1. The two appellants were charged with murder for causing the death of a man named Basir Sheik. The jury unanimously acquitted them on this charge but found Asmat Sheik guilty of culpable homicide punishable under Part 1 of Section 304 I.P.C., and Asrat Sheik guilty of culpable homicide punishable under Part 2 of that Section. It was obvious that such a verdict required examination and we accordingly directed the appeal to be heard. The prosecution case was briefly as follows : The two appellants are father and son. The deceased was the son of Bajaraddi, brother of the appellant, Asmafc Sheik. The two families lived in separate huts in the same compound; but in spite of this they had been on bad terms for some time and there had been both civil and criminal litigation between them. The incident which led to this trial took place on the 9th June last. According to the prosecution the deceased and another man was cutting earth in a part of the compound. No objection was raised by the appellants or anybody and nothing happened until about noon when the two appellants rushed out, Asmat being armed with a lathi and Asrat with a pointed piece of wood cut from a betel nut tree. Asmat beat the deceased severely, felled him to the ground and then beat him again. Asrat struck him with a pointed Sulpi and, according to the prosecution, injured his arm. On these facts the prosecution case is that the two appellants had a common intention to cause Basir's death and did actually cause it.
2. Although Asmat denied categorically that he had anything to do with the matter, the defence advocate put forward a case that there was a mutual fight and that Asmat was entitled to the benefit of the fourth exception to Section 300, I.P.C. Although the prosecution witnesses were not prepared to admit that anything of the kind had happened, there was circumstantial evidence to support this case and the learned Judge put it very strongly to the jury. In view of the evidence there can be no doubt that death was due to the beating inflicted by Asmat. It further appears from the medical evidence that Asrat did not puncture the arm of the deceased with his weapon. Now that the case had been fully put before us we have no doubt that the verdict of the jury was that Asmat caused the death of the deceased with an intention that would establish a charge of murder but that he brought himself within Exception 4. They, however, proceeded to convict Asrat under Part 2 of Section 304. Both the learned Deputy Legal Remembrancer and Mr. Das Gupta submit that on these facts the appellant Asrat ought to be convicted under Section 323, Penal Code.
3. Now when once the jury were satisfied that Asnaat had brought himself within the Exception 4, there was no room for the application of Section 34 against Asrat at all. The verdict itself shows that while Asmat had the intention to commit murder Asrat had not. There was thus no common intention at all. The verdict of the jury against Asrat appears to be due to the way in which the learned Judge dealt with the matter. He Mmself appears to have been in two minds. At the end of his charge he put the case properly and in accordance with that direction the jury would have convicted Asrat under Section 323. But unfortunately immediately before that he put a case under Section 304, Part 2 read with Section 34. This passage in the charge is extremely confusing and the jury must have been unable to understand the ease properly. It is true that the learned Judge pointed out that whereas Section 34 deals with intention, Part 2 of Section 304 deals with knowledge only. He then went on to say:
'If you find that there was such a common intention to do an act,' but he did not explain what this act was on this aspect of the case. Had he done so it would have been apparent that there was no common intention at all.
4. Finally, we were addressed on the question of sentence in the case of Asmat. We accept the position that the jury's verdict amounts to a finding that there was a sadden fight between him and the deceased. In addition to this there is the fact that he himself was beaten on the head. We accordingly uphold the conviction of Asmat under Section 304, Part 1, I.P.C., but reduce Ms sentence to rigorous imprisonment for ten years. In the case of Asrat we alter the conviction into one under Section 323, I.P.C., and reduce his sentence to the term of imprisonment already undergone by him. He will be discharged from his bail. With this modification the appeal is dismissed.
5. I agree.