1. This is an appeal preferred by the State against the acquittal of the two accused by the learned Stationary Magistrate, Omalur in C. C. No. 525 of 1952, on his file. The two accused were tried by the learned Magistrate for an offence under S. 325, I. P. C. The police fileda charge-sheet against the two accused for the murder of one Velayudam who died as a result of injuries he received on 13-12-1951. The case was taken as a Preliminary Register case. But after evidence was let in, the learned Magistrate passed an order on 30-4-1952, holding that only a prima facie case against the two accused under S. 325, I. P. C. was made out and discharged the accusedof the offence of murder. A charge for, an offence under S. 325, I. P. C. was framed against the accused and they were tried for that offence.
2. The prosecution case is this. The first accused was a forest guard. The second accused was his henchman assisting accused 1 in the collection of 'mamul' payment from villagers who were allowed by accused 1 to collect fuel from the Reserve Forest without a permit. The learned Magistrate finds that accused 1 had been demanding mamools from the deceased and other persons. It appears that the deceased, Velayudham, had committed default in the payment of mamul to accused 1 for '2 months prior to the occurrence which was on 13-12-1051.
The accused met Velayudham and P. Ws. 2 and S at about 3 p.m. on 13-12-1951 while they were returning from Bodamalai forest collecting fuel and asked Velayudham to accompany them to Ayyampalayam where the first accused resided as he failed to pay the usual monthly mamul of Rs. 2 and a bundle of tuel to accused 1 for two months. P. Ws. 2 and 3 also followed Velayudham and the accused towards Ayyampalayam pleading for the release of Velayudham and promising accused 1 that the mamul would be duly paid shortly.
The first accused did not pay any heed to the request of P. Ws. 2 and 3, When the party reached a Palmyra tope, where the pathway branches off to Vadugam Thainaickempatti, P. Ws. 2 and 3 made one more effort and requested the first accused for his release. Accused 1 again refused. Velayudham then advised P. Ws. 2 and 3 to stop pleading with accused 1 and to let accused 1 do anything according to law. Accused 1 got wild and assaulted Velayudham badly.
Accused 2 is also stated to have joined accused 1 and both of them gave a. severe beating to Velayudham with sandals and also with hands & legs. It is also stated that accused 1 later picked up a stone and hit the deceased, Velayudham, on his abdomen, chest and other places. Three other persons P. Ws. 4 to 6 are stated to have come there on hearing the noise and their request to the accused not to beat Velayudham was of no avail. Velayudham, the deceased, fell down as a result of the injuries he received. The accused left him there and went away.
The witnesses took the deceased to their village walking and supporting, him on their shoulders. Near the village, P. W. 2 brought a coir col and from there they carried the deceased on the cot to his house. Next morning he was taken to a hospital. The Medical Officer at the time Velayudham was brought, did not think that the injuries inflicted on him were serious. Later, finding his condition very grave, the doctor sent for a Magistrate and got a dying declaration recorded from the deceased.
This dying declaration is marked as Ex. P. 8 in the case. Subsequently the police examined the deceased and the statement made to the police is marked as Ex. P. 9. The statement to the Magis-trate was made by the deceased about 11-50 a.m., and to the police at about 1 p.m. He died at about 2-15 p. m. on the same day. An inquest was held over trie body of the deceased by the police on the same day between 5 and 7-30 p. m. P. Ws. 2, 3 and 7 were examined at the inquest. The Inspector of Police proceeded to Ayyampalayam on the same night and found the two accused missing from their houses.
The first accused surrendered to the police on 17-12-1951. The second accused also surrendered to the police on 16-12-1951. A charge-sheet was laid against the accused for an offence under S. 302, I. P. C.
3. The prosecution examined 14 witnesses in this case. P. Ws. 2 to 6 are eye-witnesses. P. W. 7 is the widow of the deceased. She spoke to the fact that when the deceased was brought to his house, he told her that he was beaten by the accused for his failure to pay the money. He did not say how he was beaten by the accused. She gave him fomentation. The next morning he was taken to the hospital as he was suffering from pain.
4. There is evidence that accused 1 and P. . W. 12 produced five persons including P. Ws. 4 5 before the village munsif Vadugam at about 6-30 p.m., on the day of the occurrence in connection with a case of dlicit removal of fuel by them. The village munsif admitted the receipt of the fuel loads from the above persons in Ex. P. 6. On the strength of tins, it was contended in the lower court that P. Ws. 4 and 5 have a grudge against the accused and their evidence ought not to be accepted against accused.
It was also urged in the lower court that if this was true, namely, accused 1 and P. W. 12 produced the 5 persons including P. Ws. 4 and 5, before the village munsif of Vadugam at about 6-30 p.m. on tile same day of occurrence, it was unlikely that the occurrence would have taken place as alleged by the prosecution. This is what the learned. Magistrate observes in his judgment:
'The occurrence is stated to be at about 4 to 5 p. m. If the occurrence were true, I cannot see how accused 1 could have produced the five persons mentioned in Ex. P. 6 at 6-30 p.m. before P. W. 10 at Vadugam about 3/4 miles away. The five persons could not have been kept ready for production before P. W. 10. It must certainly have taken considerable time.'
