Mullick, J.:— In these two appeals three persons, named Labhu Patar, Satrughan Patar and Sripati Patar, have been sentenced by the Sessions Judge of Manbhum as follows: Labhu Patar and Satrughan Patar to death, and Sripati to transportation for life, for having on 2nd August, 1918 committed murder by causing the death of Upendra Mahato Digwar. The case for the prosecution is that on the night of 24th July, 1918 three dacoities took place in the village of Seadih, of which the appellants are residents. Suspicion pointed to the appellants, who belong to the Bhumij caste; and on the date of the alleged murder the Sub-Inspector of Gourangdin Thana had gone at about 7 a.m, to the village for the purpose of conducting, an investigation and had directed Upendra Mabato who held the office of Digwar, or village watchman, to join him in the village for the purpose of assisting in the investigation. At about 10 or 11 a.m, Upendra Mahto, accompanied by Netai Das, Roshan Baur Chowkidar, Indra Layek Tabedar and Akhoy Tabedar (the last two being some subordinate officers) had just crossed a river near Seadih and was going along a small path, when the appellants Labhu and Sripati suddenly jumped up from a place where they were in hiding and attacked him; the former with a sword, and the latter with a dagger. Upendra Mahato was armed with a swordstick, and in defending himself is alleged to have caused a slight injury to Labhu, but he received no assistance from his companions and was felled to the ground. Thereupon his assailants ran away towards the village.
2. It is alleged that Roshan and Indra were then sent off to bring assistance while Netai and Akhoy remained with the wounded man. It is not certain what were the precise injuries from which he was then suffering, but it is clear that he was able to speak and was assisted to a tree some 60 or 70 cubits distant. About half an hour later while he was lying there, Labhu and Sripati accompanied by their uncle Satrughan came from the village and again attacked him. Labhu according to the majority of the witnesses, was armed with a sword, Sripati with a dagger, and Satrughan with an axe. They fell upon the wounded man and hacked him to death. It is further alleged that Satrughan also struck him with a big stone. Information was given to the Sub-Inspector of Police at Gourangdin Thana at 4 p.m The place of occurrence being only three miles off, the delay in lodging the information has been one of the points made by the learned counsel for the appellants. The Sub-Inspector arrested Satrughan in the village that same night and it is alleged that Satrughan thereupon handed him an axe. Labhu and Sripati surrendered later, and denied having taken any part in the attack. On the other hand Satrughan has from the outset taken the whole blame upon himself and has set up the case that owing to enmity with the deceased he attacked the deceased when he was going along the road above mentioned and killed him single handed.
3. The learned Sessions Judge declined to believe this story and agreeing with both the assessors has accepted the case for the prosecution that the deceased was attacked in the manner alleged by the witnesses at the Sessions trial. The learned counsel who has appeared for the appellants has taken us through the whole of the evidence and has urged everything that it was possible to urge on their behalf. But having carefully considered the arguments addressed to us I think that the conviction of Labhu and Sripati is substantially correct. With regard to Satrughan the case is different and I will proceed first of all to consider the evidence against him. This appellant is according to his statement at one place, 58 years old, and his statement at another place, 62 years old. The other two appellants Labhu and Sripati are 32 and 21 years of age respectively. The learned Sessions Judge finds that Satrughan took a leading part in the attack upon the deceased after his two nephews had gone to the village and informed him of the first assault. It is curious however that the first information fails to support the case made out by the prosecution witnesses as to the manner in which Satrughan was armed. In the first information report it is only stated that Satrughan took up a stone and threw it at Upendra Mahto. In the Court of the Committing Magistrate and the Sessions Judge, the witnesses were not cross-examined as to why no mention was made in the first information of the fact that Satrughan was armed with any sharp cutting weapon. Netai's statement before the Committing Magistrate was that Satrughan who armed with an axe; in the Sessions Court he varied that statement by saying that he was armed with a kudali. Akhoy Tabedar in the Sessions Court said that he was armed with an axe and a stone. Mangal's story was to the same effect. Indra Tabedar and Roshan Chowkidar who were sent off to fetch assistance after the first attack, of course, are unable to state how Satrughan was armed, because they did not return to the spot till after the deceased had been killed. The discrepancies as to the manner in which Satrurghan was armed appear to me to be very serious. I attach great importance to the first information on this point and I fail to see why, if Satrughan was armed with a cutting instrument, no mention of it should have been made in that document. It is much more probable that after the deceased had been killed, he, as a parting blow, picked up a stone and hurled it at the body of the deceased.
