1. Eleven persons who are all privates of the King's Regiment stationed at Jubbulpore were tried by jury in the Court of the Sessions Judge, Jubbulpore, for rioting in the course of which some of them were alleged to have committed arson, indecent assaults on women and to have violently attacked an individual with fatal consequences. They were Thomas Byrne, George Henry Archbold, George Swanson, John Alphonsus Eustace Burke, James Dowdall, John Hanoook, William Murtagh, Ernest Thorpe, George Thomas King, Albert Bates and Michael Joyce. The jury returned a verdict of not guilty in favour of Ernest Thorpe but guilty against Swanson under S. 148, I.P.C, and against each of the rest, guilty of rioting punishable under S. 147 and, additionally against Byrne and Murtagh, guilty under S. 354, I.P.C, against Archbold guilty under S. 436 and Dowdall guilty under S. 302 read with S. 149 and S. 34, I.P.C The learned Sessions Judge accepted the unanimous verdict of the jury and directed acquittal of Thorpe and convicted each of the rest of the respective offences on which the jury had found him guilty and sentenced Dowdall to penal servitude for life and two years' rigorous imprisonment, to run concurrently, and others to various terms of imprisonment. The prisoners have preferred separate appeals and this judgment governs the disposal of all of them.
2. The case for the prosecution is that on Wednesday 17th July 1935 private Kennedy of the King's regiment was severely handled by some Indians at village Karondi. The particulars of the incident are immaterial except in so far that it evoked considerable resentment among the soldiers of the Regiment who freely discussed it that evening and the following day with the result that they concerted a plan to raid the village in retaliation for assault on Kennedy. The soldiers who intended to take part in that raid assembled close behind the butts of rifle range, all or most of them were armed with sticks, Swanson alone carrying a bayonet and a hatchet. The party which was 50 or 60 strong marched out to the village of Benda, which they mistook for Karondi, on the evening of Thursday 18th July 1935. They invaded the village breaking chattis, attacking houses and people with the result that some villagers, especially Dulare sustained injuries. Some attempted to set one or two houses on fire and actually set the roof of P.W 11 Raghunath's house on fire. Some others attacked a cyclist Korai P.W 9 and smashed his machine and again some others attempted an indecent assault on women by pulling off their saris and exposing their persons. Finally there was a violent attack made on one Bidhata who succumbed to the severe injuries inflicted on him. This man who was coming along with a party of villagers was stopped by the soldiers coming out of the village and one of them gave a blow on the left side of his neck. As he and his party proceeded some of the soldiers seized Bidhata's daughter Mt. Pyari P.W 13 and belaboured him when he tried to rescue her. The prosecution alleged that Swanson had been armed with a deadly weapon, a bayonet, that Byrne, Burke and Murtagh had outraged the modesty of women and that Arohbold had set fire to a house, and lastly that Dowdall, Swanson and Joyce had been particularly concerned in the death of Bidhata, either because they had actually joined in the attack on him or because they had been amongst the party of more than five persons round him, so that they were constructively responsible for Bidhata's death which ensued. The learned Sessions Judge delivered an elaborate charge to the jury which substantially, though not wholly contained a full and clear exposition of the law relating to the offences and summed up all the evidence for the prosecution and the defence with pertinent and apposite comments.
3. The learned counsel for the appellants has sought to assail the propriety or legality of the Judge's charge to the jury from every conceivable angle of attack. We may in general observe that it is impracticable to set forth every bit of evidence on either side to the minutest detail and dilate on the minor discrepancies or contradictions occurring in the evidence in the meticulous manner suggested by him. We think it is idle to stress unduly the multitude of discrepancies and contradictions which are bound to creep into the evidence of persons who observe the incidents happening in the village one after another or in different places at the same time and that too in an atmosphere of excitement and terror caused by the suddenness of the attack.
