1. The five appellants have been convicted by the Sessions Judge of East Godavari of an offence punishable under Section 395 of the Indian Penal Code. Since death had resulted from an injury caused by the first appellant, he was sentenced to transportation for life. The other appellants were sentenced to ten years' rigorous imprisonment each.
2. The deceased had been on bad terms with appellants 1 to 3 for some time, because the first appellant I ad abducted his daughter, Appayamma and after keeping her for some time had sent her back. The second appellant had abducted the niece of the deceased ; and she too was sent back after some time. The first three appellants are brothers. The fourth and fifth appellants are friends and associates of the first appellant. On the night of the 25th/26th of June last, while the deceased, his wife (P.W. 7), his daughter (P.W. 10), and his son (P.W. 11), were sleeping outside near their house, the five appellants came there. P.W. 7 woke up and asked the man nearest her who he was and why he had come. That man was the first appellant. He immediately struck her on the left leg and left arm, She saw the other appellant standing there, the first appellant who had beaten her being armed with a crowbar and the others with sticks. Her cries attracted her husband, who came to her side. As soon as he arrived, he was attacked by the first appellant with the crowbar that was in his hand and struck on his left thigh and left upper arm. P.W. 10, the daughter of the deceased, came to his assistance and was also beaten. The appellants then began to break open the house, the first appellant using his crowbar and the other appellants assisting in various ways, the fourth and fifth appellants standing outside to keep people from entering the house. Two boxes that were inside were removed and opened and left not far away from the house. While the boxes were being removed, P. W. 11, the son of the deceased, came on the scene and was also beaten.
3. Information was given almost immediately to P.W. 9, the Village Munsiff of Maruvada, who came, recorded a statement, Exhibit P-9, from the deceased, and sent information to the police and Sub-Magistrate. He himself saw the boxes that had been forcibly broken open. The complaint of the deceased made mention of the contents of the boxes. Later on, another statement, Exhibit P-13, was recorded from the deceased by the Head Constable who came for investigation. Finally, when the deceased was admitted into the hospital, 2ind the doctor found that his condition was serious, the local Sub-Magistrate was sent for and a third statement, Exhibit P-r, was taken from him. These statements were recorded on the 26th, 27th and 28th June, respectively.
4. The appellants were charged under Section 396 of the Indian Penal Code with conjointly committing dacoity and that while doing so, one of their number (the first accused) committed murder. The learned Judge came to the conclusion that since the injury to the deceased was not such as to make the person causing it guilty of murder, he acquitted the appellants of the offence with which they were charged, but invoking his powers under Section 238 of the Code of Criminal Procedure, he found them guilty of the minor offence of dacoity. An offence punishable under Section 396 of the Indian Penal Code is triable by assessors, whereas an offence punishable under Section 395 of the Code is triable by a jury. It is argued that it was not open to the learned Sessions Judge to convict the appellants of an offence triable only by a jury.
5. There can be no doubt that the appellants were properly tried. They were charged with an offence punishable under Section 396 of the Indian Penal Code. Section 269 of the Criminal Procedure Code, read with the consequent notification of Government, made it incumbent on the Judge to try the appellants with the aid of assessors. Since he did that, the trial was in accordance with the directions of that section and was therefore legal. There is nothing in any part of the Code of Criminal Procedure, as far as we have seen, which suggests that a person can be convicted in a trial by assessors only of an offence that is triable by assessors or that he can be convicted on trial by a jury only of an offence which is triable by a jury. Section 238(2) says that when a person is charged with an offence and the facts proved constitute only a minor offence, he may be convicted of the minor offence, although he is not charged with it. It therefore empowers any Court, whatever the nature of the tribunal may be, to convict a person of a minor offence. The only exception to the general rule laid down in Sub-section (2) is found in Sub-section (3), which prohibits the Court from convicting an accused person of any offence referred to in Section 198 or Section 199 of the Indian Penal Code when no complaint has been made as required by those sections. It is argued that if Section 238(2) be given its natural interpretation, it would have the effect of overriding Section 269, Code of Criminal Procedure. Section 269 only specifies the tribunal that shall try persons on charges relating to certain classes of offence. In other words, it relates to the trial and not to the conviction, whereas Section 238(2) deals only with the conviction. It is also argued that by trying the appellants with assessors, instead of by jury--especially as the majority of the assessors were of the opinion that the appellants were not guilty--they lost their valuable right of being tried for an offence of which they would have been found not guilty by a jury. That argument is irrelevant; if the law permits such a thing to be done, as we are satisfied that it does, we are not concerned with the effect of the law ; but we might 'say that the Code does not recognise any principle that a trial by jury is more advantageous to the appellants than a trial by assessors. The more serious offences, such as murder, are triable with the aid of assessors, whereas minor property offences are tried by jury. The opinions of assessors are no guide to the opinion they might have expressed if they had had the same advantage as a jury of being charged by the Judge and deliberating together.
