1. The appellant has been convicted of murder and sentenced to death by the learned Sessions Judge, North Arcot. The appellant was tried along with six other Mahomedans for offences of rioting and murder. The appellant alone was charged Under Section 148, I.P.C. for rioting armed with a deadly weapon and for murder. The other accused were charged Under Section 147. The learned Sessions Judge found that no common object had been established and therefore the charges Under Sections 147 and 148 fell to the ground. But with regard to the charge of murder the learned Sessions Judge found it proved that the appellant caused the death of an Adi-dravida named Nondi by stabbing him in the chest with a spear or some such weapon.
2. The death of Nondi was caused in the course of a riot, using the word in a popular sense, which occurred on the night of 23rd May 1937 near the Adi-dravida quarters in the village of Kottaicheri. Accused 7 was employing an old Adi-dravida woman (P.W. 4) to be in charge of his sheep and the sheep were being taken out for grazing by an Adi-dravida boy (P.W. 3). On the evening of the 23rd May, when this young shepherd brought the sheep back, one kid was missing. He was reproved by P.W. 4 and when he said that he was not responsible P.W. 4 gave him a slap on the cheek. Then the boy ran and fetched his father (P.W. 5) who came and remonstrated with P.W. 4 and there was a quarrel between them. P.W. 4 then went to the village of Sathgar where the Mahomedans live, and fetched accused 7. Up to this point, as the learned Sessions Judge observes, the Story told by the prosecution agrees with that told by the defence, but at this point the accounts diverge. According to the prosecution, accused 7 beat P.W. 5, according to P.W. 6, with a stick but, according to P.W. 5 himself, only with his hands and fists. While accused 7 was beating P.W. 5, Nondi (the deceased) is said to have run up and suggested that as it was dark the matter might be left over till the morning for discussion. Then accused 7 is said to have taken umbrage at Nondi's interference and to have beaten him with a stick and Nondi is alleged to have beaten accused 7 with the stick, snatching it from his hand. At this point accused 1 (the present appellant) is alleged to have stabbed Nondi in the chest with a spear (barji).
3. Several Adi-dravidas were examined on the side of the prosecution. P. Ws. 3 and 4 did not pretend to know anything about the stabbing of Nondi. P.W. 5 the father of P.W. 3, told the story which has already been outlined and to very much the same effect is the evidence of P. Ws. 6 to 9. The learned Sessions Judge has left out of consideration the evidence of P. Ws. 5 and 7 for reasons which he has given and which are weighty. It is urged before us that the evidence of P. Ws. 6. 8 and 9 is not any more worthy of credence than that of P. Ws. 5 and 7. We agree with the learned Counsel for the appellant that the evidence of the prosecution witnesses was of an unsatisfactory character. It was proved that all the accused excepting the 6th had injuries upon their person. Accused 7 was quite severely hurt. He had an arm broken and also had an incised wound on his forehead and three cuts on his head as well as other more trivial injuries. None of the prosecution witnesses will admit any knowledge of the manner in which these injuries came to be inflicted upon the accused. The appellant himself had a lacerated wound on the top of his head towards the right side; and a contusion on his left arm and on his right thumb. The evidence of these witnesses cannot however be wholly discredited merely because they refuse to say how the opposite party came by their injuries. That is a common feature of rioting cases. It has been brought to our notice that P. Ws. 5, 7, 8 and 9 and three others, Adi-dravidas, were accused in a counter case tried by the same learned Sessions Judge in which judgment was delivered on the same day as in the case with which we are dealing. In that case four of the Adi-dravidas were convicted of offences Under Sections 323, 324 and 325, I.P.C. and were sentenced to imprisonment ranging from two to three years.
4. The name of the appellant as the person who had inflicted the fatal wound upon Nondi was given to the village munsif (P.W. 10) by P.W. 8 at about 10-30 the same night. Ex. B is the report of the village munsif to the police in which he reports that accused 1, 2, 3, 4, 5 and 7 had quarreled with Adi-dravidas (P. Ws. 5, 7, 8 and 9 and two others) and that the appellant had stabbed Nondi in the chest with a spear and that Nondi was dead as a result thereof. The actual statement of P.W. 8 was not taken down by the village munsif in writing but he reported the substance of it after he had been to the scene of the crime and had seen the corpse. It was pointed out that P.W. 8 in his evidence before the committing Magistrate had stated that he had not given the names of the accused to the village munsif. Also before the committing Magistrate, P.W. 8 said that the appellant stabbed Nondi with a bichuva. In the Sessions Court, P.W. 8 said that he had not told the committing Magistrate that he had not given the names of the accused to the Monigar and he said that he had always described the weapon used by the appellant as a barji and not a bichuva. There seems to be no reason to doubt that in the committing Magistrate's Court he did say that he had not given the names of the accused to the village munsif. But in saying so he was clearly wrong, because he had given the names of all the accused (excepting the 6th) to the village munsif. Nobody suggests that the village munsif had any motive to prepare a false report in this case, or any reason to take sides with the Adi-dravidas against the Mahomedans.