4. The eyewitnesses to the occurrence so far as he is concerned are Netai, Akhoy and Mangal, but as I have said, although they are positive that Satrughan was armed with a deadly weapon, I think it would be safer to hold that he did not commit any act in furtherance of the common intention of his two nephews. It has been strongly pressed on us by the learned Government Advocate that even even if Satrughan took no part in the assault and even if he merely threw a stone at the deceased, whether before or after the death of the deceased, his mere presence at the assault would render him liable, by the application of S. 34, I.P.C to conviction for the offence of the murder. It is contended that he shared the common intention to kill the deceased, and he is liable in the same manner as his two other companions. Now this question of intention is a question of fact. I can find no evidence that warrants the inference that he came from the village intending to kill Upendra Mahto Digwar or that he assisted them in any way to accomplish their object. If the evidence as to the axe is disbelieved, then there is also no evidence that he joined in inflicting any of the injuries from which the deceased died. The evidence is equally consistent with the theory that he intended merely to cause hurt, and that after the deceased had been killed by the two young men, he took up a stone and hurled it upon the body of the deceased. In this view of the case it is impossible to apply S. 34, I.C, and therefore Satrughan must be acquitted of the offence of murder of which he has been convicted.
5. The conviction and sentence, so far as Satrughan Patar is concerned, must be set aside, and he must be acquitted and set at liberty. There remains the case of the two other appellants, Labhu Patar and Sripati Patar. If it is once held that Satrughan was not armed in the manner alleged, then the case becomes very much simpler. Holding as I do that Satrughan was not armed with any deadly weapon, and that he only struck the deceased with a stone, it is clear that if the appellants Labhu and Sripati did at all attack the deceased then they and they alone must be responsible for his death. Now the medical evidence shows that the deceased received no less than nine incised wounds. Of these the first was an incised gaping wound 8 inches into 4 inches from the middle part of the back of neck transversely to the angle of mouth on the left side, cutting the soft structures, vertebral column with the spinal cord and the left side of the lower jaw, also the big vessels and nerves on the left side. The second wound was an incised wound 7 inches into 3½ inches encircling the whole of back and upper part of left side of the neck cutting all the structures and exposing the mouth cavity. The third was an incised wound 8 inches into 2½ inches into ½ inch situated obliquely on the lower part of the left side of back of the neck and extending downward to the right shoulder blade. The others were incised wounds on the right shoulder, the back of the head, and the top of the head and on the left thumb and index fingers.
6. It is necessary therefore to determine whether Labhu and Sripati inflicted all or any of the above injuries. The first question that arises in this connexion is whether Labhu was armed with a sword as alleged by the majority of the witnesses. The first information mentions a sword; so also do Netai, Akhoy, Indra and Roshan in their depositions before the Sessions Judge. The only noticeable contradiction is that of Netai in the Sessions Court with reference to the second attack, where he says that Labhu came back with an axe. Before the committing Magistrate he said that Labhu came back with a sword. After making the fullest allowance for this discrepancy I think there is a preponderance of evidence that Labhu was armed with a sword and not an axe in both assaults. Then as to Sripati, the first information states that he was armed with a dagger. Netai and Akhoy in the Sessions Court corroborate this story.