6. The only case to which we have been referred in which the present question directly arose is Emperor v. Changouda I.L.R.(1920) 45 Bom. 619 in which (he learned Judges held that the terms of Section 238 of the Code of Criminal Procedure empowered the Judge to convict the accused of a minor offence, even though the accused would have been tried by a jury and not by assessors if he had been charged with that minor offence. There are many cases in most of the High Courts in which learned Judges have affirmed the legality of a conviction of a minor offence triable with the aid of assessors where the trial was by jury. In those cases, as in Emperor v. Changouda I.L.R.(1920) 45 Bom. 619 reference was made with approval to the reasoning of Bhashyam Aiyangar, J., in Pattikadan Ummaru v. Emperor (1902) 6 M.L.J. 14 : I.L.R. Mad. 243. We also with great respect think that the matter could not be expressed more aptly than it was by Bhashyam Aiyangar, J., in the passage so frequently cited with approval. He said:
The effect of Section 238 in my opinion is to invest a jury trying an offence triable by a jury with authority to find as an incident to such trial that certain facts only are proved in the trial which facts constitute a minor offence and return a verdict of guilty of such offence though such minor offence be not triable by a jury.
Benson, J., who also delivered a judgment in that case, based his decision on rather different grounds ; and we find those same views expressed in a judgment of a Bench of this Court of which he was a member, Queen-Empress v. Anga Velayan I.L.R.(1898) Mad. 15. The learned Judges were there dealing with a case in which the facts set out in the order of the Committing Magistrate showed that the offence committed was one punishable under Section 396 of the Indian Penal Code. Yet the learned Sessions Judge framed a charge only under Section 395 of the Indian Penal Code and then, as required on such a charge, tried the accused by a jury. The learned Judges were of the opinion that if the accused were not guilty under Section 396 of the Indian Penal Code, they were not guilty of any offence at all. During the course of their judgment they said:
Had the circumstances been different, so as to give ground for supposing that the accused might be guilty of dacoity without being guilty also under Section 396, then the Sessions Judge might properly have empanelled a jury, and, on the conclusion of the trial, he might under Section 269, Criminal Procedure Code, have asked their opinion as assessors as to the guilt of the accused under Section 396, Indian Penal Code, and the Judge should then have found the accused guilty or not guilty under that section. If he found them guilty, he should have proceeded to conclude the case by passing sentence. If, however, he found them not guilty, he should have then charged the jury with respect to the dacoity under Section 395, Indian Penal Code, and should have taken their verdict thereon as a jury.
As we have pointed out, this was in accordance with the reasoning of Benson, J., in Pattikadan Ummaru v. Emperor (1902) 6 M.L.J. 14 : I.L.R. Mad. 243. This reasoning did not however find favour in the cases which followed Pattikadan Ummaru v. Emperor (1902) 6 M.L.J. 14 : I.L.R. 26 Mad. 243. The procedure suggested in Queen-Empress v. Anga Velayan I.L.R.(1898) Mad. 15 seems cumbrous though correct; and we are satisfied that that adopted by the learned Sessions Judge was lawful.
