1. The appellants and another were charged before the Sessions Judge of Nellore with the murder of one Guruswami. The learned Sessions Judge found that there was no evidence that accused B-took any part in the transaction in which the murder was committed. He, therefore, acquitted that accused. He convicted the two appellants of murder and sentenced them to death.
2. The deceased, the three accused, and the eye-witnesses are all Thottiyans and members of connected families. P.W. 3 is the husband of P.W. 6 and P. Ws. 4 and 5 are their daughters. The deceased was married to P.W. 5 and a brother of the two appellants was married to P.W. 4. P.W. 7 and the deceased were the sons of sisters, while P.W. 8 was a brother of the deceased. The quarrel that led up to this murder arose out of a dispute with regard to some ragi. P.W. 4 had a sick child and she wanted to purchase a talisman that it might wear to recover its health; and in order to raise the money, she took some of the family ragi. She was rebuked for this by the wife of accused 3, who was the senior female in the family. P.W. 3 came along while the quarrel was taking place and rebuked the women for quarrelling. P.W. 3 later came to blows with accused 3 and was knocked down. That led to further recrimination among the women, who then created such a disturbance that the two appellants, who were working in a field about a furlong away came running to the spot to see what had been done to their women. Even after they arrived, the quarrel continued; and the appellants became more angry as they heard and saw what was taking place. Accused 2 first expressed his annoyance by striking a stone with his pitch-fork. That had no effect and after some little time he became so annoyed that he took his pitch-fork and struck the deceased on the head with it. Accused 1 almost immediately raised a heavy stick taken from the side of a cart, and struck the deceased on the head. The deceased fell down immediately and died on the following day. When examined by the doctor, the deceased was found to have an extensive and radiating fracture of the skull forming a diamond-shaped depressed fracture, the sides of the diamond being about two inches. The piece that had been displaced was broken into eight smaller pieces, which had been driven into the brain substance. There was no possibility of recovery from this grave injury.
3. Although all the eye-witnesses are persons connected with the deceased, they are also interested in the accused; and there is no reason to suppose that their evidence was not true. A complaint was given as early as practicable; and at all stages their evidence has been consistent. The truth of the material part of their story is confirmed by the circumstance that the accused were long absconding. There are no important contradictions in their evidence; and the learned Judge says that they impressed him while in the box as persons speaking the truth. The learned advocate for the appellants very rightly does not contend that the evidence of-these witnesses is untrustworthy. He has argued that from the medical evidence it would appear that the deceased received only one blow; but that is not the case. P.W. 1, the doctor who conducted the postmortem examination, does say that the injuries could have been caused by one heavy blow; but he does not say that they could not have been caused by two blows, as the eye-witnesses say. On the contrary, he says that the injuries might have been caused by two blows. It would also seem probable that there were two blows; because the contused area on the head was most extensive. It spread from the seat of fracture across the frontal bone to the other side of the head.
4. If the appellants were jointly responsible for the injuries caused, then they were undoubtedly guilty of murder. The learned Sessions Judge does not discuss whether they were actuated by common intention; but his judgment seems to proceed on that basis. It seems difficult, however, to come to the conclusion that there was a common intention to kill the deceased. The appellants suddenly left their field to see the cause of the cries and shouts of the persons who were quarrelling. They did not immediately attack anybody. In fact, they might, not have known who was responsible for the cries of their womenfolk. Accused 2, as has already been said, signified his disapproval by striking his pitch-fork on a stone, and it was only after they had been sometime at the scene of offence, that they became angry and struck the deceased. Since accused 2 struck first, accused 1 may well have intended to cause the death of the deceased, because he saw what accused 2 had done; but accused 2, as far as we can see from the evidence, had no reason to suppose that accused 1 would follow his example and strike the deceased. Even, therefore, if they had the same intention, they did not have a common intention, the distinction between a like intention and a common intention being pointed out very forcibly in Mahabub Shah v. Emperor . If the two appellants were not actuated by a common intention, then each is responsible only for his own acts. Accused 2 was armed with a pitchfork which has a diameter of about an inch and a half at its thick end. We have no doubt that such a weapon, if used with considerable force, would be sufficient to cause a fracture; but the question which we are unable to decide is whether, in fact, it did so. One often comes across cases where a lethal weapon is used under circumstances which indicate that the person using it intended to cause death or grievous hurt; but either because the assail-ant was not suitably placed for delivering a heavy blow or because of the movements of the person at whom he was aiming, only trivial injuries have been inflicted. It may, therefore, well be that although the accused may have intended to cause grievous injury with his weapon, he may not in fact have done so. This doubt is strengthened by the medical evidence that the whole injury might have been caused by one blow. It is, therefore, possible, though perhaps not probable, that the serious injury to the head was caused almost entirely by the second blow and that the first blow might not by itself have had fatal consequences. If that is so, accused 2, who struck the first blow with the lighter instrument, can be found guilty only of causing simple hurt with a dangerous weapon, an offence punishable under Section 324, Penal Code.
