Pandrang Row, J.
1. The appellants have been convicted after a trial with the aid of assessors by the Sessions Judge of East Godavari on various charges and sentenced to undergo various terms of imprisonment which are to run concurrently.
2. The charge against them was that they formed themselves into an unlawful assembly with the common object of causing hurt to the village munsif of Anur, to which place the appellants belong, and in prosecution of that common object, one of the accused, namely, the first accused, caused grievous hurt to the village munsif with a knife. The other accused were charged' under the same section, namely, Section 326, Indian Penal Code, under the provisions of Section 149, Indian Penal Code. There was also a further charge against the first accused under Section 23(1) of the Criminal Tribes Act. There is some doubt as to whether this charge was justified or not, as he was not a member of the criminal tribe at the time of his conviction though he was a member at the time of the occurrence. The section seems to relate to the time of conviction and not to the time of the occurrence which is the subject of the case which ends in his conviction. The conviction of the first accused under Section 23(1) of the Criminal Tribes Act will be set aside and the sentence thereunder also and he is acquitted of that offence, But this will not make any material difference because there are convictions of the first accused under Sections 148 and 326, Indian Penal Code and sentences of the same description under those sections as the sentence under Section 23(1) of the Criminal Tribes Act. I shall therefore go on with the merits of the appeal.
3 As observed by the Sessions Judge, the evidence against the accused is straightforward and simple. The village munsif is P.W. 2. He has been the' village munsif for a period of 25 years and the accused have been living in that village for about 16 years. There can be no doubt therefore that the accused are all well-known to him and there can be no question of mistaken identity arising in the case. The evidence also establishes the fact that there has been ill feeling borne by the appellants against the village munsif for some years past, the ill-feeling having arisen out of nothing else than the discharge by the village munsif of his duties as a village munsif. Apparently the zeal displayed by the village munsif against the appellants, who are members of a criminal tribe, goaded them to take revenge on him and they took the opportunity when the village munsif was returning home after inspecting his fields. On the 16th of February, 1938, they waylaid him when he was alone, and felled him down with stick blows and when he had fallen down accused 2 and 3 made him sit up while the first accused deliberately cut the village munsif's upper lip with a pen knife, and in the course of this operation, the lower part of the nose was also cut. The village Munsif became unconscious and he was later on taken to his house and finally to the hospital where he had to remain as an in-patient till the 10th March. There is no doubt that as a result of the injury inflicted on him with a knife, the village munsif's face has became permanently disfigured, and even otherwise the hurt caused to him was undoubtedly grievous hurt and it was caused with a sharp instrument. The offence therefore under Section 326 is established beyond doubt so far as accused 1, 2, and 3 are concerned because there is no doubt that accused 2 and 3 at the time were jointly participating in the act by which the injury was inflicted by the first accused. Besides the village munsif who speaks to the attack on himself and the participation of all the appellants therein, there is the evidence of his nephew, P.W. 3, who saw the occurrence and went to the rescue of his uncle find ran away only after he was himself injured, and also the evidence of P.W. 4, who went to the rescue of the village munsif. P.W. 3 implicates all the appellants. P.W. 4 no doubt says that he did not see the fifth accused but saw the other four accused. His not seeing the fifth accused does not mean that the fifth accused was not there. The positive evidence about the fifth accused's presence is of P.Ws. 2 and 3 and it is sufficient to show that the omission of P.W. 4 to see the fifth accused is due to one of those unaccountable aberrations which occur when one is taken by surprise by a sudden or unexpected occurrence and is not able to take in anything that is feasible to him. In any case, the participation of all the accused in the attack on the village munsif is, in my opinion, established beyond all doubt.
4. There is also some other evidence of persons who saw the appellants running away from the scene of occurrence. I have no doubt that the case is one in which the evidence has clearly established the participation of all the accused in the joint attack on the village munsif and the offences charged under Sections 147 and 148 are established beyond doubt.
5. It has been argued with some vehemence so far as accused 4 and 5 are concerned, that they could not be held responsible for an offence under Section 326, Indian Penal Code, by the operation of Section 149, Indian Penal Code, because the common object is stated in the charge to have been to beat the village munsif whereas grievous hurt is said to have been caused to him with a knife. I presume that what was meant was that the common intention was to cause hurt and the word 'beating' was used in this sense in a somewhat careless manner in the charge. There can be no doubt that the accused knew perfectly what they had been charged with, namely, that their common object was not merely to beat but also to cause hurt; and if in prosecution of that common object to cause hurt to the village munsif, one of them happens to cause grievous hurt and that too with a dangerous weapon, the others would certainly be liable for the grievous hurt so caused, else it would make the provisions of Section 149 entirely otiose. I am therefore of opinion that the convictions of accused 4 and 5 also of an offence punishable under Section 326 Indian Penal Code, by reason of Section 149, Indian Penal Code, are right. The sentences are really not excessive in view of the circumstances of the case. The learned Judge observes that the crime was cruelly conceived and ruthlessly carried out and that the object of the appellants in cutting away the upper portion of the lip and a part of the nose was not merely to disfigure the village munsif but also to dishonour him fie also gives other reasons for imposing what he calls a deterrent sentence. The sentences do not certainly err on the side of severity and do not require any interference in appeal. The appeal is therefore dismissed under Section 423, Criminal Procedure Code.