7. The eye witnesses to this offence were P. Ws. 7 and 10 to 12. P. Ws. 7 and 10 claimed to have witnessed the offence from the beginning. P. W. 11 came there a little later, as has been stated above. P. W. 12 lived in a house about 30 yards from the scene of offence and was awakened on the night in question by the loud cries proceeding from the house of the deceased. He ran to the house and arrived too late to see the beating of the deceased and P. Ws. 7 and n, but he saw the boxes being carried away by the fourth and fifth appellants. When he tried to seize the fifth appellant, he was beaten on his knee by the fourth appellant.
8. The principal witnesses are P. Ws. 7 and 10 ; but the evidence of P. Ws. 11 and 12 cannot be ignored, because it affords valuable corroboration to the evidence of P. Ws. 7 and 10 and shows not only that all the appellants were present, but also that they were assisting in the removal of property from the house of the deceased and were attacking anybody who attempted to resist them. It has been argued at great length that P.W. 10's evidence should not be accepted. One reason is that in two of the three dying declarations of the deceased, P.W. 10 is not mentioned ; but we find that it is in Exhibit P-13. It is undoubtedly true that she was injured and was taken by the Head Constable together with the other injured persons to the hospital, where she seems to have told the doctor that the injuries had been caused by beating at about midnight. This indicates very clearly that she was present at the scene of offence while the dacoity was being committed and received injuries at that time.
9. The other reason given for discrediting her testimony is that when the counsel asked for a copy of her statement to the police, they were given a copy which suggested that she went to her father's house later that night and was told by her father, mother, and brother, that they had been beaten by the appellants and that nobody had told her that the boxes had been stolen. If she really made that statement, then it would be pretty clear that she was not present while the beating was taking place and that she knew nothing of what was deposed to by her. The learned Sessions Judge accepted the explanation of the Public Prosecutor that the Killadamma (the name of P.W. 10) whose statement had been given to the appellants was not P.W. 10 but a sister of another name, who was familiarly known as Killadamma. P.W. 10's evidence however shows that the other Killadamma was not present in the vicinity that night and so could not have made the statement attributed to her. Moreover, it is very clear from a perusal of the case diary of the Head Constable that the Killadamma examined by him was taken by him to the hospital the following day and that it was to her that the wound certificate was given and not to some other Killadamma ; so that it is fairly clear that the learned Sessions Judge was labouring under some misapprehension. We have examined the case diary of the Head Constable in some detail and have come to the conclusion that the statement of which the appellants were given a copy was not the statement of anybody bearing the name of Killadamma, but was the statement of one Maha-lakshmi, who has not been examined. It would appear from a perusal of the list of witnesses examined by the Head Constable that there was an interpolation of the name of Killadamma as P. W. 5 ; but the numbers against the statements of the witnesses were not then altered to correspond with the numbers in the list. Since Mahalakshmi's original number was five, a copy of Mahalakshmi's statement was given as the statement of Killadamma. Killadamma is now shown as having corroborated P. W. 2, though the use of the masculine singular shows that the remark applied originally only to P. W. 4 in the list. This alteration suggests that the case diary of the Head Constable cannot be acepted at its face value ; but we are satisfied that the statement originally attributed to one Killadamma was not made by any one of that name. It seems most unlikely that P.W. 10 was not questioned that night; and the facts set out above would show that she must have been there. Even if we cannot be sure that P.W. 10's statement was noted by the Head Constable, it is clear that she was examined on the 29th by the Circle Inspector ; and since we are satisfied, because of her injuries and the fact that she was taken by the Head Constable to the doctor on the following day, we find no reason for supposing that at any time she made a statement which was contrary to her evidence. If she was present and beaten, she could not possibly have said that she came there only after the accused had run away and was told of the incidents by her parents, sister and brother.
10. Although certain discrepancies between the evidence of one witness and that of another and between one statement of a witness and another have been referred to, we do not find any discrepancies of such a nature as to lead us to doubt in any way the general accuracy of the evidence of P. Ws. 7 and 10 to 12.
