1. The seven appellants have been convicted under Sections 147 and 325, Indian Penal Code, and sentenced. Appellants Nos. 1 and 2 to 2 and 3 years' rigorous imprisonment concurrent, and appellants Nos. 3 to 7 to 18 months and 18 months, concurrent. Appellants Nos. 2, 3, 4 have been called upon to show cause why their sentences should not be enhanced.
2. The main circumstance of this case is not seriously traversed. One Rajapandia Naick was beaten to death on the night of 19th May, 1929. The question raised on appeal is, which, if any, of the appellants took part in the crime. The death is said to have occurred at about 8 P. M. and by 11 p.m. The karnam P. W. No. 4 had the names of all the accused, and entered them in his report Ex. B. It has also been elicited on behalf of the accused that the eye-witness P.W. No. 1 mentioned all of the accused in detail when the Sub-Inspector investigated under Section 174, Criminal Procedure Code, on 20th May. On 24th May the Sub-Magistrate took statements under Section 164 when this witness named accused No. 1 as the instigator, and accused No. 2 as the man who first struck, adding 'His men also beat him.' It is now argued that on that date the witness only knew of accused Nos. 1 and 2, and the rest have been subsequently implicated. But having regard to the report Ex. B and what was elicited about the inquest, it is more natural to suppose that the witness meant the other accused and did not name them because he was not asked to name them. He is corroborated by two other eye-witnesses P.W. Nos. 3 and 5. The first of these P.W. No. 3 is certain that he gave all then names to the Magistrate, though in his statement also only accused Nos. 1 and 2 are named. As the names were already out and on record and in the light of the evidence of P. W. No. 1 the point is not of very much importance, especially when the last eye witness P. W. No. 5 on the very same day, named all the accused except the sixth.
3. However, the proceeding of prime importance is the trial, the learned Judge observes that the witnesses were unshaken by cross-examination and gave him the impression that they were speaking the truth. I see no reason to differ.
4. Apart from their general credibility, I do not consider that anything turns on the fact that the witnesses may not have given a photographically correct account of the exact details. For some reason best known to himself an Indian villager never says 'there was general kicking and beating' but works out an analysis of fists and feet and right sides and left sides, which is easily shown to be ridiculous, but which does not necessarily prove him to be telling lies; it is merely his habit of thought and speech. The medical evidence may hot reveal a mark for every blow, but that is not important
5. The defence is concerned with proving that the village is factious, which is probably true, and cuts both ways. There may be other causes of quarrel, but I see no reason not to hold that the immediate cause was that alleged, and, that the accused had the common object of causing injury to the deceased. As regards the sentence it is always difficult to assess the penalty when a man dies after being beaten or kicked. In my own opinion as soon as it is found that the offence does not amount to culpable homicide, it is beat to leave the death entirely out of account, and look only to the injury. These accused gave the man, what they intended, a severe beating. They broke no bones, and death supervened owing to some internal trouble for which, no doubt, they are responsible; but which they did not foresee, and which, judging from his evidence, seems to have baffled the doctor. In the circumstances I am not prepared to say that three years it grossly lenient. A large discretion must be left to the trial Judge who has seen the accused and knows the effect which imprisonment is likely to have upon them individually, and who also knows the criminality of his district and what deterrence is necessary.
6. The appeal and petition are both dismissed.