7. Mangal who was in both the first and the second attacks states that the two young men were cutting the Digwar. He does not specify with what particular weapon each was armed. Indra makes a noticeable contradiction. He only witnessed the first attack and he states that Sripati was armed with an axe. This is not supported by any other witnesses, while Roshan Chowkidar merely states that Labhu and Sripati wounded the Digwar. In my opinion, after making allowance for the contradiction in the evidence of Indra, we ought to accept the version of Netai as given in the first information and corroborated in Court by Akhoy. These two witnesses had no particular object in implicating the appellant Sripati falsely and it is certain that they stayed with the deceased from the first to last, and I accept the contention of the learned Government Advocate that Sripati was armed with a dagger and that he joined in the attack upon the deceased with this weapon. The next question is. What were the injuries caused by Labhu and Sripati respectively. It is impossible from the evidence to form any correct idea of the precise injuries that were caused in the first attack. The first information states that Labhu struck the deceased with a sword on the back of the head and on the hand; in defending himself the deceased's thumb and finger were cut and the deceased was felled to the ground after he had struck Labhu with his swordstick. After the deceased fell, Netai used his lathi and struck Labhu on the head.
8. With regard to Sripati there is no mention in the first information of the particular injuries caused by him. In Court Netai's story is that Labhu cut the deceased on the left shoulder with a sword, and Sripati struck him on the back with a dagger. When Labhu aimed a second blow with the sword, the deceased held up his hand and received the injury on his thumb. Sripati then cut him on the head.
9. Akhoy Tabedar states that Labhu struck the deceased on the left side with a sword and Sripati struck him on the back with his chura, then Labhu struck the deceased on the hand and Sripati struck him again with a dagger. Mangal does not give any details. Indra makes a noticeable contradiction by saying that Labhu struck the deceased on the neck, and that Sripati struck him on the hand. It is clear that this is a version which has not been given by any other witness.
10. Roshan merely states that Labhu attacked the deceased with a sword and that Labhu and Sripati together wounded him. In this state of the evidence it is not possible to state with any degree of accuracy how many injuries were caused in the first attack; but it does appear from the medical evidence that of the injuries found by the medical officer wound No. 3 was probably caused in the first attack by Labhu and it was the injury on the left shoulder which was first of all inflicted with a sword. It is not clear why the witnesses should not have been in a position to detail the precise injuries which were caused in the attack, but the evidence points to the fact that the injuries which killed the deceased were caused after the two appellants Lahhu and Sripati returned from Seadih with Satrughan. The evidence is conclusive upon the point that in the first attack the deceased did not receive any serious injury to the neck, but that as a result of the second attack his head was almost severed from the body and I have no doubt that injuries Nos. 1 and 2 were caused in the second attack and they were by themselves quite sufficient to cause death.
11. On this point the only witnesses whose testimony is available are Netai, Akhoy and Mangal; they all agree in stating that the appellants hacked the deceased to death. They do not go into detail, nor from the number and nature of the injuries caused would it be possible to expect them to do so. The medical evidence shows that each of these major injuries might have been caused by one or more blows by a sharp cutting instrument. It is quite clear that there was a savage and violent attack with the sword and the dagger, and that some of the injuries were certainly caused by more than one single blow. There can be no question from the nature of the attack that the intention of the assailants was to cause death.
12. In these circumstances I have no doubt that the assessors were right in finding that Labhu and Sripati were guilty of murder. One assessor did, but the other did not believe the whole of the evidence, but both were satisfied as to the guilt of the assailants. In my opinion the evidence is on the whole substantially true and the eyewitnesses were at the place of occurrence at the time when the murder took place. It has been urged in this connexion that there was no adequate motive for the crime. The learned Sessions Judge has gone into this matter in some detail. He has shown that the deceased Digwar succeeded a Bhumij in the office of Digwar some 14 years ago, and that since then he has been assessing the Bhumij inhabitants of Seadih with rent for lands which they had previously held rent free. It also appears that in April 1918 the son of the deceased brought an assault case against Sripati and Labhu which was compromised on the payment of Rs. 15. It is also established by the evidence of the Sub-Inspector that in connexion with the three dacoities which occurred on 24th July, only nine days before the murder, the deceased had told the police that he suspected the three appellants. Clearly there was sufficient motive for the appellants to join in an attack upon the deceased.
13. It is next urged that Netai was assisting the police in the matter of the dacoities and that the eyewitness Mangal is the servant of the men in whose house one of the dacoities took place. It has also been pointed out that Indra and Akhoy are themselves village police officers. Making the fullest allowance for these facts I am unable to see why the evidence given by these witnesses should be rejected as untrue. One if not both assessors believed them. He had an opportunity of watching their demeanour and I think he was right in coming to the conclusion that they had substantially spoken the truth.
