1. The eleven appellants have been sentenced to death by the Sessions Judge of Rajahmundry for having committed the murder of six persons by stabbing them to death on 21st May 1940. They have also all been convicted of rioting and sentenced to one year's rigorous imprisonment under Section 148, Penal Code. Appellants 3,6,10 and 11 were further found guilty under Section 324, Penal Code, of causing hurt to P.W. 5 with dangerous weapons and sentenced each to six months rigorous imprisonment. The fight between the appellants on the one hand and the deceased persons on the other, arose out of a dispute with regard to the cultivation of a plot of land named Malayya Pampu, which belongs to P.W. 14 and his brother. It seems fairly clear from the evidence of P.Ws. 14, 13 and 5 that accused 2 and 7 had been the tenants of P.W. 14 for many years and that for most of this time they had paid no rent. P.W. 14, unable to collect any rent, adopted the plan, not at all uncommon, of trying to get rid of his tenants by leasing the Land to another tenant and leaving him to do the best he could to evict the recalcitrant tenants. The person upon whom the burden fell was the first deceased; and P.W. 14 states that about 8 or 9 days before the offence, he leased the land orally to the first deceased. In his dying declaration the first deceased says that the lease was two days before the offence. However that may be, 21st May was selected as an auspicious day for ploughing this land; and P.Ws. 5 and 13 say that on the previous day the first deceased irrigated the land. The intentions of the first deceased could not be kept secret; and, on the morning of the 21st, when the first deceased took his young son P.W. 13 to Malayya Pampu to plough the land, he found accused 2 and 7 already there ploughing. These two accused were prepared for all eventualities and the other accused were sitting on the bund of that land. Accused 1, 3 to 6 and 8 are brothers of accused 2 and 7. Accused 10 and 11 are the first cousins of accused 1 to 8 and accused 9 is the brother-in-law of accused 3.
2. The first deceased told accused 2 and 7 that he had obtained a lease of the land from P.W. 14 and asked them to desist from ploughing and to leave the land to him. Accused 2 and 7 refused to do so and said that they had been in possession of this land for a very long time and that they had no intention of giving it up. The first deceased then said, 'Don't let us quarrel about this matter. Let us consult P.W. 14.' He however realized the futility of appealing to P.W. 14 and went to fetch some of his relatives, who are the other five deceased persons. All the six persons returned to the land together. After some further altercation, four of these deceased persons began to unyoke the ploughs of accused 2 and 7. Accused 1 thereupon jumped down from the bund, rushed at the deceased's party and immediately stabbed the first and second deceased. A general fight then ensued during the course of which accused 3 stabbed the third and fifth deceased, accused 8 stabbed the fourth deceased and accused 2 stabbed the sixth deceased. The other accused were armed with stout sticks and they caused a number of stick injuries to the deceased persons. Even after some of the injured men had fallen to the ground, the various accused beat them with sticks. At this juncture, P.W. 5 intervened and received a number of stick injuries. Accused 3 threw his knife at him and it just grazed his finger. Fearing that he too would share the fate of the other six men who had already been fatally stabbed, he ran away.
3. What strikes one most forcibly about this story is its reasonableness. P.Ws. 5 and 13 do not say that they were peaceably ploughing the land when they were suddenly attacked by a number of armed men. They admit that the accused persons were already ploughing the land. They admit that the first deceased went away and returned with men armed with sticks, clearly with the intention of enforcing their supposed right. They further admit that it was only after some of the deceased persons had tried to unyoke the bulls of accused 2 and 7 that they wore attacked and the fight began. Although P.W. 5 apparently made no attempt to report the matter either to the village munsif, who was a brother of the first deceased, or to any of the police officers, he was examined early the following morning at the inquest, again by the Circle Inspector on the 23rd; and a day after that again ho gave a statement to the Magistrate under Section 164, Criminal P.C. P.W.5's evidence is consistent, except that he did not say in his statement under Section 164, that after the deceased persons had fallen to the ground, they were further beaten with sticks. There also seems to be some suggestion here and there that there was some fighting with sticks before the fatal stabbing took place. P.W. 13, a boy of 12 years of age, speaks only to the beginning of the quarrel; for the bulls which the deceased had brought for the purpose of ploughing the land had wandered far from the field and this little boy went after them. P.W. 5 is therefore the only eyewitness of the main incidents of the fight (After discussing the evidence, his Lordship proceeded). There were therefore undoubtedly a very large number of injuries on the persons of the deceased caused by sharpedged weapons and it is clear that several persons in the accused party must have been armed with knives or daggers. The evidence of P.W. 5 which has stood the test of cross-examination well and seems consistent and which is corroborated to a considerable extent by the dying declarations, can therefore be safely accepted, especially with regard to the stabbing.
