Meredith, J.:— This is an appeal by 12 persons who have been convicted and sentenced under, various sections of the Penal Code by the learned Additional Sessions Judge, Bhagalpur, in connection with a case of rioting which occurred on the afternoon of the 25th of October, 1944, in village Bahadur Singh Chakla Dakhinwari situated within the jurisdiction of Madhipura police-station and five miles from the thana headquarters. Thirteen persons were on trial before the learned Judge, but one was given the benefit of the doubt, as his name did not appear in the First Information Report.

Of the appellants Nageshwar Singh has been convicted under section 302 of the Penal Code for the murder of one Shivadhin or Shivadhari Singh, and has been sentenced to transportation for life. He has further been convicted under section 148 of the Code, and sentenced to three years' rigorous imprisonment to run concurrently, and he has also been convicted under section 326 of the Code read with section 149 but without separate sentence.

The appellant Udit Narain Singh has been convicted under section 326 of the Code read with section 109, and sentenced to seven years' rigorous imprisonment. He has also been convicted under section 326 read with section 149, and sentenced to five years' rigorous imprisonment, and under section 147 of the Code and sentenced to two years' rigorous imprisonment. All these sentences are to run concurrently.

The appellant Laldhari Singh has been convicted under section 147, and sentenced to two years' rigorous imprisonment, and under section 326 read with section 149, and sentenced to three years' rigorous imprisonment. These sentences are to run concurrently.

The appellants Dasrath Singh, Acho Singh and Kishori Singh have been convicted under section 148 and sentenced to three years' rigorous imprisonment, and under section 326 read with section 149 and sentenced to five years' rigorous imprisonment. Here again the sentences are to run concurrently.

The remaining appellants, namely, Ramdhari Singh Jamuna Singh, Kedar Singh, Fulo Singh, Kokai Singh and Saudagar Singh have been convicted under section 147 of the Code and sentenced to two years' rigorous imprisonment, and under section 326 read with section 149 and sentenced to five years' rigorous imprisonment, here again the imprisonment being made concurrent.

The prosecution case was as follows. In 1343 Fasli (1936) Munshi Mandar (p.w 6) took a nine years lease by a registered kabuliat of about 56 bighas of land in the village mentioned. He appointed the murdered man Shiyadhin to look after his cultivation and besides a small monetary remuneration gave him 4 bighas of land to cultivate on batai. This four and a half bighas comprised two plots, one of 3 bighas and one of 1¼ bighas, the last mentioned plot being survey plot 91. The term of the kabuliat expired on the 2nd of September, 1944, nearly two months before the occurrence, but there was an understanding with the landlord that Munshi Mandar could hold over, and in fact according to the prosecution he and his bataidars had held over and continued to cultivate. In plot 91 Shivadhari in the month of Asarh had grown paddy upon 5 kathas, and in the month of Bhado kurthi upon 2½ kathas, the rest of the plot being left fallow.

The appellant Udit Narain Singh, like all the other appellants, who are either his relatives or gotias, is a resident of village Bishunpur lying one mile south of Bahadur Singh Chakla Dakhinwari. He is a substantial man, having 500 bighas of cultivation in Bishunpur besides lands in the village where the occurrence took place. The grazing in Bishunpur was poor, and consequently Udit Narain Singh was in the habit of sending his cattle to graze in Bahadur Singh Chakla Dakhinwari. (There either owing to the carelessness or the unscrupulousness of his cowherds the lands of Munshi Mandar were frequently grazed by the cattle. On the day before the occurrence four of his buffaloes damaged the crops of Munshi, and Shivadhin as his kamatia protested, beat the cattle, and threatened the cowherds if such a thing happened again. Next day, 8 or 10 buffaloes of Udit Narain's were brought there, and grazed the paddy crop of Shivadhin in plot 91. Shivadhin seized the animals in order to take them to the pound. Immediately an armed mob of 12 or 13 persons appeared, coming from the south with Udit Narain. Udit Narain many years before had one leg amputated above the ankle. According to the prosecution, he came riding on a horse and carrying a lathi. The rest of the mob, which comprised the other appellants, carried spear axes, lathis, and one of them, Kishori, bow and arrows. They came up to Shivadhin, and ordered him to release the cattle. An altercation ensued, and then Udit Narain gave the order to assault him. Thereupon all the members of the mob advanced towards the man, and Nageshwar drove his spear into his stomach, whereupon Shivadhin fell down. Shivadhin's two brothers, Gouri Shanker Singh (p.w 1) and Dhaneshwar Singh (p.w 4) and also a cousin Anirudh Singh (p.w 2) were working in their fields close by. They came up and protested, whereupon the mob assaulted them also. Gouri was assaulted by Acho Singh, Jamuna Singh and Fulo Singh. Dhaneshwar was assaulted by Dasrath Singh, Ramdhari Singh and Kishori Singh, Kishori firing at least one arrow which struck him in the chest. Anirudh Singh was assaulted by Kedar Singh, Kokai Singh and Saudagar Singh. All these men received only simple injuries, though a number of the injuries were caused by sharp pointed or cutting weapons. The arrow injury in Dhaneshwar's chest was in no way serious, being only three-fourths of an inch deep.