14. It has been on the other hand contended that Satrughan's statement, to the effect that the deceased had outraged his daughter and daughter-in-law and had in many other ways attempted to molest the residents of Seadih, is true. Now there is not an atom of evidence to support this contention and the bare statement of Satrughan cannot be accepted. The appellants before us apparently had legal assistance in the Court below, and if there was any substance in the allegation that the deceased had been guilty of molesting the women of Satrughan's household, we should have expected some evidence to have been called. In the absence of such evidence I must hold that the allegations have not been made out. The learned Counsel has attempted to use Satrughan's statement for the purpose of mitigating the guilt of Labhu and Sripati, but no grave and sudden provocation having been established, I can find no materials for reducing the offence to one under S. 304, I.P.C With regard to the question of motive I have to observe that the learned Sessions Judge has made certain observations in this connexion which are irrelevant. He has used his own knowledge of the state of the district for the purpose of showing that a Bhumij is a habitual criminal and that he is not deterred by considerations of safety or prudence from committing murder in open daylight. In my opinion these observations were irrelevant, and the question of motive should have been considered only upon the facts established in the evidence in the case.
15. The learned counsel for the appellants has drawn our attention to the delay that occurred in lodging the first information. The offence is alleged to have been committed between the hours of 10 and 11 a.m and Netai Das, although he had only three or four miles to go, did not arrive at the Police station till 4 p.m It is suggested that the interval was taken up in concocting a false story. Allowance must be made for the fact that the attack was brutal and violent. It was necessary for Netai to obtain advice and his nerves after witnessing a scene of that kind must have been considerably shaken; in my opinion the interval of four hours under the circumstances does not necessarily indicate that the story eventually placed before the police was a concocted and false story. There could be no object in concocting such a story if Satrughan was the real murderer, and Labhu and Sripati were not there at all. In particular I fail to see how Netai could have known of the injury inflicted by the deceased with his sword stick on Labhu's side. The medical evidence also shows that there were two other Slight injuries upon Labhu's body, and the suggestion that Netai caused these with a stick seems to me to be well founded.
16. It has been urged that it is strange that Netai, instead of going to Seadih where the Sub-Inspector was waiting, should have gone by a roundabout way to Gaurangdih Thana. Now we have no evidence that at the time that the murder took place the Sub-Inspector was actually in the village. He states in his evidence that he left the village at about 11 a.m and in the absence of any definite information that he was in the village, we cannot say that Netai was wrong in going off towards the thana and avoiding the inhabited parts of Seadih where the Bhumijes were so hostile. In these circumstances the action of Netai does not seem to me to indicate that there was any bad faith on his part. On a review of the whole evidence I am satisfied that the conviction of Labhu and Sripati must be affirmed. There can be no question that from the nature of the weapons used and the injuries inflicted the offence must be one of murder under S. 302, I.P.C The sentence of death passed upon Labhu in my opinion is appropriate. It is impossible to hold that there were any mitigating circumstances in his case. He is 32 years of age, and fully aware of the nature and consequence of his act. The learned Sessions Judge has considered it necessary to make a difference in the case of Sripati on the ground of his youth. I will accept the view taken by him, and hold that perhaps there were circumstances in his case to show that he was merely obeying the orders of the two older men.
17. The result is that the appeals will be dismissed and the sentence of death passed upon Labhu will be confirmed and so also the sentence of transportation for life passed upon Sripati.