The prosecution story with regard to this is that the five persons were produced before the village munsif on 14-12-1951, but accused 1 had arranged to have it recorded as on 13-12-1951 with a view to improbabilise the occurrence. The learned Magistrate was finite justified in rejecting the theory of the prosecution that they wore brought on 14-12-1951. The records produced clearly snow that they had been, produced before the village munsif, P. W. 10, at G-30 p.m. on 13-12-1951. But this does not in any way militate against the truth of the prosecution case against the accused.
According to the evidence of P. Ws. 2 and 3, they were returning from Podamalai at about 3 p. m. which is about a mile from the palmyra tope where the deceased was beaten. The occurrence would not have taken more than a few minutes. The accused after beating the deceased left him there and went away. The five persons were produced by the first accused before the village munsif at 6-30 p. m. more than 1 1/2 hours after the occurrence. It is just possible that these five persons who were coming with head loads of fuel were met by the first accused after the occurrence and he might have produced them before the village munsif at 6-30 p.m. on the same day.
There is nothing impossible or improbable in this. The view of the Magistrate, that because P. Ws. 4 and 5 and others were produced before the village munsif at 6-30 p.m., the heating of the deceased by the accused between 4 and 5 p. m. could not have taken place is not justified.
5. As regards the learned Magistrate's criticism of P. Ws. 4 and 5 there seems to be some justification because they were taken to the village munsif and their head loads of fuel were removed and naturally they would entertain a grudge against accused. So their evidence may not be disinterested evidence. But nothing has been suggested against P. Ws. 2 and 3 for their deposing falsely against the accused. Major portion of the Magistrate's criticism of the evidence is directed against P. Ws. 4 and 5. So far as P. W. 2 is concerned, what the learned Magistrate says is that he is the son of the paternal uncle of the deceased.
The fact, that P. W. 2 is related to the deceased, is hot a ground for rejecting evidence against the accused unless motive on the part of the witness to depose falsely against the accused is shown. The learned Magistrate makes a reference to the non-mention of P. Ws. 2 and 3 in Ex. P. 8, the dying declaration of the 'deceased, and their mention in Ex. P. 9, the statement of the deceased to the police.
The learned magistrate says that the mention of P. Ws, 2 and 3 in Ex. P. 9, without mentioning in Ex. P. 8 is the first step towards the improvement in the case, and adds that the introduction of P. Ws. 4 to 6 in the evidence is the second process. The learned Magistrate has overlooked the serious condition in which the deceased was when he gave the dying declaration. The condition was sufficiently serious (as proved by his death at 2-15 p. m.) that he could not be expected to remember everything and mentioned the same in the dying declaration. He must have been in great agony and suffering. In fact the Medical Officer finding his condition very serious, had sent for a Magistrate to record his dying declaration. Therefore, the omission of P. Ws. 2 and 3 in Ex. P. 8 does not in any way discredit the testimony against the accused. The learned Magistrate does not appear to have given due weight to Ex. P. 8 and Ex. P. 9 where the deceased has consistently implicated the two accused as his assailants. There is no sufficient reason for the deceased to implicate the two accused falsely in Ex. P. 8 or Ex. P. 9.
6. The learned Magistrate says that it was suggested by the defence that the deceased had sustained those injuries during a drunken brawl and that the accused had been falsely accused of causing the injuries. I find no suggestion of this kind of any witness. The learned Magistrate should have rejected the suggestion made by the learned advocate for the defence, as he had not chosen to put that suggestion to the eye-witnesses in their cross-examination. In the absence of such a suggestion to the eye-witnesses, it does not deserve any consideration by the court.
7. The learned Magistrate relies on the medical evidence to show that the deceased could not have walked after the occurrence. About this he observes in his judgment as follows:
'It is inconceivable that the deceased could have walked from the scene of occurrence to his village Vadugam a distance of 3/4 miles. The medical evidence completely falsified the account of P. Ws. 2 to 5 that the deceased who had sustained the injuries at Panaukadu near Ayyampalayam, had walked home'.
The learned Magistrate does not appear to have read carefully the evidence on this point. P. W. 2 deposes with regard to this as follows:
'We led him to Gounder's field supporting him on our shoulders. I went away to bring a cot to carry him. In the meanwhile the others brought the deceased to our village by supporting him on their shoulders.'
Even in cross-examination, he states as follows:
'We led the deceased walking'.
P. W. 3 in his evidence states as follows:
'We all took the deceased to our village supporting him on our shoulders.'
In the cross-examination this is what P. W. 3 states:
'We brought the deceased walking all the distance; we merely supported him on our shoulders.'