After the assault the mob went away, taking with them the buffaloes. Gouri arranged to have Shivadhin carried to the police-station, but on the way he expired. The post mortem examination subsequently disclosed that the spleen had been slightly damaged by the spear, and the stomach had been perforated leading to some of its contents emerging into the body cavity. Death in the opinion of the doctor was due to shock and haemorrhage resulting from the wounds. There were no other injuries on Shivadhin's person.

Gouri lodged his First Information at 5 p.m, and in it he told the complete story as I have just narrated it, and mentioned the names of all 12 appellants. At the trial he gave evidence to the same effect, and his evidence was supported by that of three other eye-witnesses, namely, Anirudh Singh (p.w 2), Dhaneshwar Singh (p.w 4) already mentioned and also another cousin Sarjug Singh (p.w 5) who said he happened to be passing by that way to his own village, and saw the occurrence. In addition, Munshi Mandar (p.w 6) gave evidence that though he did not see the actual occurrence he heard the outcry, and he saw the mob going away. He recognized Udit Narain on horse back and ten others of the appellants.

The Sub-Inspector visited the village in the course of his investigation, and he has given very important evidence. When he inspected the alleged place of occurrence he found blood-like marks on the earth, kurthi plants and grass in the fields scattered over an area of about ten square yards partly on the ridge of the field and partly on that portion of it over which kurthi crop stood. Near about the kurthi crop and over the area on which he found blood-like marks he found numerous marks of trampling. There was a footpath running through the field, and on the southern portion paddy was standing. He found the paddy crop to the south of the footpath grazed at two places, one on the south-western side and the other on the western covering an area of about 25 square yards in all. He also found numerous hoof marks of cattle in the grazed portions of the paddy field. In another paddy field at a distance of about 50 yards to the north-west of this grazed field he found marks of grazing covering an area of about 10 square yards. He prepared a sketch map showing all these grazed areas. According to Grouri the last mentioned was the place where the grazing had been done in Munshi Mandar's field the day before the occurrence. The Sub-Inspector sent off to the Chemical Examiner the earth which he had scrapped up, as it appeared to be blood-stained, and also an arrow which had been picked up at the spot and made over to him. The Chemical Examiner found blood both upon the earth and upon the arrow, and the report of the Imperial Serologist was to the effect that the blood was human blood.

The appellants put forward no positive case. They did not attempt to explain how in fact Shivadhin had been killed if he was not killed in the manner alleged by the prosecution, nor did they examine any defence witnesses. They contented themselves with criticising the prosecution case and the evidence on various grounds. In the first place, they contended that neither Munshi Mandar nor Shivadhin were in possession of the leased land. This theory seems to be based merely upon the fact that the term of the kabuliat had expired before the occurrence. In fact, however, the contention does not merit serious consideration. In argument before us it was suggested that the old tenants of the land, who had been sold up for arrears of rent years before, were in possession, and it was sought to put in certain receipts before us as additional evidence to establish that fact. If such receipts were genuine and had been in existence at the time of the trial, there was no good reason why they should not have been put in evidence then. We, therefore, considered that there were no grounds for allowing the application. In fact, a perusal of the written statement, which is a lengthy one, shows that at the trial the appellants never suggested that the old tenants were in possession. They, never referred to the question of what persons were in possession, much less mentioning any names. Nor, as I have said, was any evidence whatever led to establish the contention, though it would of course have been quite easy to examine the landlord if there was anything in their case that Munshi Mandar had not held oyer. Moreover, if there had been any dispute between Munshi and the old tenants one would expect if a false charge were brought it would have been brought against those old tenants, and not against the appellants. The crops which stood upon the land cannot but have been grown by Munshi Mandar and Shivadhin, because they were sown in July and August before the expiry of the kabuliat at a time when certainly other persons would not have been allowed to grow crops upon the land. I am satisfied that the crops had been grown by Shivadhin and Munshi, or his bataidars.