18. Manuk, J.:— Although I agree with the judgment just delivered and the order proposed to be passed by my learned brother, having regard to the gravity of the issues involved in this case I deem it desirable to express my own views separately. The story of the crime as told in Court by the principal eyewitness, one Netai Das, a cultivator and Baishudi of village Ketun Kiyari, is as follows:
He was going at about 10-30 on the morning of the 17th Sraban, corresponding to 2nd August, 1918, to village Seadih, which appears from the map to be about a mile west of village Ketun Kiyari. He says he was going to buy goor, but it is more than probable, as observed by the learned Sessions Judge, that he was really going to assist in the inquiry regarding the dacoities that had taken place in Seadih. On his way not far from his house he met the deceased Digwar with Akhoy Degharia Tabedar, P.W 2, a resident of Tala Jura, Roshan Bouri, chaukidar, P.W 4, and Indra, also a tabedar of Ketun Kiyari, P.W 3. As the party crossed the river and proceeded up the gulli, the appellants Labhu and Sripati suddenly appeared, Labhu armed with a sword and Sripati with a dagger. Saying they were going to kill the Digwar, the two appellants proceeded to attack him, despite the protests of his companions and their somewhat faint-hearted attempt to protect him. Labhu, it is alleged, struck the Digwar with his sword on the left shoulder. The Digwar, who meanwhile defended himself with a swordstick, apparently had not time to unsheath the sword, with the result that the sword-stick was split by the blow of Labhu. Sripati then struck the Digwar with his dagger on the back. Labhu gave another blow to the Digwar, who partially warded it off with his left arm and was hurt on his palm and on the fingers of the left hand. The Digwar is then said to have struck Labhu on the right side with a swordstick, and meanwhile Sripati cut the Digwar across the head. The complainant also alleges that he struck Labhu with a stick. The Digwar having fallen down severely wounded, the two accused ran away.
19. Netai and Akhoy remained with him and bandaged him while Indra and Roshan went for help to the village and to fetch a khatia. About half an hour later, before they returned, Labhu and Sripati, accompanied this time by their uncle Satrughan, a man about 60 years of age, re-appeared on the scene, Labhu with his sword, and Sripati with his dagger, and Satrughan, as alleged in Court by the complainant, armed with a kudali and a stone. It will be observed that this seems a curious combination of weapons for a man of 60 to bring with him to the scene. The witnesses through fear moved aside, on which Satrughan first of all (this is the story in Court) threw the stone at the wounded man, and then all the three hacked at him with their respective weapons. The complainant Netai Das and Akhoy then ran towards Seadih, where they met Bhola Nath Mahato, P.W 10, and Sujan Mahato, P.W 6, and others, to whom they narrated what had happened. The party then returned to the spot where they found the Digwar dead with his head almost severed from his body. Then the complainant with Roshan, chaukidar, went to the thana of Gourangdih, three or four miles away from Seadih and lodged the first information report, Ex. (1), which, except in one very material particular with which I shall deal later, substantially conforms to the story told now in Court, though it is more concise.
20. With regard to the motive for this crime the prosecution allege more than one motive. In the first place, it is said that the Digwar ghat of Kitankeari formerly belonged to a relation of the accused. Upendra Mahato, the deceased, was appointed in his place 16 or 17 years ago. On his appointment, Upendra Mahato tried to assert his right to assess the appellants with rent from which they had escaped during the tenure of the, office by their Bhumij relation. Then in April 1918 one Nalinakhya Mahato, P.W 11, a son of the deceased Digwar, prosecuted Labhu and Sripati, the two appellants, and two others not before us, for assaulting him. The result of that prosecution was that one of the accused, it is not clear which, was summoned and the case was eventually compromised by the accused paying Rs. 15-4-0 as compensation to the son of the Digwar. A more immediate and to my mind the more important motive for the crime however is evident. A week or so before this occurrence took place—to be precise on 24th July, three dacoities occurred in Seadih village, and in connexion with them three Bhumijes of Kitankeari had been arrested by the Sub-Inspector, P.W 12. It is beyond doubt that the deceased Digwar suspected the three appellants as well of complicity in this dacoity and told the Sub-Inspector so. On the morning of the occurrence in the present case, the Sub-Inspector was actually at Seadih from 7 o'clock to 11 o'clock investigating the dacoity cases.