4. During the course of examination of P.W. 5, he was questioned with regard to the statements made by him to the Circle Inspector; and it may be pointed out in passing that the learned Sessions Judge has made improper use of these statements. Where the defence seek to show that a witness has made a statement in Court which is contrary to what he had told a police officer, the proper way of contradicting him is to ask the police officer whether that was so and to permit if necessary the filing of such portions of the record in the case diary as will support the police officer's statement. Where it is alleged that the statement made by the witness in Court was not made before the police officer, it is useless to refer to the record in the case diary at all, for what is recorded in the case diary is not intended to be a complete record of what a witness tells the police officer. It is only a resume of the statement, made by the police to facilitate their investigation. The only way to prove that the statement made in Court was not made to the police officer is to ask the police officer himself when he is in the witness-box. What the learned Sessions Judge seems to have done was to have allowed the Circle Inspector to be asked whether certain copies of the case diary were true copies of statements recorded from P.W. 5. The whole of entry in the case diary relating to the statement of P.W. 5 was thereupon filed and free use has been made of the whole of the statement, whether it was strictly relevant to the alleged contradictions or not. This was clearly an improper use of the case diary.
5. It remains to consider what offence, if any, was committed by the accused persons. It seems clear from the evidence of P.Ws. 14, 13 and 5 that accused 2 and 7 never lost possession of the field. Although P.W. 14 states that they were present when he orally leased the land to the first deceased he does not say that they acquiesced in it; still less does he say that they voluntarily quitted the land or that he in any way was able to evict them. The conduct of the accused within two days or so of this leasing of the land shows that they did not acquiesce in it and that they did not give up possession. If it was true that the first deceased irrigated the land on the day before the offence, there is no reason to suppose that he did it with the knowledge and consent of the accused. It was a fugitive act that did not disturb their possession. Moreover, even though accused 2 and 7 had not paid their rent for a considerable time, they were entitled to remain in possession; because it does not appear from the evidence of P.W. 14 that he gave them any notice to quit. On the other hand, he says that he did not. It would appear from the evidence of P.W. 14, although the evidence with regard to the nature of the lease has been left in a great deal of uncertainty, that it was an agricultural lease. Whether there was a cowle in the first instance or not, it continued as a lease from year to year after the period of such cowle was determined. If it was an agricultural lease, the lease could only be determined by giving six months notice in writing to the tenants; and, as this was admittedly not done, accused 2 and 7 were entitled to remain in possession. Even if these two accused, had no such right, the accused's party would not have constituted an unlawful assembly. An unlawful assembly is an assembly of five or more persons when, inter alia, the common object is by means of criminal force or show of criminal force to any person to take or obtain possession of any property of which he is in possession or enjoyment....
6. It would follow therefore that the six deceased persons were members of an unlawful assembly, because they sought to obtain possession forcibly from accused 2 and 7. On the other hand, the accused's party sought only to maintain possession; and an assembly of more than five persons with this common object would not come within the definition of unlawful assembly given in Section 141, Penal Code. The accused therefore cannot be convicted of any offence by virtue of Section 149, Penal Code. If they had no right of private defence of the property in the possession of accused 2 and 7, the accused would be responsible for the various acts done by them individually. If they had a right of private defence but some exceeded it, that right not only entitled accused 2 and 7 to defend the land, but also such other persons, as they might have gathered there to help them to protect their rights.