11. It was next argued that it is very doubtful whether there was any theft at all. The motive given by the deceased was the ill-4eeling between the appellants 1 to 3 on the one hand and him on the other with regard to seduction of two women of his family. We do not find this a sufficient reason for thinking that the appellants did not come with the intention of taking the property. The earliest information given by the deceased refers to the taking away of the two boxes ; and a list was given of their contents. The statement of the deceased finds support from the detailed evidence of P. W. 10. P.W. 7 made a similar statement, though our attention had been drawn to an earlier statement made by her which perhaps suggests that because of her state of mind she did not pay any close attention to the removal of the property. The evidence of the Village Magistrate shows that two boxes had been forced open and were found empty near the house. If is of course possible, as the learned advocate for the appellants suggests, that these boxes were empty when taken ; but it seems to us unlikely that those boxes should have remained locked inside the house empty, especially since at the earliest opportunity, a list of their contents was given by the deceased, P.W. 10, and others.
12. The next contention is that even though there was a theft of property, there was no conjoint taking of the property such as is necessary to sustain a charge under Section 395 of the Indian Penal Code. It is suggested that the object of the attack was to beat the deceased and that the taking of the property was merely incidental or by after-thought. The intention of the appellants must, however, be judged by their acts. They beat P. W. 7 because she challenged them. They beat the deceased because he came to the rescue of his wife. They then without hesitation began to break open the house. The very fact that the first appellant used a crowbar would perhaps suggest that he brought the crowbar because he thought that a crowbar was necessary, not for beating P. W. 7 and the deceased and others, but for breaking open the house. It was his act of thrusting the crowbar into the wall of the house that was responsible for unloosening the fastenings and which enabled him and the other accused to go inside the house. Appellants 1 to 3 removed the hasp of the door and then entered the house together. Appellants 1 to 4 stood outside to prevent other persons from entering. All the appellants then, according to the evidence of P.W. 10, helped to remove the boxes and, according to the evidence of P.W. 12, appellants 4 and 5 actually carried away the boxes. This evidence proves that the primary object of the accused or at any rate one of their objects was to break into the house and take the property. It is also clear from the evidence that injuries were caused in order to facilitate the entry of the appellants into the house to take the property. Had they not beaten P. W. 7 and the deceased and others who had come to their assistance, it would not have been possible for the appellants to peacefully open the house and take away the boxes. The appellants even beat P.W. 12, who arrived on the scene after the boxes had been taken away from the house, because he tried to prevent the boxes being carried away. The causing of the hurt and the taking of the goods were therefore parts of the same transaction and committed with the object of removing the boxes and taking their contents. The appellants were therefore guilty of committing dacoity.
13. Finally, it has been argued that the offence of dacoity has not been brought home to all the appellants. The principal part was played by the first appellant, who used his crowbar not only for beating those who cried out or resisted him, but also in breaking open the house. The second appellant struck P.W. 10 on the legs and was one of those who went inside the house to carry away the boxes. The third appellant struck P. W. 10 on the back and P. W. 11 on the leg. He, too, was one of the men who went inside to carry away the boxes. The fourth and fifth appellants did not go into the house, but stood at the doorway preventing people from approaching. The fifth appellant was then striking the eaves of the house in order to drown the cries of P. W. 10. We have no doubt on this evidence that all the five appellants participated in the dacoity.
14. There remains the question of sentence. The appellants were somewhat fortunate in not having been convicted under Section 396 of the Indian Penal Code. The act of the first appellant in giving the deceased such a severe blow on the leg, fracturing his femur, and causing such a deep and extensive wound as to lead to septicemia and death certainly merits the punishment awarded to him. The sentence of ten years' rigorous imprisonment on the other appellants might seem somewhat heavy ; but the offence committed was a grave one, in which death was caused to one person and injuries to three others. We are unable to say that the sentences are so excessive as to warrant our interference in appeal.
15. The appeal is dismissed.