1. The three accused in this case have been convicted for the murder of one Rathnasami on the evening of 21st December last. The prosecution case is that they all attacked him, accused 1 cutting him with an aruval on various parts of the body, and the other two accused attacking him with sticks, in the course of a concerted assault. They are, therefore, all guilty of murder under the provisions of Section 302 read with Section 34, Penal Code. The deceased did not die until 12th January 1943. The cause of his death was septicaemia and that septicaemia was the direct result of some at least of the injuries. There can be no doubt, therefore, that death was brought about by the injuries which the deceased received.
2. The first question which arises is whether the appellants were actually guilty of causing any injuries. On this point, the learned Sessions Judge has rejected the evidence of the eye-witnesses, P. W's 1, 3 and 7 even though he is satisfied that P.W. 1 must have been present at the spot, because he himself was attacked and received injuries, on the ground that there are important discrepancies between their depositions. The Judge has, however, accepted the statements made by the injured man himself shortly after the injuries were caused. There are three such statements. One was made as the first information in the case to the village Munsif at a very early hour after the injury had been caused (Ex. F), another was made to a neighbouring village Munsif (Ex. H-l) on the same night and the third was made to the Civil Assistant Surgeon in the Local Fund Hospital at Shiyali about 6 o'clock the next morning. In all these statements the deceased has explained the reasons for the attack upon him, which were that he suspected accused 1 of stealing some of his property and had questioned him about it; and they state specifically that accused 1 had caused him injuries with an aruval and. accused 2 and 3 had attacked him with sticks. There seems to be no reason at all why these dying declarations should be discredited. No suggestion has been made at any stage of the ease to explain why the deceased, who was undoubtedly severely injured and in all probability must have known who his assailants were, should have substituted the names of the accused for those of the real offenders; and in the arguments before us, the learned Counsel, who has appeared for the appellants, has not seriously contested the strength and significance of these dying declarations. There can, therefore, we think, be no doubt that it was the appellants who were responsible for the injuries caused.
3. The next question is whether they are, on that account, guilty of murder. In the case of accused l we have little doubt that he has been rightly found guilty of murder. It is he who has caused the majority of the ten injuries which were catalogued in Ex. B on the morning after the assault. All but two of these are likely to have been caused, according to the medical evidence, by an aruval. One of them, the third injury in Ex. B, is an injury of very great severity, being a cut five inches long, three and a half inches broad and three inches deep with fracture of all the bones on the shoulder. In the opinion of P.W. 5, the doctor who attended the deceased, this injury alone was sufficient in the ordinary course of nature to cause' death, and when taken in conjunction with the other in-juries caused, death was all the more certain. P.W. 6 the doctor who gave the post-mortem certificate, was asked by the Court whether injury No. 3 was sufficient in the ordinary course of nature to cause death. His answer was
Compound fracture may or may not cause death. It depends upon the vitality, the efficient treatment and complication such as sepsis.
4. The learned Sessions Judge in para. 10 of his judgment accepts the evidence of P.W. 5 and says that it has not been rebutted by this answer given by P.W. 6. We agree with that appreciation of the evidence, P.W. 6's answer is far too general to be regarded as contradicting what P.W. 5 has said. We are not prepared to assent to any argument that an injury sufficient in the ordinary course of nature to cause death is an injury, which inevitably and in all circumstances must cause death. If the probability of death is very great, then it seems to us the requirements of thirdly under Section 300 are satisfied, and the fact that a particular individual may by the fortunate accident of his having secured specially skilled treatment or being in possession of a particularly strong constitution have survived an injury which would prove fatal to the majority of persons subjected to it, is not enough to prove that such an injury is not sufficient 'in the ordinary course of nature' to cause death. Particularly in view of the fact that injury No. 3 was not the only injury caused by accused 1, we are of opinion that the cumulative effect of all the injuries, which he alone caused to the deceased, was such that 'in the ordinary course of nature' the deceased was almost bound to die. In these circumstances, the conviction of appellant 1 for murder is amply justified and his conviction and sentence must be confirmed.
5. In the case of appellants 2 and 3, we are not satisfied that any common intention to murder the deceased has been made out on the evidence. This part of the case does not appear to have been discussed by the learned Sessions Judge, except in so far as to hold that they were all interested in causing some kind of injury to the deceased. In para. 21 of his judgment, he says that all the appellants 'made common cause to punish the deceased and P. W's 1 and 2.' There is nothing in the case to suggest that any of the three appellants had deliberately formed the intention of causing the death of the deceased. The cause of the original quarrel between them was not such as would normally be likely to lead to so calamitious a result. The actual injuries, which alone can have been caused by appellants 2 and 3 were only two in number-two contusions on the head which are injuries Nos. 1 and 2 in Ex. B. These contusions did not involve the fracture of any of the bones of the skull and although they are not small, there is nothing to show that they were caused by a blow aimed with a weapon which can be called deadly or with any unduly violent force. No doubt, appellants 2 and 3 were aware of the fact that appellant 1 was attacking the deceased with an aruval, but there is nothing to show that they had taken any part in providing him with that weapon. We are of opinion, on the contrary, that unless the evidence of P.W. 3 is accepted, there is no sufficient material for holding it proved beyond reasonable doubt that accused 2 and 3 shared in the intention of accused 1 to cause such injuries with the aruval as would result in death. P.W. 3 states that while accused 1 cut the deceased, accused 2 and 3 were holding him. If that evidence is true, it appears likely that they held him deliberately in order to facilitate the attack by accused 1, but as already stated, the learned Judge was not prepared to accept the direct evidence; and when he finally finds all the three accused guilty under the provisions of Section 34, he makes no specific reference to it. We accordingly find that the only offence of which accused 2 and 3 can be convicted is one under Section 323, Penal Code, and, in view of the fact that they have, already served four months of the sentence of transportation imposed upon them, and must have been in custody serveral months before that, we reduce the sentence to the period of imprisonment already undergone and direct that appellants 2 and 3 be immediately released.