4. We shall now deal with the broad points in the case which have a vital bearing on the ultimate decision out of a large number which the learned counsel for the appellants sought to press in the course of his argument. At the outset we shall deal with the important point which has a bearing on the power of this Court sitting as a Court of appeal against convictions founded on the unanimous verdict of the jury. The case arises under Section 419 of the Cr PC, which occurs in Ch. 33, containing special provisions relating to the cases in which European British subjects are concerned. Ordinarily under Section 418 of the Cr PC, an appeal from a conviction in a trial by jury is restricted to matters of law only. In such cases, as provided in Section 423(2) of the Cr PC, the appellate Court is not authorised to alter or reverse the verdict of the jury unless it is found to be erroneous due to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him. These limitations on the powers of the appellate Court are removed by Section 449 of the Cr PC, which clearly provides that notwithstanding anything contained in S. 418 or S. 423(2) or Letters Patent of any High Court an appeal may lie to the High Court on a matter of fact as well as on a matter of law. The terminology is so clear and definite that there is hardly any room for entertaining any uncertainty about the plenary powers of the High Court. It cannot, with due conformity to the Saw so clearly worded, refuse to entertain an appeal on a matter of fact notwithstanding that the Jury's verdict is unanimous and concurred in by the Judge. Nevertheless, the powers, unrestricted as they are, must be exercised in accordance with the well recognised principles governing appeals in general. The learned counsel for the appellants particularly invites our attention to the case 6 Lah 98 1925 Lah 401 , 88 IC 857 , 26 Cr LJ 1241 , 6 Lah 98 which arose on a reference made by a Sessions Judge under Section 307 of the Cr PC. The accused in that case, an Indian, was tried by a special jury under the provisions of Ch. 33, Code of Criminal Procedure, for the offence of bribery. The jury unanimously brought in a verdict of not guilty, but the Sessions Judge did not accept the verdict and referred the case under Section 307(1) of the Cr PC, to the High Court. Their Lordships of the Lahore High Court held, in view of the terms of Section 449 of the Cr PC, that the finding of the jury on a question of fact cannot be treated as final in a case arising under Ch. 33, Code of Criminal Procedure. It is however pertinent to notice that their Lordships made it abundantly clear at p. 103 that due weight must be given to the opinions of the Sessions Judge and the jury. What the attitude of the Court of appeal should be is clearly pointed out in 1935 AC 243 (1935) AC 243 , 104 LJ KB 304 , 152 LT 563 , 79 SJ 179 , 51 TLR 289 at p. 249 by such an eminent authority as Viscount Sankey, L.C “It is perfectly true,” His Lordship observes that an appeal is by way of re-hearing, but it must not be forgotten that the Court of appeal does not rehear the witnesses. It only reads the evidence and rehears the Counsel. Neither is it a reseeing Court. There are different meanings to be attached to the word ‘rehearing.’ For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out this case and call his witnesses. The matter is rather different in the case of an appeal to the Court of appeal. There the onus is upon the appellant to satisfy the Court that his appeal should be allowed.
5. Then His Lordship proceeds to indicate the difference between the manner in which the Court of appeal deals with a judgment after a trial before a Judge alone and a verdict after a trial before a Judge and a jury by saying that on an appeal against a judgment of a Judge sitting alone the Court of appeal will not set aside the judgment unless the appellant satisfies the Court that the Judge was wrong, but that on an appeal against a verdict if the evidence was such that no jury properly directed could reasonably have found a verdict in question the verdict so found will be set aside. Thus it is clear that while on an appeal against the finding of a Judge sitting alone the appellant has to satisfy the appellate Court that the Judge was wrong, on an appeal against a jury's verdict following on a properly directed charge the appellant has the burden of showing that the verdict is unreasonable. That ordinarily is the view which has been followed in India in dealing with the verdicts of juries: see 51 Mad 956 Veerappa Goundan In re, 1923 Mad 1186 , 114 IC 350 , 30 Cr LJ 317 , 55 MLJ 591 , 51 Mad 956 (FB), 8 Pat 74 1928 Pat 497 , 112 IC 363 , 29 Cr LJ 1035 , 9 PLT 683 , 8 Pat 74, 57 Cal 1183 1931 Cal 15 , 1931 Cr C 47 , 129 IC 798 , 32 Cr LJ 452 , 57 Cal 1183 and 5 Luck 720 1930 Oudh 334 , 1930 Cr C 524 , 124 IC 661 , 31 Cr LJ 719 , 5 Luck 720.
