1. Bharat Singh, Puttu Singh, Bishal Singh, Jhabbu Singh and Samam Singh were charged along with four others who were acquitted under Ss. 302/149, 147, 324/149 and 148, Penal Code. Bharat Singh and Puttu Singh were sentenced to death under S. 302 read with 149, Penal Code. Bishal Singh, Jhabbu Singh and Saxnam Singh under the same Section were sentenced to transportation for life. Under S. 147 all the appellants were sentenced to two years' rigorous imprisonment and under S. 324/149 to one year's rigorous imprisonment. Puttu Singh, Bharat Singh and Samam Singh were sentenced to two years' rigorous imprisonment under S. 148, Penal Code.

2. The appellants were charged under the section already mentioned along with four others, namely, Chhotey Singh, Badshah Singh, multan Singh and Dip Singh. These four however were acquitted by the learned Sessions Judge. The charge against the accused was that on 21st May 1933, in the village Lilapur, District Farrukhabad, they formed an illegal assembly whose common object was to murder one Jhunni Singh, and in pursuance of this common object they attacked him armed with deadly weapons and murdered him, and further that they inflicted grievous injuries upon one Nathu Singh. There is no dispute about the fact that jhunni Singh was murdered on 21st May 1933. The post-mortem examination disclosed that he had sustained seven punctured or incised wounds:

“(1) Incised and punctured wound ½″ × ¼″deep down to chest in Front of right chest 1″ from the middle line above the level of nipple.

(2) Punctured and incised wound 1″ × ½″deep down to abdomen on right side of abdomen on level with the 11th right rib.

(3) Punctured wound 1″ × ½″ and deep down to abdomen on right side between the ribs and iliac crest.

(4) Incised would 1″ × ½″ × 4″ inner side of upper part of left thigh below the groin.”

(5) Incised wound 2″ × ½ × 1″ centre of back of chest in middle line.”

3. There were further two incised wounds, one on the middle of right middle finger in front and one on the centre of left middle finger in front. Death is certified by the Civil Surgeon, who conducted the post-mortem examination, to have been caused by puncture of right lung right kidney and abdomen. The injuries in his opinion were caused by some sharp-pointed weapon like a spear. It is beyond dispute further that Nathu sustained injuries on the same date. Nathu was examined on the 23rd May and he was found to have sustained five injuries, all of which were simple, with the exception of one punctured wound 1½″×¾″×¾″ on the right buttock. All the injuries, with the exception of this grievous injury, were probably inflicted, according to the medical officer, with some blunt weapon.

4. The first information report of the murder of Jhunni Singh and the injuries to Nathu Singh was made on the 21st May, about 4 p.m at the police station Rajapur, ten miles from the village of Lilanur. The report was made by one Dal Singh, a resident of the village of Lilapur. In this report Dal Singh states that about noon of that day, viz., the 23rd May, the deceased Jhunni Singh and Nathu Singh were weighing their wheat at the village threshing floor which was in a grove on the outskirts of the village. They were approached by the accused, one of whom, Bharat Singh, demanded that Jhunni should repay to him the Rs. 50 which were owing to him by the deceased. Jhunni replied that he was unable to pay at the time. Thereupon Bharat Singh demanded that he should be given wheat in lieu of the Rs. 50 which were due. Jhunni refused to accede to this suggestion, whereupon Chhotey Singh, one of the accused who has been acquitted, came up, and when Bharat Singh told him that the deceased refused to pay his debt Chhotey Singh shouted, “beat the ‘salas.” The nine accused then rushed upon the deceased and Nathu, felled Nathu to the ground and inflicted upon Jhunru the hruries above referred to, to which injuries Jhunni immediately succumbed. In support of the prosecution case eight eye-witnesses were adduced. They all support the story told to the police in the first information ???. It is unnecessary to consider the evidence of these witnesses in detail. They support each other in all material particulars. According to these witnesses six of the accused were armed with spears and three with lathis. It is clear also from the evidence of these witnesses that before the attack upon the deceased and Nathu there was an altercation and an exchange of abuse. The fact that there was an alternation is referred to in the first information report. All the witnesses in their evidence in the Sessions Court stated that there was an interchange of abuse. There is some doubt upon the evidence as to who struck the first blow. The witness Dhal Singh, who is a cousin of the deceased and a brother of Nathu, stated that the deceased Jhunni was the first to wield his spear and he struck the accused Puttu Singh. Puttu Singh did receive an injury and was medically examined on the 21st May. He was found to have a contused wound in front above the forehead with severe bleeding and inflammation on the right eye at the time of examination. Another prosecution witness, namely, Munshi Singh, stated in evidence that lathis were flying on all four sides. In our view therefore at is clear from the prosecution evidence that this unfortunate incident which resulted in the death of one and grievous injury to another, arose out of a quarrel over a trivial matter namely, the repayment of Rs. 50 due by the deceased to Bharat Singh.

