1. In this case the five accused were charged with rioting armed with deadly weapons and with having murdered one Chinna Grangayya on the 15th May last, offences punishable under Sections 148 and 302 of the Indian Penal Code. The Sessions Judge found the accused not guilty of those offences, but guilty of simple rioting and of culpable homicide not amounting to murder (sections 147 and 304 of the Indian Penal Code). The accused appeal against their conviction and this Court, as a Court of Revision, has given them notice to show cause why they should not be convicted of murder and be sentenced for that offence.
2. There cannot, we think, be the slightest doubt that the accused are guilty of rioting and in the course of it killed Chinna Gaugayya, as found by the Sessions Judge.
3. [Their Lordships here discussed the evidence and continued:] We agree with the Sessions Judge that the five accused killed Chinna Gangayya. We are, however, quite unable to accept his view that the offence was not murder. He says that 'they (the accused) had no intention to cause his death or to cause such bodily injury as was likely to cause his death, but they only wanted to beat him with the knowledge that the beating was likely to cause death. He was not an important member of the opposite party, whom they might be supposed to have intended to kill. They beat him because he sided with the opposite party and threw stones against them for which I do not think the accused would have intended to kill him or would have intended to cause such bodily injury as would have killed him. If the accused really intended to kill the man, they would not have left him with life but would have beaten him to death then and there. Moreover, the deceased also caused provocation to the accused by throwing stones at them'.
4. We think that this is an altogether wrong view to take of the effect of the prosecution evidence. The evidence shows that the first four accused were armed with sickles and the fifth with a spear, and that the first and second accused struck the deceased on the back and neck respectively with their sickles, the deceased fell, and the other accused then fell on him and beat him, and one witness (third prosecution witness) says that the fifth accused pierced him with a spear. The medical evidence is in accordance with this. It shows that there were no less than ten incised wounds on the neck and shoulders and head of the deceased. One on the head was three inches long and cut asunder the outer table of the skull. Another was 5i inches long and 2 inches deep, extending from the nape of the neck, round the side and to the front of the neck. Another was 5 3/4 inches long and 2 inches deep on the shoulder. There were three others, each an inch deep. There was another, 2 1/2 inches long, on the right side of the neck, and another 4 1/2 inches long on the back of the head extending to the cheek, and so forth. When five men attack another with sickles and a spear and inflict such injuries as these on him, so that he dies within 15 or 20 minutes in consequence of the wounds, it is not reasonable to hold that they did not intend to kill him. In law a man is presumed to intend the ordinary and natural results of his acts. The acts of the accused did, in fact, cause the death of the man and there is nothing to suggest that they were not sufficient to cause death as their ordinary and natural result. There is no suggestion that there was any special reason, such as a diseased spleen, which made the injuries more fatal than might naturally be expected. In these circumstances, it is immaterial to say that he was not an important member of the opposite faction, or that if they had intended to kill him they would not have left him alive but would have finished him on the spot, or that the deceased gave some provocation by throwing stones at the opposite side. If such provocation was given it was certainly not of so grave and sudden a character as to have deprived the accused of the power of self-control. There is no evidence that any of the accused were struck by the stones. In fact any such provocation was not pleaded nor was it relied on in the argument before us. We must therefore hold that the accused, Kambham Bali Reddy, Kambham Inna Reddy, Gajjala Venkata Reddy, Kambhan Saviri Reddy and Kothapu Pilla Gangayya are guilty of the murder of Chinna Gangayya.
5. It is, however, contended for the appellants that we have no power to remedy the error into which the Sessions Judge has fallen except by ordering a new trial on the charge of murder. We do not accept this contention. Section 423, Clause (b), of the Criminal Procedure Code expressly empowers an Appellate Court hearing an appeal from a conviction (as in this case) to alter the finding; see Appanna v. Pithani Mahalakshmi I.L.R. (1911) Mad. 545 and Hanumappa v. Emperor : (1911)21MLJ805 . The appellants cannot rely upon Section 403 of the Criminal Procedure Code and plead the acquittal by the Sessions Court on the charge of murder as a bar to the jurisdiction of this Court, because, as pointed out in Queen-Empress v. Jabanulla I.L.R. (1896) Calc. 975, the present appeal is not a second trial, but only a continuation of the trial in the Sessions Court. The decision in Krishna Dhan Mandal v. Queen-Empress I.L.R. (1895) Calc. 377, is to the same effect, where it is observed, 'when an act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, an appeal from a conviction for any one of such offences must lay the whole case open to the interference of the Appellate Court notwithstanding any order of acquittal by the first Court in regard to any of the other offences. The interference of the Appellate Court in such a case is directed primarily, not against the acquittal, but against the conviction which is called in question by the accused, though if the interference is to be rational and complete, the Appellate Court must deal with the whole case.' Nor can they rely on the last paragraph of Section 439. That paragraph cannot be held to limit the powers of a Court of Appeal. It only limits the powers of the High Court when acting, not as a Court of Appeal, but as a Court of Revision. It prevents the High Court when acting as a Court of Revision from converting a finding of acquittal into one of conviction. But Section 423, Clause (b), has no such restriction. The only restriction under that clause is that the Court of Appeal cannot enhance the sentence.
