Raghubar Dayal, J.
1. Kunwarpal Singh, Thakur, resident of Nagla Biri, and Baji Lal, Ahir, resident of Khatoamai, appeal against their conviction and sentence of death under Section 302, Penal Code. The usual reference for the confirmation of the death sentence is also before us.
2. One Bhopal was also tried along with the appellants. He was acquitted by the learned Sessions Judge. Two other persons, namely Kishanpal Singh, Thakur of Nagla Biri and Ram Singh, Thakur of Agra district are also alleged to have taken part in this incident. They were absconding when the first three persona were challaned. It appears from the judgment of the learned Sessions Judge that Ram Singh had been subsequently arrested and was committed for trial to the Sessions Court shortly before the commencement of the trial against the appellants. He was not tried jointly with the appellants as his counsel thought have not possible to secure the attendance of defence witnesses. We understand that Ram Singh has again absconded subsequently. We refer to this fact for two reasons. The learned Sessions Judge could have profitably adjourned the trial against the appellants for such time as would have made it possible for Ram Singh's defence witnesses to appear. Delay of about a fortnight might have been caused, but it would have avoided a separate trial with the remote possibility of different opinions being expressed by the trial Court and the appellate Court in the two cases. Secondly, there may have been justification for allowing bail to the accused persons in this murder case, but it would have been more prudent if the bail of the various persons had been cancelled after the learned Judge had formed the Opinion that the evidence in the case was reliable and was, therefore, likely to end in the conviction of the accused. If this course had been adopted, Ram Singh might not have been able to abscond. It appears that knowing the fate of the accused in the case under appeal he thought it better to abscond.
3. Megh Singh deceased and Girwar Singh deceased were two brothers. They were Thakurs and were residents of village Nagla Biri. On the night between 14th and 15th December 1945 they were attacked by some persons and as a result of the injuries received Megh Singh died on the spot and Girwar Singh died after about 28 hours.
4. These brothers had a thar, presumably a hut, at about six furlongs from the abadi of village Nagla Biri. It was also at a distance of about six furlongs from another abadi which is of village Gendao. Between the latter village and the thar is a hamlet of Chamars. This too is about furlongs from it. On three sides of the thar is barren land. At about 50 to 60 paces from this thar in the direction further from the abadis of Nagla Biri and Gendao is their threshing-floor. The prosecution case is that Girwar Singh was sleeping at the thar while Megh Singh was sleeping at the threshing-floor. It is alleged that nobody knew of the incident at night and that the first person to come across the injured and to know of the incident was Rukumpal Singh, son of Girwar Singh.
5. Rukumpal Singh, P.W. 15, states to have gone to the hut after sunrise. He found his father, Girwar Singh, lying at a distance of 10 or 15 paces from the hut. He found his uncle lying dead in the threshing-floor. Girwar Singh told him that the assailants first killed Megh Singh and then came to him and that they were Kunwarpal, Kishanpal, Baji Lal and Ram Singh. He also told his son that from the sounds of footsteps he thought that there were some more persons at the threshing-floor. Rukumpal Singh tried to arrange for a bullock-cart to carry the dead and the injured persons to the thana, but failed to get one. He then improvised a stretcher and took Girwar Singh to the police station.
6. Girwar Singh lodged the report Ex. P-1 at 2 P.M., on 15-12-1945 at police station Jalesar, which is four miles from the place of incident. This report is as follows:
Two or three years ago I gave evidence against Kunwarpal and Kishanpal Thakurs in a case under Section 107. Now six or seven months ago my younger brother, Megh Singh, gave evidence against Kishanpal in a case of cattle lifting. In that case Kishanpal was sentenced by the Court at Agra to four months' rigorous imprisonment, but was subsequently let off on appeal on 12-12-1945. As soon as he came he held out a threat that he would now reckon with Megh Singh and myself. This night I was sleeping at my thar (hut) which is situate on the boundary of Gendao, and Megh Singh was sleeping in the threshing-floor of bajra at a distance of 50 or 60 paces from the aforesaid thar. At 11 O'clock in the night Kunwarpal and Kishanpal, Thakurs, Ram Singh Thakur, a relation of Kishanpal, resident of Agra district, and Baji Lal, Ahir of Kesari Nagla, a hamlet of Qasimpur, came and killed my brother Megh Singh with lathis while he was sleeping. At the time when they were killing he had called out 'I am being killed, come up.' I also awoke and had just picked up a danda and started in that direction to save him when all the four of them attacked me also with lathis. I fell down and cried out. They continued to beat me even after I had fallen down and they were saying that they had finished one and that I should also be killed. Meanwhile men from our village and those from Gendao raised an alarm. When these people left me taken for dead and ran away they were seen and recognised by the people while running. It was a moonlit night. I complain against the aforesaid four persons of having killed my brother Megh Singh and attacking me with the intention of causing death. I have received numerous injuries on my head and legs. I also struck a danda to Baji Lal which gave a glancing blow. I came late because there was nobody to carry charpoy and the dead body of my brother Megh Singh lay in the threshing floor.
7. Girwar Singh was sent to the hospital where Dr. R.M. Gupta examined his injuries at 4 P.M., the same day and found 11 injuries on his person. They were all simple and, with the exception of one, were caused with a blunt weapon like a lathi. The duration was stated to be about 18 hours.