Secondly, the prosecution case was challenged on the ground that the witnesses were all interested. It is a fact of course that all the eye-witnesses were connected with the murdered man. That, however, is not a ground in itself for rejecting their evidence, and in fact these witnesses are very strongly corroborated by what the Sub-Inspector found on the spot and also by the medical evidence. The point most strongly urged for the defence was that the Rajputs of Bishunpur were divided into two parties. There had been constant cases between these parties, and Shivadhin belonged to the party which was opposed to Udit Narain who himself was the leader of the other party. A number of judgments were put in to establish that there had been previous cases, and it was suggested that the case against the appellants had been got up by the members of the opposite faction, and if the witnesses were not members of that faction they had been got at. The circumstances, however, do not at all support this theory. Gouri Singh was closely questioned on the point, and he said that four or five years back the Rajputs of Bishunpur were divided into two parties. Udit and his brother Jagat were the leaders of one party and the other party was led by the sons of Debi Prasad and Tarni Prasad. But he added that about four or five years ago the differences between the parties were settled, and there had been no bad feeling in recent years. Moreover, when there had been party faction he was in the party of Udit. There is nothing on the record to contradict Gouri's statement that he had been a member of Udit Narain's party. He stated very emphatically that while 4 or 5 years ago there used to be cases frequently between the two parties, he was always in the party of Udit. Mr. Sri Narayan Sahay, who has argued the case for the appellants, referred to a judgment put in which one Pampal Gope had been complainant and he contended that this showed that Gouri was not in the party of Udit. Gouri had said that one Pampal Gope had brought a case against him and Dhanu Singh about four years back, but he said Pampal was never a servant of Udit. A perusal of the judgment in question supports his evidence, because it appears that the defence in that case was that the complainant Pampal was breaking the common ridge between the field of Buchi Babu which he (Pampal) had cultivated and the accused's field. Admittedly Buchi Babu belonged to the party opposed to Udit Narain. It would follow from this that Pampal must also have been in that party, and consequently his opponents, Dhaneshwar Singh and Gouri Singh, must have been in Udit's party. Apart from this, Mr. Sri Narayan Sahay concedes that he has no evidence to show that there has been any case between the parties within the past 4 or 5 years.

It has not, therefore, been established that the witnesses though connected together have any reason for animus against the appellants apart from the present occurrence. Moreover, the circumstances of the case indicate that there could hardly have been any opportunity for the members of the opposite faction to get at them before they made their statements. The First Information was lodged very promptly, and it appears from the evidence of the Sub-Inspector that he forthwith examined Anirudh Singh, Dhaneshwar Singh and Munshi Mandar at the police-station, as they had gone there with Gouri. Thus, the statements of all were promptly taken down, and had they changed their story in Court they would certainly have been contradicted by their statements before the police. It appears to me that there was no opportunity for the opposite party to manipulate the evidence in this case even if we assume that they desired to do so.

Further criticism was that it was mentioned in the First Information that a number of villagers had come up who were named, but they were not examined. Gouri had said that on the alarm raised, Munshi Mandar, Bunilal Mandar, Soukhi Hajam, Saleswar Singh, Sarjug Singh, Medni Singh, Thakur Mandar and others had come up, and saw the occurrence. Of these, Munshi Mandar and Sarjug were examined. Munshi stated that Bunilal Mandar was on bad terms with him, and Gouri explained that Saleswar Singh, was an uncle of the accused Nageshwar Singh; Medni Singh was an uncle of the accused Kokai Singh, and Thakur Mandar was a debtor of the accused Udit Narain Singh. This evidence was not contradicted, and it, therefore, appears that a good explanation was given for the non-examination of all the persons mentioned with the solitary exception of Soukhi Hajam.