21. The story of the prosecution is that the deceased Digwar was with his tabedars and chaukidar on his way to the Sub-Inspector to assist him in the inquiry. P.W 11, the deceased's son Nalinakhya Mahato, alleges that Satrughan came to his father, fell at the latter's feet and begged him not to implicate him in the dacoity. I am of opinion however that the truth of this incident is open to grave doubt and that for the simple reason that althdugh this witness says that Netai and Akhoy were both present, neither Netai nor Akhoy says one word about it. It is one of the many facts on this record which convince me that a most determined attempt has been made by the prosecution witnesses to implicate the old man Satrughan up to the hilt in this charge of murder. However that may be, the Sub-Inspector undoubtedly proves that the Digwar was assisting him in the inquiry and told him that the three accused were mixed up in the dacoity case. The Sub-Inspector also tells us that he asked the deceased Digwar to watch the movements of the appellants. Now although other Bhumijes were also suspected and some were under arrest I am of opinion that the various incidents in connexion with this dacoity, excepting the incident spoken to by P.W 11 alone, taken in conjunction with the criminal case in April 1918 and the general ill-feeling as to the rent assessed on the appellants, are ample material on which we may hold that a motive for the crime has been sufficiently established as against the appellants. I agree with my learned brother that it was quite unnecessary as it was irrelevant for the learned Sessions Judge to import into his judgment matters within his own official knowledge from his experience in the district. Such procedure has so often been condemned that it is somewhat surprising to find it still in vogue and resorted to by the learned Judge. This practice was deprecated recently in this Court in Mangni Lal Marwari… v. Emperor…Opposite Party.(1).
22. Now with regard to the witnesses to this occurrence, apart from the complainant we have P.W 2 Akhoy Degharia, who proves the details of both assaults. Indra, P.W 3 and Roshan P.W 4 prove only the first assault, inasmuch as these two went to fetch a khatia after the first attack and did not return in time to see the second one. Then we have P.W 5 Gora Kora of Seadih who proves the first assault in very general terms, and No. 6 Sujan Mahto who merely proves what Gora told him. No. 7, Liloo Mahato also of Seadih is called merely to corroborate Netai and Thakur as to what they told him about the occurrence which had taken place. P.W 8 is a purely formal witness, and then we come to P.W 9 Mangal Mahato. He was with Gora and so his evidence is much on the same lines as that of Gora with regard to the first assault. He says in a general way that he saw two young men, Labhu and Sripati, cutting at the Digwar. This witness however, unlike witness 5, remained to see the second attack. With regard to this assault he says, he saw the three accused running towards the Digwar, Satrughan with an axe and a stone. The assault itself he did not witness. Criticisms of these witnesses by Mr. Nandkeolyar who has argued the case with lucidity and fairness are as follows:
With regard to witnesses 2, 3 and 4 he contends that they are tabedars and underlings of the deceased. There is however nothing in their evidents to show that there was any sort of friction or ill feeling between them and the appellants. The mere fact that they were tabedars is not to their discredit, having regard to the fact that the deceased Digwar would naturally be accompanied by his tabedars and chaukidar, when proceeding to Seadih to help the Sub-Inspector in the latter's investigation. Their presence there, to my mind rather strenghens the general case for the prosecution than weakens it. I therefore attach considerable importance to the evidence of these three eyewitnesses.
23. They were the most likely people to be with the deceased, and on the whole they have given their evidence, except in regard to the part played by Satrughan, with moderation and without any attempt to exaggerate or embellish the facts against the other two appellants. The contention regarding P.Ws 5 and 9 is that they are servants of Lambhodar Mahato, in whose house one of the three dacoities had taken place in which the three accused were suspected. Examining their evidence however one finds that Gora, P.W 5, speaks of the first assault only in general terms, while P.W 9 does much the same, and I apprehend that if they were untruthful witnesses, they would have deposed to more details in order to corroborate the other witnesses. It is common ground that the place of the assault is not far from cultivated fields, as the map shows, and therefore it is not surprising that there should have been cultivators about at the hour at which this occurrence took place. Then with regard to witnesses 6 and 7, they are, contends learned counsel, relations of Lambhohar Mahato, but as I have already mentioned, witnesses 6 and 7 really carry the prosecution no further than this: namely, that the other witnesses told them a story similar to that told in Court. Now if we accept, as we must accept, the first information report, the evidence of these witnesses is of very little avail. Had there been any great delay in lodging the first information report, it may have been urged that these witnesses had been imported into the case in order to meet the point that the interval had been spent in concoction. That however is not the case here, as the first information report was lodged with reasonable promptitude. As for the complainant, it is noticeable that the only suggestion against him is a vague one that his house was searched at the instance of Labhu; there is no evidence of this fact and the learned counsel for the appellants has been constrained to concede that there is nothing particular to urge against the evidence of this witness.
