissed. Subsequently, as is found and as is hardly disputed and we accept the account, Behari went with the other accused to the house of Jhamman and Daya Ram where he had heard that Musammat Bibbo actually was at the moment. They went armed with two spears and lathis. The spears were in the hands of Noni and Narain. The party of the accused entered the house of Daya Ram and Jhamman, and inflicted certain injuries on Daya Ram, Jhamman and the woman Musammat Bibbo. Jhamman escaped but the accused captured Daya Ram and the woman and took them off to the thana, taking them en route to the chaukidar and the mukhia. Daya Ram they took along with his hands tied. In the course of effecting this capture, they inflicted some slight injuries on Jhamman, some slight injuries and a flesh wound on the head of Daya Ram, the latter wound said to have been inflicted by Narain with a spear, and a very bad spear wound in the stomach of Musammat Bibbo inflicted by Noni and some slight injuries. From this wound in the stomach Musammat Bibbo eventually died.
9. The only question that has been argued before us is as to whether in pursuance of the notice for the enhancement that was issued by this Court the convictions of the seven appellants other than Noni should be altered to convictions under Section 302 read with Section 149 of the Indian Penal Code, and sentences passed accordingly.
10. The whole question really turns on whether the words in Section 149 'In pursuance of the common object or knowing it to be likely' are applicable to this case or not, in connection with the offence described by Section 302 of the Indian Penal Code. There can be no question but that ordinarily if accused persons go armed with spears in superior force intending to carry out by force a purpose which they know others will resist, each of the accused must be taken to have known at least that a death caused by one of his party was likely to be caused.
11. This case is not so simple.
12. To my mind the circumstances justify two very different inferences, the difference being dependent on whether we are regarding the fatal wound inflicted on the woman Musammat Bibbo or the spear wound inflicted on the man Daya Ram. To take the case of the woman first.
13. Any individual of such a party (a) may share a positive common purpose to kill, or (6) may be reckless whether there is killing or not without actually intending it, or (c) may reasonably understand that the definite intention is not to cause death. In the first two cases Section 302 read with Section 149 is applicable; in the third case if and when established, it is not.
14. In my opinion this is one of the rare cases in which the third proposition can fairly be said to be established.
15. It is admitted by the Crown that the first proposition does not apply here, but it is. urged that the second proposition is applicable, that it may fairly be presumed that all the accused knew at least that the woman's death was likely to be caused. To state the case for the Crown at its strongest, the accused knew that an act such as Noni's was likely to be committed for they knew that several members of their party were animated by very bitter feelings against Daya Ram, Jhamman and the woman; they knew that two, of their party were going armed with spears and they knew that they were going in superior force.
16. On the other hand, from the other circumstances in the case already set forth it is a very fair and a just inference that when the conspirators started out their sole definite intention was to arrest the woman and take her to the Police and nothing was further from the contemplation of any of them than that the woman might be killed. How then can it be said that the inference is justifiable in these circumstances that each of the party had the knowledge of likelihood that must be established before Section 149 can be invoked. It must be remembered that we are concerned at present only with the death of the woman. Had Daya Ram or Jhamman been killed different considerations might have arisen on the facts, but that we are not considering. So far then as regards the death of the woman I hold Section 302 read with Section 149 inapplicable in the circumstances of this case.
17. The case bears a totally different aspect in regard to the spear wound inflicted on Daya Ram. It is true that Daya Ram was taken to the Police Station when he was captured but there was no warrant out against him and a just inference can be drawn that the spears were intended to be used and known to be likely to be used against the man who might resist them. Section 149 is, therefore, applicable.
18. To conclude, I hold that the circumstances established in this case do not justify an inference that the accused knew it to be likely that the spears would be used against the woman but do justify the inference that they all knew it to be likely that the spears would be used against the men.
19. I agree with my learned brother that the difference of opinion between us is rather one of inference from the facts than of principle.
20. Holding as I do the accused guilty by the aid of Section 149 in reference to the use of a spear on the man Daya Ram I am unable to understand why the learned Sessions Judge did not apply Section 326. I concur with my learned brother in altering the conviction of the accused other than Noni from one under Section 324 read with Section 149 to one Under Section 326 read with Section 149, and in view of the very grave nature of the action of the accused (altogether apart from the death of Musammat Bibbo) and the fact that it is probably only owing to Daya Ram and Jhamman not putting up a stouter resistance that one or both were not killed I concur with my learned brother in passing a sentence of seven years' rigorous imprisonment, to run concurrently with the sentences under sections 147 and 342 read with Section 149.
21. By the Court.-The order of the Court is that the convictions of Behari, Hulli, Birbal, Narain, Ganga, Ghasi and Umedi under Section 324 read with Section 149. be altered to convictions under Section 326 read with Section 149 and they are sentenced to seven years' rigorous imprisonment each, the sentence to run concurrently with the sentences under Section 147 and Section 342 read with Section 149. For the rest, the appeals are dismissed.