5. The case against accused 1 seems to us to stand on a very different looting. He saw that accused 2 had struck the deceased on the head with his stick, and yet he immediately raised a heavy weapon and struck a blow which felled the deceased to the ground. If accused 2 did not cause a fracture of the skull or caused a fracture less serious than that found on post-mortem examination, then the act of accused 1 would clearly amount to murder; because he was either almost entirely responsible for the death of the deceased or materially contributed to it. Even if the fracture was caused entirely by accused 2, accused 1 would still be guilty of murder; because his blow, delivered immediately after the blow of accused 2, must necessarily have accelerated the death of the deceased. It, therefore, seems to us that accused 1 must have been guilty of the offence with which he was charged. The learned advocate for the appellants relies on certain observations of the learned Sessions Judge to indicate that it is unlikely that the appellants had the intention necessary for a conviction under Section 302, Penal Code. The learned Sessions Judge said:
The seriousness of the blows was not known either to the accused or to the other party at that stage, because the evidence shows that when the accused were leaving the place accused 3 gave a parting kick to the fallen Guruswami, stating that. he was shamming. The relatives of Guruswami had run home and fetched dry ginger powder and cotton in order to render first aid and bring Guruswami back to consciousness. The accused went and stood near their house for a time and as a crowd started to gather they went inside their house.
6. At the best this, would only indicate that accused 3, who has been acquitted, and the relatives of Guruswami still believed that there was a chance of Guruswami's recovering; but we must assume that the two appellants, who delivered the blows, intended the probable consequences of their acts. They alone knew the force with which their blows were delivered. The conviction of accused 1 under Section 302, Penal Code, is, therefore, confirmed and the conviction of accused 2 changed from one under Section 302 to one under Section 824, Penal Code. There remains the question of the sentence to be imposed on accused 1. The learned Sessions Judge said on this point:
So far as the punishment is concerned, there are no extenuating circumstances in law to merit the lesser of the two sentences prescribed. The accused on account of momentary passion have killed a middle-aged ryot who was the bread-winner of his family. The fact that they are middle-aged ryots or that they were living amicably before with the deceased and that the offence itself arose from an unexpected altercation that evening and that the offence has not been accompanied by aggravating features are all matters, which cannot be considered by Court as extenuating circumstances for awarding the lesser of the two sentences. They are fit matters to be considered when the prerogative of mercy comes to be exercised and which is in other hands.
7. We cannot agree with this' exposition of the law. If a Court has two alternative sentences, it should take into consideration all the circumstances of the case and award the sentence which seems to it, in view of those circumstances, the more fitting. The learned Judge has himself in the passage set out above given reasons why it would be more appropriate to sentence the appellants to transportation for life, and there is very little to add to what the learned Sessions Judge has said. The evidence shows that the murder was unpremeditated and that the act was committed in sudden anger. The sentence of death is therefore changed to one of 'transportation for life.' Appellant 2 is sentenced to three years' rigorous, imprisonment.