1. The appellants Ghulam Husain, Fida Hussian Raza Husain and Maqbul Husain are the brothers of one Musammat Chanda prostitute. They were charged under S. 304 of the Indian Penal Code with culpable homicide in causing the death of one Sukha. The learned Sessions Judge on the supposed authority of Emperor v. Bhola (1) has altered the charge to one under S. 325 and with the concurrence of the assessors as regards three of the accused has convicted them under that section. As regards Raza Husain the assessors appear to have been impressed by an alibi which he put forward but I agree with the learned Sessions Judge that the evidence in support of this alibi is of no value.
2. It is common ground that there was considerable previous ill-feeling between Mst. Chanda and her brothers on the one side and Sukha and the principal witness Inayet Tllah on the other.
3. Three days before the present occurrence a youth named Tajju who belonged to the party of the deceased had been ??? by the other party near Chanda's house and a report had been made about it. On the day in question, 5th November 1922, Inayet Ullah and Sukha, according to the prosecution evidence, were passing Musammat Chanda's house. The four accused were there and Musammat Chanda incited them to attack the deceased and his companions, which they did. It is probable that there was some previous exchange of abuse or verbal quarrel which Inayet Ullah has suppressed in his evidence. However that may be, Inayet Ullah was attacked and very badly beaten. The medical evidence shows that he had at least 12 different injuries, the first and most serious of which was on the head. His companion Sukha received injuries of which he died in hospital four days later. The vault of the skull was extensively fractured and broken into 5 or 6 pieces as the result of one or more lathi blows. There were four other marks of injury on different parts of Sukha's person. The only injury sustained by any of accused's party was a contusion on the left temple and a black eye on the person of Ghulam Husain. Besides the evidence, of Inayet Ullah the prosecution case is supported by three other witnesses who saw the accused beating the deceased and his companion. The story put forward on behalf of the accused and supported by three witnesses is that one Munna came from the toddy shop near by, abused Musammat Chanda and threatend to cut off her nose and to beat her brothers. Three of the accused beat him and drove him back to the shop. He then returned with five other persons including Sukha and Inayet Ullah, all armed with lathis. Inayet Ullah slapped Musammat Chanda and on Ghulam Husain remonstrating, hit him on the head knocking him down. Two of his brothers then came out and a fight ensued between them.
4. I should have been glad of a little more assistance from the learned Judge in the way of detailed comment on the evidence, but I agree with the conclusion at which the learned Judge has arrived that the prosecution evidence is to be preferred to that of the defence. The latter is obviously difficult if not impossible to reconcile with the medical evidence. The witnesses who support the prosecution story apart from Inayet Ullah are independent witnesses against whom no ground for partiality is established. The suggestion made on behalf of the accused to account for the complainant's party having received some 18 injuries one of which proved fatal as against two small injuries sustained by Ghulam Husain is that Sukha and Inayet Ullah were drunk. No question on this point was put to the Doctor who admitted them to hospital and the only evidence which goes in any way to support the story is a statement elicited in cross-examination from the head constable Asfandyar Khan who recorded Inayet Ullah's report. The learned Judge does not refer to this evidence but I cannot help feeling strong doubt as to the truth of the assertion. In the first place, no note of it was made at the time of recording the report and a man who was really drunk could hardly have dictated the detailed report which was made by Inayet Ullah at the time.
5. I am not sure the learned Judge correctly appreciated the law as regards the liability of several accused who jointly attacked the same person and inflicted fatal injuries on him. The learned Judge refers to the case of Emperor v. Bhola but the judgment in that case has to be read in the light of a more recent case in Emperor v. Ram Newaz (2). If several persons jointly attack the deceased with lathis fracturing his skull and inflicting a number of other injuries they are all equally guilty even though it may not be possible to prove which of them actually inflicted the fatal below. In the present case it was quite unnecessary for the learned Sessions Judge to have altered the charge. It is however unnecessary for me to alter the conviction as no application in revision is before me and an offence under S. 325 was certainly committed. For the reasons already given I dismiss the appeal or all four accused.
6. Appeal dismissed.