It was further contended for the defence that the motive was inadequate, and the story improbable. I can see no improbability in the story. Mr. Sri Narayan Sahay argues that in cases like this when a man is killed the mob always runs away, and, therefore, the witnesses could not have been assaulted after the assault upon Shivadhin as they say. What he suggests does frequently happen, but it cannot be asserted that necessarily it always happens. If the witnesses came up and protested, it is quite natural that the members of the mob, who had the cattle to take away and would hardly run away leaving them, would take action against the witnesses. It was further suggested that the witnesses could not have seen the occurrence owing to intervening rahar crops. With the exception of Gouri, however, none of the witnesses claimed to have seen the actual grazing. They said they ran up on hearing the outcry, and then saw the cattle and what was going on. As for Gouri himself, he did say he saw the grazing, but it was not clearly established that Gouri was in a position from which he could not have seen it. With regard to the motive, here was a case of a little man threatening the cowherds of a big man, and trying to take his cattle to the pound. It seems to me that the motive was quite adequate.

Having carefully considered the evidence I have formed the opinion that this case is a true one. I can find no reason for not accepting the evidence of the eye-witnesses, corroborated as they are by what the Sub-Inspector found. All the appellants were named in the First Information lodged very promptly, and each one of them has been identified by all four eye-witnesses. It is not at all unnatural that Udit Narain Singh himself would have led the mob to the place. The fact that he had only one leg—I should perhaps say one foot—would in no way prevent him from riding a horse as he was alleged to have done. The Sub-Inspector testifies that when he went to Udit Narain's house he found a horse tied there, and he also found large number of cattle pegs, though significant enough there were no cattle. I consider all the appellants have been rightly convicted, and the questions which remain are, what are the proper sections applicable, and are the sentences just.

There can be no question with regard to Nageshwar Singh. His conviction for murder is certainly correct, and the sentence of transportation for life was the least sentence which could have been imposed. Mr. Sri Narayan Sahay with regard to the rest has strongly argued that the circumstances do not justify the application of section 326 read with section 149. Two questions arise, whether the facts justified the application of that section, and, secondly, whether it could be legally applied, the principal offender having been convicted under section 302. On the first point Mr. Sri Narayan Sahay urges that no one at all touched Shivadhin except Nageshwar, and though deadly weapons were used against the other persons injured they were certainly used with moderation, since no serious injuries were caused. The act of Nageshwar, he says, was an isolated act, and cannot be regarded as having been done in prosecution of the common objects of the mob, which, as they were specified in the charge, were to assault Shivadhin and to rescue the cattle. He urges that if section 149 be applied at all it should only be in conjunction with section 323.

I am not prepared to accept these contentions. It seems to me that when a mob sets out armed with numerous deadly weapons including spears, axes and bows and arrows, with the deliberate intention of assaulting a man, each member of the, mob must be taken to have realised that in prosecution of the common object it was likely, may almost certain, that at least grievous hurt, which is the natural result of the use of such weapons, would be caused. The words used in section 149 in the second part are:

“such as the members of that assembly knew to be likely to be committed in prosecution of that object (the common object).”

Can it possibly be said that people who go to assault with such weapons do not know that grievous hurt is a likely result? That is, in my judgment, putting the matter at its lowest, and I think that in such a case section 326 at least is applicable, provided grievous hurt is actually caused. It is true in the present case that after Shivadhin had been speared, no one else touched him, but it must have been obvious to every member of the mob from the nature of the spear wound that he had in fact received a mortal injury and nothing further was necessary to carry out their object. Certainly they used moderation in assaulting the persons who came up, but no doubt by that time they were affected by fear of the consequences of what they had already done, and their anger and excitement must have consequently abated.

