1. The four appellants and seven others were charged in the lower Court with rioting and murder by virtue of the provisions of both Section 34 and Section 149, Penal Code. The learned Sessions Judge referred to the tendency in cases of faction for one party to implicate all the leaders of the opposite faction; and he came to the conclusion that a case had been made out against the four appellants but that he was not quite satisfied that there were any more than the four persons present. The charges of rioting and of constructive murder therefore failed: He came to the conclusion that the nature of the injuries to the deceased person were not such as to indicate beyond all doubt that those who attacked him intended to kill him. He found appellants 1 and 2 (accused 1 and 4) guilty under Section 324, Penal Code, and appellants 3 and 4 (accused 7 and 8) guilty under Section 325, Penal Code, both these convictions presumably being by virtue of Section 34, Penal Code.
2. The prosecution story, as told by P.w. 1, the wife of the deceased, and others, is to the effect that the eleven accused jumped over the wall of the thrashing floor and fell on her husband crying 'Kobali.' She then narrated the parts that the various accused played. Her husband was severely injured and he was taken to the hospital, where he died 24 hours later of the injuries that he had received at the hands of those who attacked him. The learned Sessions Judge divides the evidence into three classes: (1) the evidence of the eye-witnesses, P. ws. 1 to 3, 5 and 6; (2) the evidence of P. Ws. 7, 8 and 9 who were said to have been told by the deceased immediately after the attack of what had been done to him; and (3) the evidence of the dying statement made by the deceased to which his thumb impression had been affixed. With regard to the first class of evidence he found that p.w. 1 was probably the only eye-witness. The second class of evidence he rejected on the ground that Ex. P, the dying declaration, showed that he was unconscious until he reached the hospital, and if so, he could not have told P. Ws. 7, 8 and 9 of the offence. He accepted Ex. F as being a correct statement given by the deceased an hour or two after he was admitted into the hospital and he used Ex. P as a measure by which to test the evidence of P.w. 1. In so far as Ex. P and the deposition of P.W. 1 were in agreement, he accepted P.W. 1's story. That is why he has convicted the four appellants and acquitted all the others.
3. With regard to Ex. F, the learned Sessions Judge had to decide between the evidence of the Doctor, P.w. 4 and the Sub-Inspector, P.W. 17; for P.W. 4 stated that the deceased was unconscious throughout the period he was detained in the hospital and did not recover consciousness before his death. This, of course, cannot be completely true even according to P.W. 4's evidence; for this witness has sent a report to the police, Ex. B, on the morning after the offence to the effect that the deceased had received injuries at the hands of accused 1 and 2 and others. This he gathered from something that was said by the deceased himself; although he deposes that he could not understand what was being said by the deceased and that those who had gathered round him told him what the deceased was saying. It is clear from the evidence of P.W. 4 that he did not realize fully the serious nature of the injuries caused and that he had no suspicion that the deceased was going to die. The Sub-Inspector, is a part of his evidence that rings very true, spoke to the surprise with which he learnt of the death of the deceased; because he had met P.w. 4 at the club and had been told by him that the dislocated joints of the deceased had been set and that the man was doing well. Certain interpolations in red ink in the accident register, Ex. D, are, as the learned Sessions Judge says, not the sort of entries one would make in an accident register; and it is clear that these entries were made for the purpose of affording some sort of explanation for his apparently negligent conduct.
4. I think therefore that the learned Sessions Judge was right in holding that the deceased was not unconscious when first admitted to the hospital. That does not however mean that the deceased was in a condition to make the rather full statement found in Ex. P. He must have been in severe pain, and it is possible that he was not in a condition to make such a full report;. Moreover, the thumb impression affixed to the statement has been proved by an officer of the Finger Print Bureau not to be that of the deceased. There is therefore some ground for suspecting that Ex. F was not the statement of the deceased. A statement was however recorded as some remarks of P.w. 4 would show and Ex. P was almost certainly not fabricated for the purpose of affording evidence against the accused; for, it was not taken to any official but produced two days later at the village when the Sub-Inspector went there to investigate.
5. If She other findings of the learned Sessions Judge are correct, almost the only evidence against the appellants is the oral evidence of P.W. 1. The learned Sessions Judge was, however, impressed with the evidence of P.W. 1 and after going through her deposition one cannot but feel that she was an eye-witness and has given an approximately correct account of what she saw. She stood cross-examination very well and there was nothing that she said which in any way suggests that she was concealing or adding to the truth. The learned Sessions Judge has accepted her evidence, however, only where it agrees with Ex. P and has consequently acquitted seven of the accused.
6. As P.W. 1's evidence is almost uncorroborated, it is necessary to view it with caution. Appellant 1 is apparently the leader of his faction; but against him there is the corroborating evidence afforded by Ex. B in which the deceased gave his name to the doctor as being one of his assailants. I cannot believe that the deceased was then in a fit state to fabricate evidence. He must have given that statement soon after he recovered consciousness - if we are going to rule out the evidence of his telling the other witnesses of the attack on account of his statement that he remained unconscious until he reached the hospital. The part given to accused 7 and 8 (appellants 3 and 4 here) was probably not considered, very important by the persons of the deceased's faction, because they were said to have been holding his legs and twisting them. Though actually result of their acts probably contributed to the death of the deceased more than any other injury did, it is not likely that the members of the faction thought so, because there were no external injuries corresponding to the acts done. I can see no reason why accused 7 and 8 should have been said by P.w. 1 to have done this if in fact it was some other persons who were responsible for the twisting of the legs of the deceased. There remains accused 4 who is said to have had a battle axe and to have caused the injury on the back of the right leg from which most of the haemorrhage took place. This wound was actually not very serious; but the villagers must have been impressed by the fact that this was a gaping incised wound caused by an axe. The father of accused 4 had been engaged in a bitter and recent litigation with the deceased and it is to him that the injury that was thought the most serious was attributed. There were two dangerous weapons possessed by those who attacked the deceased and the more lethal of the two was said to have been held by accused 4. I think therefore in the absence of corroborative evidence and in view of the bitterness which must have been felt towards accused 4 and his father the evidence against this accused should be viewed with more caution than against the others and that he should be given the benefit of the doubt.
7. Mr. V.T. Rangaswami Ayyangar has pointed out that the learned Sessions Judge has departed from a salutary practice in cases of this kind and has charged the accused only for rioting and for murder by virtue of Sections 149 and 34, Penal Code. It is usual in such cases to charge the accused individually also for the acts that they are said to have committed. This draws the attention of the accused in particular to the acts which they are said to have committed. If that is not done, the accused may have cause for argument that when the main charge of rioting and acting in concert in pursuance of a common intention has failed they ought not to be convicted for the particular acts committed by them. In this particular case I do not think that there has been any miscarriage of justice on account of this omission: for the evidence that was given in the Sessions Court was also given in the Court of the committing Magistrate and so the accused knew exactly what acts they were said to have done. I am not therefore disposed to set aside the convictions on this ground; but would point out to the learned Sessions Judge the desirability of adhering to the practice current in most other Courts of charging the accused individually for the acts specifically done by them as well as jointly for the offence for which they might be liable by virtue of Sections 149 and 34, Penal Code. In the result, the conviction of accused 4 is set aside and his bail bond cancelled. The learned Sessions Judge has viewed the case against the other appellants very leniently and I find no reason to interfere with the sentences imposed on these three appellants or to doubt the correctness of their convictions. The convictions and sentences on these three appellants are therefore affirmed and their appeal dismissed.