7. It has therefore to be considered what persons, if any, exceeded their right of private defence. As all the deceased persons were armed with sticks, those accused who used only sticks can hardly be said to have exceeded the right of private defence, especially as it has not been shown that any of the stick injuries were fatal or even caused grievous hurt. Mr. Jayarama Ayyar has pointed out that the accused persons did have a reasonable apprehension that death or grievous hurt might be caused to them and that therefore they were justified in doing such acts as might involve the risk of causing death to those who were seeking to enter on that land; but the progress of the fight does not suggest that those accused who used their daggers did so because they felt it necessary to use them for the protection of their persons and property. It is fairly clear that in wielding their daggers or knives and inflicting so many injuries on the deceased persons, they were actuated not by any desire to defend their persons and property but to punish those who tried to unyoke the bulls and to enter upon the land. The accused were in greater strength, even at the outset and as one by one the deceased were stabbed, the strength of the accused's party became overwhelming; and there was certainly no need to cause the injuries to the decased that they did. We are therefore satisfied that in stabbing the six persons, those accused who were responsible for this had exceeded their right of private defence. As the seriousness of the injuries shows that the persons who caused them intended to kill the deceased, they would be guilty under Section 304 (1), Penal Code.
8. Although P.W. 5's evidence is not corroborated by the dying declarations with regard to the attacks on all the deceased persons, yet we think his evidence is trustworthy. It is true that P.W. 5 does not say that he joined with the six deceased persons in attempting to enter upon the land in the possession of accused 2 and 7, yet there is reason to think that his evidence that he went there later is true; for whereas all the other six persons had fatal stab injuries and many of them had a number of incised wounds too, P.W. 5 had only a few stick injuries, with the exception of a slight scratch on the finger which, he said, was caused when accused 3 threw a dagger at him. We are confident therefore that the evidence of P.W. 5 is true and that the accused 1 to 3 and 8 are guilty under Section 304 (1), Penal Code. The accused have all been convicted under Section 302 as well as under other sections including rioting with dangerous weapons. All these convictions are set aside. Accused 4 to 7 and 9 to 11 are acquitted, while accused 1 to 3 and 8 are convicted under Section 304 (1). They are sentenced to ten years rigorous imprisonment. We think that a severe sentence is necessary in view of the brutality and extremity of the measures adopted by these accused in deliberately stabbing to death no less than six persons.
9. I agree and I have little to add except with regard to the learned Sessions Judge's discussion of the decisions of this High Court. In para. 6 of his judgment, the learned Sessions Judge has said:
The evidence of the tahsildar and the medical officer about the precautions under which the dying statements were recorded impressed me favourably and these alone, in the opinion of the Madras High Court, are sufficient to bring the acts home to accused 6 Satyanarayaharaju, accused 3Venkataraju, accused 2 Ramaraju and accused 1 Bangaruraju.
10. It is needless to say that the Madras High Court had not expressed any opinion regarding the sufficiency of the dying declaration to bring any acts home to any of the accused in this case. The learned Sessions Judge is misquoting the view of this High Court recently expressed with regard to the sufficiency of dying declarations in cases where the Court upon due consideration find the dying declarations to be true. A little later, the learned Sessions Judge has purported to quote some observations of my own in Subba Rao v. Emperor A.I.R. 1941 Mad 489. It is hardly necessary to say that, in my decision in that case, I said nothing whatever about the possibility of distinguishing the separate intentions of the 11 members of an unlawful assembly when their common intention can be easily inferred by their having caused the death of six separate persons and so every one of them must be presumed to have anticipated the death of every one of the injured as the result of acts which might be done in furtherance of the common intention.
11. I made no remarks in that case which could have any possible bearing upon inference to be drawn from the very different facts of the case tried by the learned Sessions Judge. The learned Sessions Judge, I regret to say, has quite failed to understand the decision in Subba Rao v. Emperor A.I.R. 1941 Mad 489 for I find that in this case again he has charged certain persons under Section 148, Penal Code, read with Section 149, Penal Code, although the principal point dealt with in Subba Rao v. Emperor A.I.R. 1941 Mad 489 was that it is not possible for a person to be constructively guilty of an offence under Section 148, Penal Code. The learned Sessions Judge moreover has convicted all the accused under both Sections 147 and 148, Penal Code. This is clearly impossible. If a rioter is armed with a deadly weapon, he is punishable under Section 148. It is not possible to find him guilty both under Section 147 and Section 148, because however many the weapons he may be armed with, ho commits only one offence of rioting in the course of the same riot.