6. This has also been the established opinion of this Court as will appear from 22 NLR 42 1926 Nag 308 , 95 IC 309 , 27 Cr LJ 773 , 22 NLR 42, wherein the principle is enunciated to the effect that the High Court will interfere with the verdict of the jury only when it is obviously perverse or manifestly wrong or unreasonable. If when a Judge differs from a jury the jury's verdict must prevail unless it is shown to be unreasonable or perverse, and if on an appeal from the finding of a Judge sitting alone it must prevail unless it is shown to be wrong, there is no reason why the appellant's burden should be less onerous when he seeks to impeach upon appeal any finding which the Judge delivers in concurrence with the jury. It might indeed be said that the burden should be heavier to show that the jury's verdict was unreasonable or perverse and that the Judge's acceptance of it was wrong. Whether a Judge sits alone or with a jury he, in either case, has the” advantage of hearing and seeing the witnesses and forming his own opinion as to the weight on balance of their evidence. Since the law authorizes the Judge to differ from the verdict and refer the case to the High Court with his opinion it is but reasonable to postulate that the Judge is entitled to view the evidence in his own way uninfluenced by the opinion of the jury. The reasonable hypothesis on which the appellate Court should proceed would therefore be to treat the Judges' opinion as an independent one rather than one blindly following the verdict of the jury. The latter hypothesis would be totally repugnant to the recognized conception of the Judge's duty unless it is to be said either that the Judge has no duty to exercise his independent judgment on a matter of fact or that he is supposed ordinarily to surrender his independence to the jury. Both these assumptions are fundamentally unsound and contrary to considerations of propriety, reason and common sense. We may in this connection be on firm ground if we follow the principles laid down by their Lordships of the Privy Council in 56 All 645 1934 PC 227 , 1934 Cr C 1134 , 151 IC 322 , 61 IA 398 , 56 All 645, in respect of appeals against acquittals under Section 417 of the Cr PC. Their Lordships after making it clear that there is no limitation placed upon the power of the High Court in an appeal filed under Section 417 of the Cr PC, laid down the, principle which must be observed in dealing with the conclusions of the Court whose judgment is under review, in these words:
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused; (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing the finding of fact arrived at by the Judge by seeing the witnesses.
7. This as emphasized by their Lordships is only a restatement of the principles well known and recognized in the administration of justice in regard to the exercise of power by a Court of appeal. From the foregoing discussion we deduce the conclusion that upon an appeal from a conviction founded on a jury's verdict the proper way of approaching it is to assume that the findings of fact are correct and reasonable and lay the burden on the appellant of showing them to be otherwise. In other words, it means that the appellate Court in reaching its conclusions must give full weight and consideration to the unanimous opinions of the Judge and the jury. In the light of these principles we now proceed to leal with the main contentions raised on behalf of the appellants.
8. It is urged that on the main issue relating to the identity of the persons who took part in the rioting and the particular offences committed in the course of it, the only evidence was that of the approvers whose mutual corroboration without any independent evidence ought not to have been treated as sufficient for conviction. In a number of decided cases the testimony of one approver was held admissible to corroborate that of another: see 17 NLR 113 1921 Nag 39 , 69 IC 257 , 17 NLR 113, 8 Pat 235 1928 Pat 630 , 113 IC 329 , 9 PLT 672 , 8 Pat 235, 35 Mad 247 (1912) 35 Mad 247 , 14 IC 849 , 22 MLJ 490 , 13 Cr LJ 305, 9 Rang 404 1931 Rang 235 , 1931 Cr C 875 , 135 IC 849 , 33 Cr LJ 205 , 9 Rang 404 (SB) and 62 Cal 238 1935 Cal 513 , 1935 Cr C 889 , 157 IC 387 , 36 Cr LJ 1115 , 62 Cal 238 (SB). The Illus. (b) appended to S. 114 which says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars has never been and cannot be taken as overriding the plain provisions of Section 133 of the Evidence Act, which expressly states that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Much stress is laid on the view taken in 16 NLJ 186 1933 Nag 352 , 1933 Cr C 1451 , 146 IC 701 , 35 Cr LJ 213 , 16 NLJ 186 in which the evidence of one accomplice was not considered sufficient to corroborate the evidence of another. In that case there is a distinct remark at p. 189, viz., that the learned Judges who decided the case, were unable to hold that the evidence of the two youthful approvers was above suspicion. It was on that account that they declined to accept their testimony without corroboration. It is in every case a question of fact whether the evidence of the approver or approvers is acceptable or not if the accomplice's testimony carries conviction to the mind of the Judge as to its truth on its own intrinsic merits there is, in reality no need for any corroboration. In cases tried by jury it is invariably the practice to caution the jury of the danger of convicting upon an uncorroborated testimony of an accomplice or accomplices: see 2 KB 680 (1908) 2 KB 680 in England. This is also the invariable rule in India. If the jury is cautioned by the Judge the verdict cannot be set aside for the simple reason that there is no independent corroboration of an accomplice's testimony. In the present case the learned Sessions Judge expressly warned the jury in these words:
At the same time it is an invariable rule of practice, both in England and in India that the Judge should warn the jury about the danger of convicting on the uncorroborated testimony of an accomplice. It has been held that there is a radical defect in the charge where a Judge omits to give this warning. I therefore do warn you accordingly.