5. The names of all these accused are recorded in Ex. E and there is not the slightest reason for disbelieving the village munsif when he says that he got the names from P.W. Section As to the description of the weapon, it is quite clear that P.W. 8 has no very definite ideas about the difference between a bichuva and a barji and a knife. In the committing Magistrate's Court after saying that accused 1 stabbed Nondi with a bichuva, he apparently went on to say that that was the barji that he referred to, and in another place he said that accused 1 was the only person with a knife. He stated that the bichuva was a span long and two fingers broad. Whether he was referring to the whole of the weapon or only to the blade is not clear. Since in his evidence he alleged that accused 1 at first struck Nondi with the handle of the weapon, holding the blade in his hand, it would seem likely that when he said the bichuva was one span long he must have been referring only to the blade. We Eire asked to discredit the evidence of P. Ws. 6, 8 and 9 because P. Ws. 6 and 8 alleged that accused 6 was there whereas accused 6 has been acquitted by the learned Sessions Judge. Now the learned Sessions Judge has acquitted accused 6 not as the result of a definite finding that he was not present, but mainly for two reasons (1) that his name was not found in Ex. E, i.e. his name was not given by P.W. 8 to the village munsif at the earliest opportunity, and (2) because P.W. 9 did not see him at the scene of the offence. We do not think that P. Ws. 6 and 8 can be discredited merely because they say that accused 6 was there and accused 6 took part. It is not impossible that accused 6 may have been there and may have taken part. He has only been acquitted because the learned Sessions Judge found the evidence against him insufficient.
6. All the assessors found the appellant guilty of the offence of murder with which he was charged, and in spite of the unsatisfactory nature of the evidence to which we have referred, we do not think that they could have come to any other conclusion. It is certain that all the accused except the 6th were there. The appellant is not a particularly prominent man amongst the Mahomedans and there is no reason suggested why he should have been singled out as the person who stabbed the deceased if it were not the truth. He has been mentioned as the actual stabber since the very first. We therefore think the learned Sessions Judge was right in agreeing with the assessors and finding the appellant guilty of murder. We cannot however agree with the learned Sessions Judge that there are no extenuating circumstances in this case. On the contrary we think that this is undoubtedly not a case for the infliction of the capital sentence. It is quite clear that this stab was dealt by the appellant in the heat of passion in a fight ensuing upon a sudden quarrel. Almost all the elements of Excep. IV to Section 300, I.P.C. appear from the prosecution evidence. It does not however appear that the appellant did not take undue advantage and did not act in a cruel or unusual manner and therefore we are unable to say that Excep. IV to Section 300, I.P. Order applies. We are however able to say that the offence having been committed in these circum. stances, the proper sentence is one of transportation for life. Further we think that this is a case in which the Local Government may well be moved to remit some portion of the sentence of transportation for life. Since the offence is one of murder, we cannot do more for the appellant than to reduce his sentence. We accordingly confirm the conviction for murder, set aside the sentence of death and substitute a sentence of transportation for life.
7. Our attention has been drawn to a judgment of Newsam J. in Sanna Basya v. Emperor (1937) M.W.N. 1196 which we think needs some comment. The learned Judge was dealing with the appeal of six persons who had been convicted of rioting and constructively of culpable homicide not amounting to murder. The learned Judge says that there was a free fight and apparently, as in the case before us, both parties had been charged and put on their trial. The learned Judge says:
The prosecution witnesses in this case were mostly accused in the other case. Their statements do not amount to evidence because they are the statements of persons who were themselves accused of the same offence in this very affray or free fight and also because they have admittedly not stated the whole truth.
8. With all respect to the learned Judge this dictum is clearly wrong. We think it was probably uttered in a hasty moment and that the learned Judge had no idea that it would be reported, as it has been in (1937) M.W.N. 1196 We think it necessary to mention this because it will be disastrous if the lower Courts proceed to act upon the principle that the statements of witnesses are not evidence merely because they happen to be the statements of persons who are accused in a counter-case.