1. Six persons were charged before the Sessions Judge of Kurnool of rioting armed with deadly weapons, of murder, either because they killed a man themselves, or constructively by virtue of Section 149, Indian Penal Code, and of offences punishable under Section 323, Indian Penal Code. All the accused were acquitted of all the charges, with the solitary exception that the appellant, who was the fourth accused in the Sessions Court, was found guilty under Section 326 of causing the fatal injury on the deceased person. He was sentenced to three years' rigorous imprisonment.
2. A number of persons of the prosecution party and the accused gathered to fight against one another and both parties sustained casualties. P. Ws. 3 to 6, the principal members of the party of the deceased asserted that the accused were entirely the aggressors. P. Ws. 7 to 9 belonged to neither party and appeared casually at the scene. Their account of what happened differed considerably from that of P. Ws. 3 to 6, in that they deposed that the first accused passed by the house of P. W. 3 and said to him, ' Last evening you challenged me to go past your house for water. Now I have come,' thus inviting P. W. 3 to attempt to try to prevent him from taking water. Not unnaturally P. W. 3 accepted the challenge. He was joined by P. Ws. 4 to 6, and the first accused was joined by accused 2 to 6. After an exchange of strong abuse, the deceased man stooped down to pick a stone, whereupon the fourth accused threw a stone at the head of the deceased and caused fatal injuries. The second accused then struck the deceased on the right arm with a stick which caused the deceased man to fall down. The other accused thereafter began to throw stones on the prosecution party and eventually succeeded in driving them from the field of battle.
3. The learned Sessions Judge disbelieved the evidence of P. Ws. 3-6 and based his conviction of the fourth accused exclusively on the evidence of P. Ws. 7 to 9. P. Ws. 7 to 9 are not perfect witnesses. Their evidence can be criticised; but I agree with the learned Sessions Judge that the value of their evidence lies in the moderation with which it is given. They did not attempt to support the whole of the prosecution story. They give an account of the affair which throws the blame fairly equally on the two sides; and the fact that they agree with one another, affords very strong corroboration of their story, in that there is no reason why any one of these three witnesses should desire to support the other two. The learned Sessions Judge also thinks their evidence agrees with the story given by the accused 1 to 4 themselves, though naturally these accused are not willing to throw any responsibility upon themselves. The learned Sessions Judge therefore came to the not unreasonable conclusion that the party of the accused and the party of P. Ws. 3 to 6 and the deceased indulged in a spontaneous fight in which each person was responsible for the injuries that he caused.
4. The judgment of the learned Sessions Judge has been attacked primarily because of his finding that the prosecution story that the fifth and sixth accused had participated in the attack on the deceased and P. Ws. 3 to 6 had been proved to be false. It was therefore argued that if P. Ws. 7 to 9 had falsely implicated the fifth and the sixth accused, their evidence ought to be viewed with so much suspicion that it could not be accepted. I do not however feel the same certainty as the learned Sessions Judge that the fifth and sixth accused were not present. The learned Sessions Judge gives no reason at all for finding that the fifth accused was not present, except that he says,
it is significant that P. W. 10 who has been given up by the prosecution as hostile has been stating from the very beginning that accused 5 and 6 were not present and that all P. Ws. 7 and 9 allege is that they were present in the crowd which gathered after the occurrence had started.
I do not see why the evidence of P. W. 10 on this point is significant or why the evidence of P. Ws. 7 to 9 that the fifth accused was present should not be believed merely because P. W. 10 did not see him there, especially when the learned Sessions Judge presumably- considered that the Public Prosecutor was justified in treating P. W. 10 as hostile. There is more reason for doubting whether the sixth accused was present, in that his denial has the support of the local doctor, who says that the sixth accused was not able to move about on the day of offence because he had a fractured rib and high fever. I see no reason to doubt that it is true that the doctor was treating the sixth accused privately between the 23rd April and 7th May, the day on which the offence took place; but all we find in the register is that on the 23rd he had injuries and that he attended the dispensary every day between that day and the 7th May except on two days. The entries in the register for the subsequent days do not indicate the nature of the treatment or the state of the patient. Even if one is prepared to accept the general evidence of the doctor, I think he goes too far in saying that he remembers that this accused came to his dispensary between 10 and 11 A.M. on the day of occurrence, just at the time that this offence is said to have taken place, that he then had a high temperature and that he was then brought to him in a bandy. It is true that this evidence may entitle the sixth accused to the benefit of the doubt; but I certainly do not agree that the learned Sessions Judge was right in saying in paragraph 8 of his judgment,
it has been conclusively established that accused 5 and 6 could not have been present and that they had been falsely implicated
these facts establish beyond doubt that he the sixth accused could not have been present at the scene of occurrence at about 11 A.M.
Many of the witnesses implicate the sixth accused only in a very general way, as the learned Sessions Judge has noted with regard to P. Ws. 7 to 9. Even though the sixth accused did not throw stones he may well have been present.
5. I therefore find even less reason than the learned Sessions Judge did for disbelieving the evidence of P. Ws. 7 to 9. It is next argued that the act of the fourth accused did not amount to causing grievous hurt with a dangerous weapon. That the weapon used was a dangerous one is proved by the fact that it actually caused the death of the deceased, and there is no reason to think that there was anything peculiar about the skull of the deceased that rendered it especially liable to fracture. There were two long fissured fractures crossing one another, and so the stone thrown at the head of the deceased presumably struck him roughly at the intersection of these two fissured fractures. The nature of the injury on the head of the deceased affords corroboration to the story of P. Ws. 7 to 9 as to the circumstances under which the fourth accused threw the stone. They say that he was bending down to pick up a stone when the fourth accused threw it. The position of the injury is more or less where the stone was most likely to hit the deceased when he was so stooping down. *
6. It is finally argued that the accused was exercising the right of self-defence, in that the deceased was stooping to pick up a stone to throw at him or at some body else in his party. I agree that there was more reason for finding that the fourth accused acted in self-defence than for finding the second accused acted in self-defence; for the second accused struck his blow when the deceased had had his skull fractured and was not in a position to take any further part in the rioting. But where it is clear from the evidence that the two parties were spoiling for a fight and that each person began to pick up stones and throw at the other party, then the accused party cannot plead that because the prosecution witnesses were also intent on beating them, every blow they gave was given in self-defence. Where there is a spontaneous fight between two parties, each individual is responsible for the injuries he causes himself and for the probable consequences of the pursuit by his party of their common object. He cannot plead that because he might at any moment be struck by some member of the other party his own blows were given in self-defence. The conviction is therefore right. In view of the serious consequences of this offence, the sentence of three years' rigorous imprisonment is not excessive. The appeal is dismissed.