9. In view of the caution conveyed in such clear and unequivocal terms we cannot possibly hold that there was any error in the learned Sessions Judge's charge to the jury. It is next urged that the evidence of the approvers was unreliable on account of some pressure brought to bear on them by the military authorities and that they mentioned the particular names to save their own skins, or friends, and also to please their superior officers. It is also contended that the story related by them was the outcome of collaboration. All these points were put to the jury in detail and the appellants can have no ground of complaint against the learned Sessions Judge's charge to the jury. It is true that some sort of what the learned Sessions Judge describes as a “mild third degree method” was employed but this circumstance will not make their evidence inadmissible as if it were a confession. We are unable to see why the approvers would concoct a false story and implicate innocent persons, in the absence of some evidence to show that they bore any grudge against the particular persons whose names they mentioned. The pressure, if any, was brought to bear on the approvers to give a full and true account of the facts and not to induce them to give a false story. In the absence of very clear and positive evidence to indicate any motive on the part of the approvers to perjure themselves against their fellow soldiers, it must be held that they have correctly named the participants. It is not denied that the approvers themselves were present and participated in the crime. If so, they must naturally have witnessed what was done there and who were doing it.
10. After considering the approvers' evidence we are unable to find that the jury's verdict was either wrong or unreasonable. We therefore believe the approvers not only in regard to the events of that evening in general but also in regard to the identity of the particular persons who participated in them. It is next urged that the raid on the village occurred late in the evening and in cloudy weather and that consequently the visibility was very poor. This point also was prominently pressed on the attention of the jury in these words:
You will remember the statements of the various witnesses as to whether lamps were or were not lit and whether they could see clearly or not. You must draw your own conclusion.
11. When such a clear direction is given by the Judge to the jury they must be deemed to have given their close consideration before accepting the word of those witnesses who said that inspite of the dusk and the wet weather they were able to identify the persons. We have carefully examined the evidence of Blundell (P.W 3), Shore (P.W 4), Thompson (P.W 5), Gopal (P.W 6), Dulare (P.W 8), Raghunath (P.W 11), Owen (P.W 14) and Madhu (P.W 27) bearing on the point of visibility and we find no reason to differ from the opinions of the learned Judge and the jury.
12. That all the appellants were participants in the raid has been clearly proved by the evidence of the approvers. The charge to the jury indicates the evidence produced against each of the accused as also that relating to the pleas of alibi. Respecting this part of the case a point is made by the learned counsel for the appellants disputing the admissibility of the evidence given by the City Superintendent of Police (P.W 34) to the effect that when he examined the accused persons in the course of the investigation Archbold, Swanson, Dowdall and Hancock had not set up the story of alibi at the barracks. We see considerable force in this contention. Although any non-confessional statement made by an accused person to the police, as held in ??? NLR 180 (1910) 6 NLR 180 , 8 IC 1181 , 12 Cr LJ 60, can be proved against the accused, still we are of opinion that when such statement forms part of whole narrative given by the accused person it ought not to be torn from its context.