There remains the legal question. Ever since the decision of Varma and Rowland, JJ., in 1935 in Bhagwat Singh v. King-Emperor it has been, so far as I am aware, the uniform practice of this Court in suitable cases to convict the members of a mob of lesser offences than that which may have been committed by the principal. Bhagwat Singh's case, so far as I know, has been uniformly followed. But quite recently doubt has been cast upon its correctness by a decision of Shearer and Pande, JJ., in Ramcharan v. King-Emperor. There it has been held that when a member of an unlawful assembly is to be found constructively guilty of an offence under section 149, it must be the same offence of which the principal is guilty and not some other offence. And where the principal offender is convicted of murder, the others who are found guilty under section 149 must also be convicted of murder, and a lesser punishment than transportation for life cannot be imposed upon them.

Mr. Sri Narayan Sahay, as I have said, has not asked us to follow this ruling and to set aside the convictions under section 149 altogether upon the legal ground. He has merely asked that if we do think that section 149 is applicable it should be read with section 323.

Having regard to the numerous cases in this Court in which the decision in Bhagwat Singh's case has been followed and also having regard to the observation of Pande, J., at page 780, I do not consider myself bound to follow Ramcharan v. King-Emperor if I do not think it correct. What Pande, J., said was: “The question whether other members of an unlawful assembly are liable for an offence different from that actually committed by one or more of its members in the course of the occurrence does not seem to arise directly for decision of this case. It, however, arises incidentally………That being so, the observations were obiter.

Speaking for myself, with the greatest respect, and with some hesitation, I think the argument of the learned judges proceeded upon a fallacy, the fallacy being that murder and assault are mutually exclusive, and that if one holds that murder has been committed by the offender one must necessarily also hold that none of the lesser offences against the person have for that reason been committed in law though they may have been committed in fact. I agree that the prerequisite for constructive conviction for any offence under section 149 is the commission of that offence by some member of the unlawful assembly. But in a case like the present I see no difficulty in holding that the lesser offences of hurt and assault were also committed. If a man commits murder by beating a man to death, can it be said with reason that assault and hurt have not also been committed? I think not. These are not mutually exclusive offences, but the lesser can be and frequently are included within the greater. True, in such a case the murderer is not convicted for any lesser offence, for obvious reasons. But section 149 does not say that there must have been any substantive conviction of the principal before other members can be constructively held guilty. It merely lays down that the offence for which they are convicted must have been committed. In my judgment, once the court can find that an offence has been committed by some member or members of the unlawful assembly in prosecution of the common object, then whether the principal offender has been convicted or not upon the plain wording of the section the other members may be constructively convicted of that offence, provided they are found to have had the necessary intention or knowledge. I can see no legal bar in the present case to the maintenance of the convictions under section 326 read with section 149, and they were, moreover, in my opinion, justified.

I turn now to the question of sentence. The sentence upon Udit Narain, which amounts to seven years, was not, in my opinion, unduly severe. He was the man primarily responsible for the whole occurrence, the leader and the man who ordered the assault. In his case I see no ground for reducing the sentence.

With regard to the rest, taking into consideration the fact that none of them actually touched Shivadhin I think a sentence of two years' rigorous imprisonment under section 326 read with section 149 is sufficient. I would reduce their sentences accordingly, and the result will be that in the case of those who have been convicted also under section 148 the total sentence will be the three years imposed under that section, while in the case of those sentenced to two years under section 147, having regard to the other sentence being reduced to two years, two years will be the total imprisonment.

Subject to these modifications of sentences I would dismiss the appeal.

Bennett, J.:— I agree, and I would add the following observations. Our attention has been drawn to two cases, ‘Ram Prasad v. King-Emperor and Ramcharan v. King-Emperor in which it appears to have been held that where the principal offender in a case of rioting has been convicted of an offence the others cannot be held to have committed constructively another offence different from the offence found to have been committed by the principal offender. In a case where both the offence of which the principal offender is convicted and the other offences of which the other offenders are convicted are all found to have been committed in prosecution of the common object of the unlawful assembly I think that those decisions are right. To hold otherwise would be to find that different members of the same unlawful assembly had two different common objects. That may not be impossible, but in such a case the matter for the purposes of section 149 of the Penal Code must be treated as if there were two separate assemblies.

But in my respectful opinion those decisions have no application to a case where the act or acts which constitute the offence of the so called principal offender are either altogether outside the common object of the assembly, or though done by him in purported prosecution of that common object, yet go beyond and exceed the common purpose.