From the above evidence it is clear that by walking it means that the deceased did not go to his village walking alone. The witnesses supported the deceased on their shoulders. The Medical Officer does not say that this is impossible. The learned Magistrate thinks that the deceased; after receiving the injuries; walked straight to his house without any support whatever. It appears to me that the learned Magistrate has misread this portion of the evidence with a view to acquit the accused.
8. The learned Public Prosecutor has placedstrong reliance on Ex. P.8 and P.9, the two dying declarations of the deceased and on the evidence ofP. Ws. 2 and 3 against whom it is urged there isno reason shown for giving false evidence againstthe accused. Ex. P. 8 and P. 9 are corroborated bythe evidence of P. Ws. 2 and 3 and as contended bythe Public Prosecutor there is no reason, for disbelieving P. Ws. 2 and 3.
Their evidence and the dying declarations show that both the accused are responsible for causing the injuries to the deceased. The medical evidence shows that the 6th, 7th, 8th and 9th ribs were fractured. There was indiscriminate heating by both the accused and therefore both must be held guilty under Section 325 read with Section 34 I. P. C. I therefore find both the accused guilty under Section 325, I. P. C.
9. As regards the sentence, the question is what sentence this court can give in an appeal against acquittal. Under Section 423(1)(a) Crl. P. C. the court hearing the appeal may find the accused guilty aud 'pass sentence according to law'. What is meant by 'passing sentence according to law?' Does it mean any sentence within the sentence prescribed for the offence or is it restricted by the power of the trial court? In my opinion, the words 'pass sentence according to law' mean any sentence that could be Riven, for the offence.
In -- 'Muthiah Chetti. v. Emperor', 29 Mad 190(A), interpreting Section 106(3) Crl. P. C., it has been held that power given to an appellate court to make an order order this section, i.e., Section 106(3) Crl. P. C. is not an unlimited power to make such an order in, any circumstances, but is to be taken as giving the appellate court power to do only that which the lower court could and should have done, and therefore that the power of the court to pass such an order is confined to cases where the conviction has been by a court named in the section and in the circumstances required by the section. In this case, the words 'sentence according to law' mentioned in Section 423(1)(a) have not come up for consideration. But the scope of Section 106(3) is quite as wide as Section 423(1)(a) and the analogy may perhaps hold good.
The above observations were approved and 'followed in -- 'Maung E. Maung v. King', AIR 1940 Hang 118 (B). The facts in the Rangoon case are these: A first Class Magistrate convicted the accused on two charges of cheating and sentenced him to two years rigorous imprisonment on the first charge and to one year on the second charge, the sentences to run concurrently. In appeal the Sessions Judge held that the obtaining of the two sums forms part of the same transaction and that a single charge must have been framed.
The sentence was therefore altered to one of. six months rigorous imprisonment, and a fine of Rs. 3000 in default three months rigorous imprisonment. In revision the High Court of Rangoon reduced the fine to Rs. 1000 holding that the power given to the appellate court under Section 423 is not an unlimited power but is to be taken as giving the appellate court to do only that which the lower court could aud should have done. This again does not touch the point in question,
10. In the above case Section 423(1)(b), Cr. P. C. has come in for consideration and not (1)(a). The powers of an appellate court in an appeal against a conviction were considered and they are certainly different in their scope from those of an appelkte. court in an appeal against acquittal.
11. The case in -- 'In re Ponnuswami Servai : AIR1938Mad315 is also a case of an appealagainst conviction. It is of no assistance to the caseunder consideration.
12. In -- 'Emperor v. Abasalli AIR 1935 Nag 139 (D) the High Court was dealing with an appeal against acquittal. The accused was convicted by the First Class Magistrate and sentenced to one year imprisonment and a fine, but the Sessions Judge on appeal acquitted him. The High Court in set-ting aside the acquittal and convicting the accused has observed as follows:
'Under the provisions of Section 423, Crl. P. C. I am now empowered to pass a new sentence with-in the powers of the Magistrate who tried the case.'
The Nagpur case is the only case which touches-this point, but there is no discussion. The full import of the words 'pass sentence according to law' has not been considered. There is no need to read into the section something which the words in their literal meaning do not imply. As I have said already, in my view, the power of an appellate Court in hearing the appeal against acquittal is riot in any way restricted or limited to the powers of the trial court.
Though there is no such limitation or restriction, still there is one circumstance which altogether cannot be ignored and which must indeed be considered before imposing the sentence and that is, what is it that the accused would have got if he was convicted by the Magistrate. He would not have, got more than six months, the maximum the Second Class Magistrate who tried him can give.
The fact that he has been acquitted shouldnot place him in a more disadvantageous positionthan if he were convicted. The sentence should nottherefore be more severe than what he would havegot in a case of conviction. In this view I would refrainfrom passing any sentence other than what the lowercourt is competent to give. I would therefore sentence both the accused each to six months rigorousimprisonment for the offence under Section 325 readwith Section 34, I. P. C.