5. Learned counsel for the appellants has contended that the evidence did not disclose any common object on the part of the accused either to murder Jhunni or to inflict grievous injury upon kathu. There is no doubt that the accused acted on the spur of the moment, no doubt provoked to a certain extent by the abuse which was indulged in by Jhunni and Nathu. What their intention was however when they attacked Jhunni can only be gathered from what happened. It is true that according to the prosecution Chhotey urged the accused merely to beat Jhunni and Nathu. On the other hand, it is proved that six of the accused were armed with spears and that the deceased sustained no fewer than five spear injuries each one of which was a fatal injury. If a number of men armed with spears rush at another and plunge their spears into his body then there is only one inference in law, and indeed in fact, which can be drawn and that is that the common intention of the assailants was to kill their victim. We therefore hold that the appellants with the exception of Bihsal Singh, whose case we shall refer to in a moment, were rightly convicted under S. 302 read with S. 149, Penal Code. Learned counsel for the appellants has urged us to record a conviction, if we accept the evidence of the prosecution, under S. 304 and not under S. 302, Penal Code. We have given this contention of learned counsel very careful consideration. It is undoubtedly clear from the evidence that the killing of Jhunni was perpetrated without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. But we cannot hold that the offence committed comes within the terms of Exception 4 to S. 300, Penal Code. In view of the fact that there were at least five persons armed with spears and two with lathis on the accused's side and two on the others, that no grievous injury was inflicted either by Jhunni or Nat how we cannot hold that Jhunni's assailants did not take undue advantage or that they did not act in a cruel and unusual manner. We therefore reject the contention that the offence committed by the appellants is covered by Exception 4 to S. 300, Penal Code. Their offence is clearly one under S. 302 and not under S. 304, Penal Code.

6. The learned Sessions Judge for reasons which upon the evidence we are entirely unable to appreciate, has distinguished between the cases of Bharat Singh and Puttu Singh on the one hand and the other three appellants upon the other. He has sentenced Puttu Singh and Bharat Singh to death under S. 302 read with S. 149, Penal Code, and the other three to transportation for life. The evidence against all the appellants is precisely the same. The testimony of the witnesses does not indicate that a more prominent part in the attack was taken either by Bharat Singh or Puttu Singh, and we have no hesitation in holding that the learned Sessions Judge was quite unjustified in holding that Bharat Singh and Puttu Singh were in any degree more responsible for the death of Jhunni than the other three appellants. We are satisfied that the offence committed is one under S. 302, Penal Code, that it was committed as the result of sudden provocation and without premeditation and, in the circumstances therefore we are constrained to take the view that this is a case in which the Court may impose the lesser sentence.

7. The case of Bishal Singh stands in a different position from that of the other appellants. Bishal Singh, according to the evidence, struck Nathu Singh with his lathi.

8. He is not accused of taking any part in the attack upon Jhunni. We have had the advantage of seeing Bishal Singh in Court. His right hand is completely useless. The hand is deformed and the arm is withered, and we are satisfied that he could not have wielded a lathi. It has been suggested that he Alight have wielded the lathi with his left hand, but we consider this suggestion a very doubtful one. We are not satisfied upon the evidence that Bishal Singh took any part in the attack either upon Jhunni or Nathu. In these circumstances he is entitled to an acquittal in respect of all the charges which were preferred against him. We see no reason to interfere with the conviction and sentences of Bharat Singh, Puttu Singh, Jhabbu Singh and Samam Singh under the other sections under which they have been convicted and sentenced.

9. In the result we allow the appeal of Bishal Singh. We set aside his convictions and sentences and direct that he be liberated forthwith provided he is not required by the authorities in connexion with any other charge. We dismiss the appeals of Bharat Singh, Puttu Singh, Jhabbu Singh and Sarnam, but in the cases of Bharat Singh and Puttu Singh we reduce the sentences of death imposed by the learned Sessions Judge to sentences of transportation for life. The sentences of transportation for life passed against Bharat Singh, Puttu Singh, Jhabbu Singli and Samam Singh will run concurrently with the sentences imposed by the learned Sessions Judge under the other sections.

K.S

10. Order accordingly.