Thus, if seven persons set out, apparently unarmed and without any intention of causing hurt, to kidnap another and in the course of the kidnapping, one of them, enraged by the resistance of the victim, draws a revolver which he had concealed upon his person and kills the victim, he as the principal offender, would properly be charged with and convicted under section 302 of the Penal Code. The remaining offenders in such a case would properly be charged with and convicted of attempted kidnapping whatever their actual individual activity. In such there were doubt as to the identity of the killer it would be proper also to charge and convict the supposed principal offender of attempted kidnapping.

Similarly, if it is clear that the common object of an unlawful assembly was to inflict no more than a particular grievous hurt upon another person in circumstances where death was not the likely consequence and one of the members of the assembly, for purposes of his own, and in the course of inflicting the particular grievous hurt, deliberately went beyond the common object and killed the victim the killer would properly be charged with and convicted of murder, and the remaining members of the assembly with inflicting grievous hurt. Again, in such a case, if the identity of the killer were in doubt it would be proper also to charge and convict the supposed principal offender with inflicting grievous hurt.

In the case of each of the accused other than the principal offender, and in the alternate in the case of the principal offender, the Court in such a case has to ask itself two questions, namely, whether the particular accused was a member of the unlawful assembly with a particular common object, and, secondly, whether in prosecution of that common object the offence alleged against that accused was committed, by him or by one of the other members of the assembly. In the last instance above given the Court would be bound to answer both those questions in the affirmative. It cannot seriously be argued that the causing of death does not fulfil the definition of “grievous hurt”. In so far as the principal offender has committed grievous hurt, the common object of the assembly, the other members thereof must also be held constructively to have committed that offence. In so far as the principal offender has committed murder and so gone beyond the common object, he and he alone is responsible.

The wording of section 149 of the Penal Code when applied, as it must be to the case of each individual accused appears to me to be perfectly straightforward. In this case the learned Additional Sessions Judge has convicted the principal offender, the appellant Nageshwar Singh, both under section 302 of the Penal Code and under section 326 read with section 149, and has convicted the remaining appellants under section 326 read with section 149. He has stated his reason for this latter decision as follows:

“As regards the charge against all the accused under section 302/149 I.P.C, each case has to be judged on its own merit. Following the case of Bhagwat Singh v. King-Emperor and the unreported case of Sidhu Gope v. King-Emperor (Criminal Appeal no. 183 of 1945) from my own judgment which has recently been decided by a Division Bench of the Patna High Court, I find that it is not a case in which the accused can be held guilty under section 302/149 I.P.C, but surely they will be guilty under section 326/149 I.P.C”

The decision of this Court in the case cited, namely, Bhagwat Singh v. King-Emperor, as expressed in the judgment of Rowland, J., clearly turned upon its finding that there was no common object to commit murder and that the members of the unlawful assembly there in question could not have been taken to have been aware that a greater offence than the causing of grievous hurt was likely to be caused. The learned Additional Sessions Judge must, therefore, be taken to have come to a similar conclusion in this case in regard to the intention and knowledge of the members of the unlawful assembly here in question.

The facts in the case of Bhagwat Singh v. King-Emperor were at least as strong against the accused as they are in this case, and he, therefore, had a strong precedent for what is after all an inference of fact.

I have no doubt that the accused in this case must be taken to have been aware that at least grievous hurt would be likely to result in the prosecution of their common object. Once the case for the prosecution is accepted in substance and, for the reasons given by my learned brother, I think it must be accepted, it is clear that the convictions under sections 147 and 148 respectively of the Code must stand. It is equally clear that the appellant Nageshwar Singh was properly convicted under section 302 of the Code. I am, therefore, of opinion that all the convictions should be confirmed.

In a case of this kind where a, large Dumber of men are involved and the larger degree of responsibility rests upon those amongst them who instigated the assembly and who were foremost in carrying out the common purpose and where it seems clear that there was no express common intention to cause death, I do not think that the ends of justice necessarily demand long deterrent sentences of imprisonment upon those members of the assembly who took only a minor part in the prosecution of its common object, and I, therefore, agree to the reduction in the sentences proposed by my learned brother. I also would dismiss the appeal.

Appeal dismissed.

K.D

Sentences reduced.