24. I accordingly hold that the witnesses have substantially told the truth with regard to the parts played by Labhu and Sripati. There can be no doubt that the deceased Digwar was killed in broad daylight, near two villages, not far from open fields, that he was going to Seadih to help the Sub-Inspector and would naturally be accompanied by the witnesses who come to prove how he met with his death. Further the medical evidence to a large extent corroborates the prosecution story. That evidence has been dealt with by my learned brother, and I need only point out that one of the medical witnesses establishes no less than nine incised injuries on the person of the deceased, more or less in the positions we would expect to find them on the evidence of the eyewitnesses to the occurrence. Then another medical witness, P.W 10, establishes that Labhu had a superficial cut 2 inches into 2½ inches on the right side of the back of the chest. He also had two other scratches. This, combined with the evidence of the Sub-Inspector P.W 12 to the effect that Labhu when arrested had a out mark on his rib and bruise on his head and another on his left shoulder, corroborates the incident told not only in Court but mentioned in the first information report a few hours after the occurrence, that Labhu had been struck by the deceased Digwar. There suit therefore is that I am satisfied as to the propriety of the convictions of Labhu and Sripati, and I am also constrained to hold that no extenuating circumstances exist, and the sentences passed on them by the learned Sessions Judge must be upheld.
25. There remains the case however of Satrughan. His own statement, which is to the effect that he and he alone killed the deceased owing to certain provocation in the shape of attempts on the part of the deceased to outrage the modesty of his womankind, has been rejected by the learned Sessions Judge. I agree in the view taken by the learned Sessions Judge. It is impossible to suppose that a man of 60 by himself could have caused all these injuries. It appears that he made a somewhat similar statement on the night of the occurrence to the Sub-Inspector, and that, to my mind, has been taken advantage of by the prosecution witnesses in this case in order to implicate him in a charge of murder along with his nephews. Now on the first information report Netai narrated the part taken by Satrughan in these words:
“From a little distance we saw that Labhu Patar gave one stroke on the neck of Upendra Mahato with the sword and Sripati also gave one stroke with the dagger. Shabinghna (Satraghan) Patar took a stone and threw it on the body of Upendra Mahato.”
26. Then again P.W 2 in cross-examination, when asked more precisely as to the part taken by Satrughan (after he had already said in a general way that the three accused backed the deceased), stated: “Satrughan had an axe and a stone I saw Satrughan striking him with a stone.” Now it is somewhat surprising if he had an axe and a stone that the old man should not have used the axe, but should have struck the deceased with a stone. I accept, as my learned brother does, the first information report as the most reliable evidence on this part of the case, and I refuse to believe the very different version given in Court. It is inconceivable that the first informer and Nalinakhya Roy, who were both present when the first information report was recorded and who were both eyewitnesses to this incident, should have omitted to tell the Sub-Inspector that Satrughan did nothing more than hurl a stone at the body of Upendra Mahato after the other two had attacked him. It must be remembered that the informants actually narrated to the Sub-Inspector in detail the precise part played by each of the assailants, and I am of opinion that they could not have forgotten so vital a particular as the assault by Satrughan were with an axe, if indeed it were true.
27. It therefore comes to this: that Satrughan came with Labhu and Sripati; it is not clear whether he actually arrived at the spot, where the wounded Digwar lay simultaneously with the other two appellants; and without more definite evidence on the record to establish this I for my part, would not draw any inference against him on this point. It may well be that the old man lagged behind and would nevertheless have been said to have arrived with the other two. The sequence of the assaults as narrated in the first information report goes to show that he in fact arrived after the other two, and it is strange that if he arrived with the other two he did not take any part in attacking the wounded man until the other two had finished with him.
