1. The appellants in these cases were tried before the Second Additional Sessions Judge of Buckergunge and a jury and the jury unanimously found them guilty on all the charges found against them. AH the accused were charged with rioting armed with deadly weapons and also with being guilty of murder in consequence of one Nehaluddi having been murdered in prosecution of the common object of the unlawful assembly, Four of the accused were also convicted of murder after bringing into operation the provisions of Section 34, Indian Penal Code. All the accused have been sentenced to transportation for life and further sentences have been passed of three years' rigorous imprisonment each under Section 148, Indian Penal Code, the sentences to run concurrently. The appellant Kabiruddin has farther been convicted of an individual act of causing hurt with a dangerous weapon and sentenced to three years' rigorous imprisonment under Section 324-this sentence also to run concurrently with the sentence of transportation for life.
2. An objection has been taken to the framing of the charges of murder; but we fee no reason why in the present case the persons alleged to have taken a more immediate part in the causing of the death of the deceased should not be charged under Section 302 read with Section 34, Indian Penal Code, and also charged with others with constructive murder under the provisions of Section 149, nor can we accept the contention that, on the facts alleged and found, Section 34 is rot applicable to the case of the appellants who have been convicted under Section 302 read with that Section. But we are of the opinion that there has been a serious misdirection in putting the medical evidence before the jury According to the medical evidence, Nehaluddi, the person found to have been murdered, had fear injuries on his person, three wounds in his head scalp deep and a deep cut wound on his side. It was also found that the membranes of the brain ware deeply congested and covered with a thick layer of coagulated lymph. In the opinion of the Civil Surgeon who held the post mortem examination, death was due to shook and hemorrhage resulting from the injuries just mentioned and probably accelerated by the condition noted in the membrane of the brain which appeared to be of old standing. In putting the medical evidence to the jury, the learned Sessions Judge correctly put to them explanation of Section 299, Indian Penal Code, which provides that a person who onuses bodily injury to another who is labouring under a disorder, disease or bodily infirmity and thereby accelerates, the death of that other shall be deemed to have caused his death. Bat what he omitted to do was to point out that, if a person was suffering from an injury which would render injuries which would not have a fatal effect to one ordinary man, fatal to that person, it does not necessarily follow, as it would in the case of a healthy man, that the person inflicting those injuries knew it to be likely that death would be gauged thereby. The fast that the deceased was suffering from a disease which accelerated his death and also the fact that the injuries described in the medical evidence are in themselves not apparently sufficient to cause immediate death should have been pointed out to the jury and they should have been asked whether they were satisfied that the accused when attacking Nehaluddi knew or had reason to believe that the injuries they caused to him were likely to cause death and whether it could be inferred that they intended to cause death. It may be that the view of the jury was that when a number of persons armed with spears did attack a person, they intended to cause his death and that the fast that he died a little sooner owing to unknown infirm(sic)tties did not affect the case. But it may also be that, had the beaming of the medical evidence on the intention of the accused been properly put to the jury, they would not Lave been able to come to the decision they did that by causing the death of Nehaluddi the offense of murder was committed. Taking this view, we must bold that there has been a misdirection and that that misdirection has it effect caused a miscarriage of justice. But having regard to the fast that the accused have also been convicted and sentenced for the offence of rioting armed with deadly weapons which, conviction is, in no way, affected by this misdirection, we do not think it necessary to order a retrial. We also think that, having regard to the youth of the appellant, Hayyat Ali, who is recorded to, be 14 years of age, the sentence on him may be considerably reduced We accordingly allow these appeals to this extent: the convictions of the appellants under Section 302. read with Section 149, Indian Penal Code, are set aside and also the convictions of the four appellants, Ainuddi Chowkidar, Barukhan, Shujaddi and Khadun Ali under Section 302 read with Section 34 Indian Penal Code, are set aside and also the sentence of transportation for life passed under those sections. We affirm the convictions of the appellant under Section 148, Indian Penal Code, and also the conviction of Khabiruddin under Section 324, Indian Penal Code, and uphold the sentences passed on them under these sections, except in the case of the accused Hayyat Ali. We reduce the sentence passed on this accused, Hayyat Ali, to one year's rigo(sic)ous imprisonment.