13. If the narrative as a whole was in the nature of a confession the particular statement must incriminate the accused when read with its context. The prosecution ought not to be permitted to single out of a confession some stray passages containing the admissions of an accused against his own interest. The learned Sessions Judge relied on 37 Cal 467 (1910) 37 Cal 467 , 7 IC 359 , 11 Cr LJ 453 and 49 Cal 167 1922 Cal 342 , 62 IC 578 , 22 Cr LJ 562 , 25 CWN 788 , 49 Cal 167. In the first mentioned case the statement as a whole was admitted as it was found that it did not amount to a confession. In the last mentioned case a part of the confessional statement was no doubt admitted but it was because that statement led to the discovery of certain material facts and was therefore admissible under Section 27 of the Evidence Act. No other authorities have been brought to our notice. In our opinion a statement which is inadmissible, being a confession, cannot be dissected so as to make its parts admissible to support the prosecution. Any rule to the contrary would be unsound in principle and highly unjust in practice. As the evidence of the City Superintendent of Police presumably influenced the jury in weighing the evidence pertinent to the defence of alibi, we think it obligatory on us to review the evidence.
14. Archbold examined Kennaugh (D.W 6), Brogden (D.W 7) and Murphy (D.W 16) to prove that he was witnessing football match from 5-30 to 6-30 p.m and that he was in the barrack room for half-an-hour afterwards and then went to the canteen. The first two witnesses denied having seen Archbold at the match and the last one who tries to support him is thoroughly broken down in cross-examination. Swanson examined Wakefield (D.W 8) ??? Fortune (D.W 9) to prove that he as at the swimming bath from 5-45 to 45 p.m They say nothing to the point ad their evidence is totally worthless, ??? (D.W 24) who had been called by ??? to prove his presence in the ??? bath between 6 and 7-30 p.m ??? to Swanson in his cross-???, but he is contradicted by Maries (P.W 25). Such evidence is obviously no avail. Hancock and King gave no ??? in defence. The evidence adduced ??? Dowdall will be considered separately. We now proceed to examine the evidence ??? each accused individually. On ??? of Byrne and Murtagh who have sen found guilty of outraging the modesty: women the evidence of the approvers subjected to some criticism. The ??? bearing on the point was clearly ??? forth in the charge to the jury and. ??? evidence has been believed by the ??? as well as by the Judge. We have ??? nothing that is material to induce ??? to take a different view. Some ??? in the evidence bearing on the ??? of Archbold having set fire to ??? house are pointed cut. It ??? clear from the evidence of Raghunath (P.W 11) that there were two attempts ??? set fire to two houses. This is also ??? from the evidence of the City ??? (P.W 34). Consequently then Percy (P.W 2) speaks about two ??? having ??? to set fire to a house the entrance he clearly meant ??? His evidence considered along with the relative position of the two ??? as marked on the map filed in the ??? goes to support the evidence of Shore (P.W 4).
15. The evidence adduced by the ??? against Swanson is ample and cogent ??? the four approvers mention him as laving carried a bayonet. Jessop (P.W 6) actually saw Swanson leaving with a ??? that evening. It was clean and right when he left but was wet and ??? when he brought it back. On ??? given by Swanson himself dickers (P.W 24) recovered it. This is ??? by Regimental Sergeant Major (P.W 17). The evidence is quite ??? and rightly believed by the ??? As against Joyce there is the ??? of Blundell (P.W 3), Shore (P.W 4) and Thompson (P.W 5), who all said that he was at the butts. Shore goes further and says that all the persons who had collected at the butts went to the village. He also saw Joyce in the group which stood round Bidhata. This evidence was sufficient for the jury to hold that he had taken part in the raid. Lastly we deal with the case of Dowdall which is not a simple one so far as the legal aspect is concerned. Dowdall's participation in the raid is affirmed by all the approvers. Strenuous argument has been furnished on his behalf to prove his alibi but the evidence given by him in defence is by no means reliable and impressive. He pleaded that he was in the gymnasium for boxing training from 4-45 to 6-45 p.m, after which he returned to his barrack room and left for the school at 7-10 where he remained upto 9-20 p.m Four persons including Dowdall, namely Collins, Sweeny and Thompson were alleged to have been engaged in boxing for two hours in the top bay of barrack No. 6. Collins has not been examined. Sweeny (D.W 15) and Thompson (D.W 17) are admittedly his friends.