6. It may be observed that, under Section 280 of the Criminal Procedure Code of 1872, it was enacted that the Appellate Court 'may alter and reverse the finding and sentence or order' of the Court below, 'and may, if it see reason to do so, enhance any punishment that has been awarded.' This power of enhancing the sentence was taken away from the Courts of Appeal by Section 423 of the Code of 1882, which so far as this matter is concerned, is the same as Section 423 of the present Code. The Courts of Appeal include not only the High Court but also all Courts of Session and, in practice, all District Magistrates and first-class Sub-divisional Magistrates.
7. It may well be that the Legislature thought that the power to enhance sentences ought not to be entrusted to so large a number of Courts, many of which would, in practice, be comparatively inexperienced. But that reason would not apply to the High Court, and so we find that in Section 439 of the Code of 1882 (which is the same as Section 439 of the present Code) it was enacted that the 'High Court may, in its discretion, exercise all the powers conferred on a Court of Appeal by Sections 195, 423, 426, 427 and 428 or on a Court by Section 338' and it is expressly added, 'may enhance the sentence.' The effect of the two sections read together is that the High Court when hearing an appeal against a conviction may, under Section 423, Clause (b), alter the finding and then as a Court of Revision may, under Section 439, enhance the sentence so as to make it appropriate to the altered finding.
8. Sub-section (4) of Section 439, which enacts that 'nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction,' is not, if rightly construed, inconsistent with this view. The prohibition in Sub-section (4) refers to a case where the trial has ended in a complete acquittal, not to a case like the present, where the trial has ended in a conviction but where the Court has wrongly applied the law or has wrongly found some fact not proved, and has, in consequence, held that the conviction should be under some section of the Code other than the section properly applicable as any other construction would be inconsistent with the power to 'alter the finding' given to the Court as a Court of Revision by virtue of its power to exercise the power conferred on a Court of Appeal by Section 423, Clause (b), and the terms of a statute should not be so construed as to involve an inconsistency between its different parts. This view is borne out by the language of Section 423 Clause (a), which speaks of 'an order of acquittal' in the sense of an order finding the accused not guilty on any of the charges framed against him, when contrasted with the language of Clause (b) which provides for the Appellate Court altering the finding where the accused has been convicted by the first Court on certain charges but not on other charges.
9. We are not aware of any reported decision opposed to the view we have taken. The observations of the Full Bench in Queen-Empress v. Balwant I.L.R. (1887) All. 1324 are not applicable to the present case, since in that case there was a complete acquittal and there was no appeal before the High Court against a conviction so as to make Section 423(b) read with Section 439 applicable, and the effect of that provision was not considered.
10. On the other hand this Court has more than once acted in accordance with the view we have taken. In Re Govindan Criminal Appeal No. 600 and Criminal Revision Case No. 400 of 1903 the second accused was charged with murder (section 302, Indian Penal Code) The Sessions Judge acquitted him of that offence, but found him guilty of culpable homicide not amounting to murder (section 304, Indian Penal Code), and sentenced him to transportation for life. He appealed to this Courtwhich also gave notice of revision, and this Court (Sir Subramania Ayyar, Officiating C.J. and Boddam, J.) convicted him of murder and sentenced him to death. Again in Re Sathu Savara Criminal Appeal No. 143 and Criminal Revision Case No. 137 of 1907, the accused was charged in the Sessions Court with murder (section 302, Indian Penal Code), but was acquitted of that offence and convicted only of voluntarily causing grievous hurt (section 325). The accused appealed to this Court, which also gave notice of revision, and the Court (Benson and Wallis, JJ.) held that he was guilty at the least of culpable homicide not amounting to murder, and added 'we accordingly, as a Court of Revision, convict him of that offence,' and it enhanced the sentence. It is true that in neither of these cases was the legality of altering the finding called in question or discussed, but for the reasons already-stated we are of opinion that the procedure was legal though, no doubt, the power should in practice be exercised sparingly, as, in fact, it has been in the past.
11. In the result we alter the finding in the present case to one of murder punishable under Section 302, Indian Penal Code. There was no premeditation and we think the ends of justice will be satisfied by the lesser penalty allowed by law.
12. In lieu of the sentences imposed by the Sessions Judge we sentence each of the five accused to transportation for life.