1. This is an appeal by the Crown against the acquittal by the Sessions Judge of Cuddappa of the three accused on a charge of murder, the Sessions Judge having found them guilty under Section 326 only.
2. The events which brought about the killing of the deceased are simple. The brinjals of P.W. 2 were rooted up and his plough stolen. He made a complaint about this, and the ccused, rightly or wrongly, thought that P.W. 2 had thrown suspicion on them. On his way home on the day of offence while he was passing the house of the accused, they abused him. He consulted some of his castemen about this abuse, and decided to refer the matter to the elders of the caste. The accused apparently heard what was going on and knew of the decision. As P.W. 2 passed their house again on his way to the house of the elders, the three accused rushed out of the house and attacked him, beating him severely with sticks. The deceased sister, hearing her brother's cries, came to the scene and asked the accused why they were beating her brother. They then turned from him and attacked her, each delivering a blow on her head with considerable force with the sticks they held in their hands. One of these blows fractured her skull very extensively, causing a piece of bone to be pressed downwards on the brain. This led to death by compression of the brain.
3. The learned Sessions Judge had no doubts at all about the truth of the prosecution case, nor have we. In considering the question as to what offence was actually committed by the accused, the learned Sessions Judge says:
I do not consider that there was any definite intention by selecting the head for attack to cause her injuries of a particular kind. As against Nagi (the deceased) the accused had no motive whatsoever, whatever their feeling against Rosigadu (P.W. 2) might have been. It was therefore a case of merely voluntarily causing bodily injury which unfortunately proved to be fatal.
4. He then says that no doubt the accused used dangerous weapons, the sticks being 1 1/2' to 2' in diameter. He says that the hurt was rendered grievous on account of the fracture of the skull bone and he found that the accused were guilty of voluntarily causing grievous hurt with a dangerous weapon. The first sentence of the learned Sessions Judge above quoted is quite unacceptable. It is most unlikely that when the accused struck the deceased on the head they intended to strike her elsewhere and none of them could have been ignorant of the probable consequences of the acts. Having found that the accused had voluntarily caused grievous hurt, the learned Sessions Judge really found for the prosecution most of the ingredients necessary for the offence of murder. Voluntarily causing grievous hurt is defined in Section 322 as follows:
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he caused is grievous hurt, is said, 'voluntarily to cause grievous hurt'.
5. Now, if the assailant causing any grievous hurt intended to cause that grievous hurt, then undoubtedly under Section 300(3), he would be guilty of murder; for under the words of that sub-section, he would have intended to cause bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. The doctor has spoken on this point, and has said a fracture of this kind would be sufficient in the ordinary course of nature to cause death. A person can however be guilty of voluntarily causing grievous hurt who does not intend to cause grievous hurt but only knows himself likely to cause grievous hurt; and it would appear that if he did not intend to cause grievous hurt but only knew himself likely to cause grievous hurt, it would probably not fall under any of the clauses of Section 300, and so would not be murder. However, a person is considered to intend the probable consequences of his act, and a person who hits another on the head with such force as to cause a complicated fracture of the kind actually caused here, must be considered to have intended to cause such bodily injury as would in the ordinary course of nature cause death. If therefore it were clear from the evidence who had delivered the fatal blow, that accused would in our opinion have been guilty of murder.
6. We do not, however, know, and no suggestion has been made, which of the three accused delivered the fatal blow. In order that all the three persons could be found guilty of an offence committed only by one of them, it is necessary under Section 34 that they should have acted in furtherance of a common intention. If there had been other evidence of the intention of the accused or if the nature of the weapons used proved that all the three assailants must have intended to have caused an injury, which would have in the ordinary course of nature led to the death of the deceased, then all the three persons would be guilty of murder. But the weapons used in this case do not seem to have been of such a size and weight that a blow given with moderate force would ordinarily cause a fracture of the skull. It is not at all improbable that something more than ordinary force was necessary, with the weapons actually used, to cause such a severe injury; and we therefore find it difficult to hold that the two persons who did not cause any fracture of the skull had the same intention as the person who used greater force and did fracture the skull. While therefore one person was guilty of murder and two of a lesser offence, we do not know which accused committed murder and which the lesser offence. We are therefore compelled, although for very different reasons from those given by the learned Sessions Judge, to hold that none of the accused could have been 'found guilty of murder.
The appeal is consequently dismissed.