16. The gymnasium is said to be a temporary one improvised for the purpose as it was empty. Sweeny does not know if there are gymnasiums in other barracks as he never went there. It is not credible that they would have spent two hours in continuous training in the evening Sweeny was not able to remember whether he went for sparring on Friday evening. As regards his demeanour the learned Judge remarks that he hesitated in reply. Thompson (D.W 17) belongs to D Company and lived in the same barrack as Dowdall where except for a short interval they had been together since 1932. From his own statement it appears that he was in the hospital from both May till the end of July, but later contradicts himself by saying that he came back from the hospital some days before the raid, but he is unable to recollect how many days before it. He admits that he was in a weak state of health and states that on that evening he did not spar with anybody except Dowdall. Sutton (D.W 18) who was on barrack room duty on the night of 18th July says that Dowdall left the barrack room at about 4-30 but he is unable to say whether he went into the boxing bay or anywhere else. He is unable to swear whether Dowdall actually boxed that evening or went for a run. Then there are two other witnesses. Shone (D.W 19) and McGeehan (D.W 20), both of whom say that they went to the school at 7 o'clock and that private Dowdall followed them in quarter of an hour. None except the three went to the school. The evening school was ordinarily held from 6-30 to 8 on Monday, Tuesday, Wednesday and Friday, but not on Thursday. It is pertinent to notice that Dowdall was not present at the special roll call made at 8 p.m on that evening. The evidence is interested, artificial and far from satisfactory. It must therefore be held that Dowdall, as affirmed by the approvers, took part in the raid.
17. From the evidence of Shore (P.W 4) oread with the evidence of the Indian witnesses Pyare (P.W 13), Buddhu (P.W 18), Gariba (P.W 19), Tirasia (P.W 20), Dukhia (P.W 22) and Chota (P.W 29), at is clear that it was Dowdall who dealt the first blow to Bidhata across the back of his neck. Bidhata then tried to resist the soldiers who seized Pyare and was belaboured by them. It is not clear whether Dowdall took part in beating Bidhata again after he fell down. He was however undoubtedly one of the group which surrounded Bidhata and would be constructively liable for whatever offence was committed either under S. 34 or S. 149 or both. The main question is, what is the nature of the offence committed by that group? The learned Sessions Judge described it as murder in his charge to the Jury, although at the end of it he gave a general direction that it was open to the jury to return a verdict of guilty Tinder a minor offence covered by that major one, namely, culpable homicide not amounting to murder or grievous hurt instead of murder. The learned Sessions Judge should have clearly explained the difference between “murder” and “oulpable homicide” since the distinction is too fine for laymen, as the members of the jury are, to understand without elucidation. We therefore consider this aspect ourselves in order to determine the character of the offence. It is vigorously urged on behalf of Dowdall that the offence was nothing more than grievous hurt. Regard being had to the circumstances and the manner in which the attack was made it is futile to contend that the party of assailants had no knowledge that death might ensue from the injuries jointly inflicted on Bidhat. When violence is used with the ??? to cause death or knowledge that such consequence might ensue, it ceases to merely a case of grievous hurt. The contention therefore does not merit ??? consideration.
18. The evidence discloses that the grot consisted of 10 or 12 persons out whom three or four persons actually a tacked Bidhata. It has not been established by the evidence that Dowdall ??? longed to the small group which ??? the subsequent injuries. There is ??? and consistent evidence given by ??? Indian witnesses that Bidhata was fir hit across the neck by a soldier and ??? he, notwithstanding the injury, was ??? to run away along with the ??? villagers. It was when the soldiers ??? his daughter Pyare and he resisted the he was subjected to a fresh attack by ??? small group of soldiers whose identity not known. S. 34 speaks of a ??? intention and not common object. ??? intention means an intention to comm the crime actually committed, name the joint attack on Bidhata.