28. That being so the learned Government Advocate has been obliged to fall back on S. 34, I.P.C, in order to ask us to bold that Satrughan was equally guilty under S. 302. Now there must be evidence from which one might reasonably infer a common intention infecting each of the accused, in order to apply S. 34 and hold each accused responsible for the act done by several persons in furtherance of the common intention of all. As Mr. Gour rightly observes in his valuable work on the I.P.C the presumption of constructive intention must not be too readily applied or pushed too far. It is obvious that the mere fact that a man may think a thing likely to happen is vastly different from his intending that thing should happen. The latter ingredient is necessary under S. 34; the former by itself is irrelevant to the section. It is only when a Court can with some judicial certitude hold that a particular accused must have preconceived or premeditated the result which ensued, or acted in concert with others in order to bring about that result, that S. 34 may be applied.
29. If authority is needed for these propositions, I would refer to the case of Queen-Empress v. Duma Baidya(2), where the facts were that accused 1 struck the deceased on the head with a bludgeon, accused 2 struck him across the chest with a cane and accused 3 put his foot on him and pummelled him after he fell. The medical evidence showed that the cause of death was a blow on the head which fractured the skull; the deceased died in hospital two days later. The Sessions Judge found all the three guilty of murder, and passed sentences accordingly. The High Court held that no common intention to cause death could be inferred against accuseds 2 and 3 from their particular acts of violence, which in no way contributed to the death of the deceased, though the object of all was, no doubt, to give the deceased a beating.
30. It will be observed that Satrughan's case is a good deal stronger than that case, inasmuch as in that case accused 3 trampled on the victim and pummelled him while he was still alive, while in this case, Satrughan merely hurled a stone at the Digwar when it is extremely doubtful whether the latter was alive at all. The decision in Queen-Empress v. Duma Baidya was followed by the Allahabad High Court in Emperor v. Bhola Singh(3). In the latter case three persons attacked a fourth with lathis and one of the assailants struck a blow which fractured the skull of the person attacked and caused his death, but the evidence left it in doubt which of the three assailants struck that blow. The Sessions Judge found all the accused guilty under S. 304, I.P.C The High Court held that there was nothing to show that there was a common intention on the part of all the three assailants to inflict such injury as was likely to cause death and so S. 34 would not apply. The convictions were altered to convictions under S. 325. The point again arose in Gouridas Namasudra v. Emperor(4). In that case the prosecution story was that the deceased was waylaid and assaulted by the three appellants out of revenge. The medical evidence showed that the deceased received six injuries including three severe injuries on the head, one of which injuries was the cause of his death. The Calcutta High Court in these circumstances observed:
“In the circumstances of this case we are not prepared to hold that the appellant, who did not strike the fatal blow, must have contemplated the likelihood of such a blow being struck by the others in prosecution of the common object of punishing the deceased for his interferences and for the damage done by his cattle.”
31. Now again in that case it will be noticed that the appellant was one of the party who deliberately waylaid the deceased and actually attacked him with a lathi; nevertheless the Calcutta High Court held that by itself was not sufficient to establish any intention to cause death, and S. 34 could not be applied in order to convict the appellant for the graver offence with which he was charged. In Emperor v. Ram Newaz(5) all these cases were considered and distinguished. It was observed that the facts and circumstances of cases vary, and each case has to be decided in view of its actual facts. The learned Judges also held that whether there was or not premeditation in the case before them was not clear, but there was concerted action and the attack was so ferocious as to lead almost to the inference that it had been premeditated and the death was the result of the many blows inflicted on the bead by all the appellants.
32. Now the medical evidence in the case before us is most precise with regard to one matter, and that is that death was instantaneous after injury No. 1 was inflicted, as the Assistant Surgeon deposes. My learned brother has already shown that injury No. 1 must have been caused during the second assault and with that opinion I entirely agree. That being so, taking the order of sequence of the assault given in the first information report I consider it would be most unfair to the appellant Satrughan to hold anything less than that when he threw the stone the Digwar was already dead; in which case no offence whatever was committed by him. The result therefore is that with regard to Satrughan I also agree with my learned brother that he should be acquitted and released from custody.
V.S/R.K
33. Order accordingly.