19. In the absence of evidence to ??? that Dowdall joined in that particular attack the intention of the joint assai ants could not be imputed to him. S. 3 denotes participation in section as ??? distinguished from S. 149 which on implies membership of the assembly the time of the committing of the offence see 52 Cal 197 1920 PC 1 , 85 IC 47 , 26 Cr LJ 431 , 52 IA 40 , 52 Cal 197 (PC) at p. 212. That section cannot come into play against ??? Although he may not have ??? in that particular attack he himself beaten him on the neck an later, after the assault, turned him ??? with his foot, which clearly indicates ??? presence throughout the assault and the he was animated by the common ??? of that assembly which gathered ??? him when he was attacked. He ??? therefore escape from the ??? liability under S. 149. The main question, however, is whether the joint ??? constituted the offence of murder or on culpable homicide not amounting to ??? It is not suggested here that ??? was any intention to cause death. I was no doubt sought to be proved in the dower Court that a bayonet was used but that attempt failed as Dr. Metha, the Medical Officer (P.W 36) stated that none of the injuries indicated its use. Throughout the raid there was nothing to show that the assembly intended to murder anybody. Neither the bayonet nor the hatchet was ever used to attack anyone. The fact that these lethal weapons were not used goes to confirm the evidence of the witnesses who say that the object of the raid was to beat the villagers. Consequently when the soldiers attacked Bidhata it must be presumed that the object was to beat him, but as it was a joint attack and six ribs we re-fractured, four of them in two places, they must also be presumed to know that it was likely to cause death. This brings the case within the purview of culpable homicide, but for culpable homicide to be murder there must be intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death. This has to be inferred from the nature of the injuries and the weapons used. According to the evidence of the Assistant to Civil Surgeon (P.W 36) there were in all seven injuries, but injuries Nos. 1, 2, 5 and 7 were not serious enough to cause death. The injuries Nos. 3, 4 and 6 were of a grave nature. The sticks that were used were about 1″ to 1½ to thick. The attack was not directed against the head but the body. The learned Sessions Judge in his charge to the jury explained that each injury by itself could not be fatal, but the cumulative effect of the injuries was such as was likely to cause death. Moreover the attack was made on the spur of the moment without premeditation and although every participant in the attack was actuated by the intention to inflict injury it was not expected that he would weigh the violence of his blow. Now, in an unpremeditated joint attack, when each individual beats with a stick, anything more than the knowledge that their joint act in its cumulative effect is likely to cause death cannot be imputed to them collectively. The distinction between the knowledge that an injury is likely to cause death and one that is sufficient in ordinary course of nature to cause death is, though subtle, real. It is indeed a question of probability, which depends on the nature of the weapon used and the particular part of the body against which it is used. As was pointed out by Melvill, J., in 1 Bom 342 (1876) 1 Bom 342:
A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is suffcient in the ordinary course of nature to cause death.
20. As observed in the same case, the former is culpable homicide and the latter is murder. The learned Sessions Judge relied on 35 All 506 (1913) 35 All 506 , 21 IC 663 , 14 Cr LJ 615 and 45 All 130 1923 All 88 , 71 IC 234 , 24 Cr LJ 106 , 20 All 900 , 45 All 180. In both these cases the victim's head was smashed and it was rightly held that a concerted attack directed against the head which was smashed was with the knowledge that the injury which they were inflicting was sufficient in the ordinary course of nature to cause death. These cases therefore have no bearing on the present case in which the medical testimony is to the effect that the death was due to shock which was the cumulative effect of the various injuries. The intention was not to cause death or to cause such bodily injury as is likely to cause death, but there was knowledge that the cumulative injuries were likely to cause death. The offence falls within the second part of S. 304, I.P.C The maximum sentence for this offence is rigorous imprisonment for ten years. We therefore hold that Dowdall was guilty of culpable homicide not amounting to murder punishable under S. 304, Part 2, read with S. 149, I.P.C, and reduce his sentence to seven years' rigorous imprisonment which will run concurrently with the sentence of two years' rigorous imprisonment passed for rioting. We acquit him of the charges under S. 302(34) and 302(149), I.P.C
21. With the above modification in the case of Dowdall we confirm the convictions of all the rest. As to the sentences we see no reason to interfere. The concerted raid on the innocent and defence-less villagers, including the abominable conduct towards women was the more heinous and reprehensible by reason of the fact that it was perpetrated by British soldiers whose duty it is to protect the lives, persons and property of the inhabitants of this country. That duty they have shamefully betrayed and brought indelible disgrace on their uniform. In awarding sentences, the learned Sessions Judge took into consideration the recommendations for leniency made by the jury and we are unable to find any scope for mitigating the penalty. The result is that Dowdall's appeal is partially allowed and the other appeals are dismissed.
V.B/R.K
22. Order accordingly.