8. Girwar Singh's condition was very serious when admitted to hospital. The doctor, therefore, got his dying declaration recorded. Mr. Ram Singh, Tahsildar Magistrate Second Class, Etah, recorded the dying declaration at 4-30 P.M. The doctor deposes that at the time of the recording of the dying declaration only the patients were there in the room while all other persons, even the relations, had been removed and that during this recording only he and the Tahsildar were with the injured person, namely Girwar Singh. The Tahsildar deposes that Girwar Singh was at the time in his proper senses. The dying declaration of Girwar Singh is as follows:
Last night at about 11 O'clock I was sleeping at the thar in my field where cattle are tied. My younger brother Megh Singh went and slept in the field (to keep watch over) bajra cobs. Kunwarpal, Kishanpal, Bam Singh and Baji Lal Ahir of Qasimpur came and pressed down my younger brother Megh Singh. When he cried out I (started) with a danda of babul and had not yet reached there when the aforesaid four persons surrounded me in the way and attacked me. They best me with lathis. I also gave a danda blow. Thereafter I got unconscious. I have been keeping or bad terms with them. I gave evidence in several oases against them. They murdered my younger brother Megh Singh.
Girwar Singh died at 4 A.M. on 16th December.
9. Dr. R.C. Srivastava conducted the post mortem examination on the dead body of Girwar Singh on 17-12-1945. The deceased was 68 years old. He found 13 injuries on his person. They included a contused wound bone deep on the forehead and another contused wound superficial on the forehead on the right side. Pour ribs were found broken. In his opinion Girwar Singh died due to shock on account of multiple injuries. He also examined the dead body of Megh Singh on 16th December. The deceased was 65 years of age. There were 19 injuries on his person. The injuries included punctured wounds and a superficial incised wound. Megh Singh also in the doctor's opinion died due to shock on account of multiple injuries.
10. Kunwarpal Singh accused was arrested on 24-12-1945 and Baji Lal accused was arrested on 31-12-1945. The dates of arrest are not on the record, but have been taken from the case diary. In Court M. Masood Hasan, Sub-Inspector, P.W. 17, made a wrong statement that all the accused except Bhopal were challenged as absconders. The charge-sheet printed at p. 24 shows that the two appellants and Bhopal were in custody at the time the charge-sheet was submitted and the absconding accused were Kishanpal and Ram Singh.
ll. Both the appellants denied the prosecution allegations against them. Kunwarpal Singh stated before the Committing Magistrate that he was on bad terms with Bhagwan Singh, Bansi, Hukum Singh, Bhojpal and Lal Singh, and that they got him falsely implicated. Baji Lal accused stated that he was on bad terms with Hukum Singh and that he got him falsely implicated. In the Sessions Court Kunwarpal Singh stated that the prosecution witnesses deposed against him as they were on bad terms with him. Baji Lal stated that they were under the influence of Hukum Singh and so they deposed against him. He also alleged alibi stating that he was attending the dhola performance in his village at the chaupal of Kashi Ram till 2 A.M. on the night of the incident. The accused examined seven witnesses in defence.
12. The prosecution has led evidence to prove the various statements of Girwar Singh, namely his statement to Rukumpal Singh on the morning following the incident, his statement to the police when he lodged the first information report and his statement to the Tehsildar. All these statements are dying declarations. It has also led evidence of the fact that the appellants and other persons involved in the case were noticed conversing together at the house of Kishanpl Singh, the absconding accused.
13. The case against the appellants mainly depends on the view to be taken of the various dying declarations of the deceased Girwar Singh. If they are to be believed, there is no doubt that the two appellants are guilty of murdering Girwar Singh.
14. It may be said at once that no case with respect to the murder of Megh Singh can be made out against the appellants on the material on the record. The dying declaration of Girwar Singh is not admissible in evidence with respect to the incident of the attack on Megh Singh. Section 82(1), Evidence Act, makes the statement of a person who is dead a relevant fact; when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. It follows that the-statement of one dead person is not a relevant fact with respect to the question about the death of another person.
15. Further Girwar Singh is not an eye witness of the attack on Megh Singh, His statements about the attack on Megh Singh are the result of his honest belief based on inference from the fact that soon after the attack on Megh. Singh the accused persons attacked Girwar Singh as well.
16. Mr. Darbari, one of the learned Counsel for the accused appellants, contended that the dying declaration alone, unless corroborated, cannot be the basis for recording a conviction and referred us to the cases reported in Bullu Singh v. Emperor ('29) 16 A.I.R. 1929 Pat. 249 and Arumuga Tevan v. Emperor ('31) 18 A.I.R. 1931 Mad. 180. The facts of both the cases are very different. Those facts raised a lot of doubt about the truth of the dying declaration. The learned Judges in the former case observed at p. 253:
The statement made by the deceased to the doctor is admissible in evidence as a dying declaration under Section 32, Evidence Act, but that statement requires corroboration in order to convict the accused of the serious charge of murder, That statement has not been tested by cross-examination and facts have not been elicited to show that the deceased had not taken any other thing, say sweetmeat etc., containing aconite poison and that his suspicion as regards the bhang, though it might be reasonable, might be without foundation.
In the Madras case the dying declaration was recorded about a month prior to the death taking place. It was observed by Jackson J. in the Madras case at p. 180:
When a man who is dead has left a statement throwing light upon the cause of his death, that statement is relevant evidence under Section 32, Evidence Act, but it is not entitled to any peculiar credit. No doubt if a man gasps out his story soon after the occurrence it may be said that there was no time for him to fabricate or for his friends to suggest falsehood.... But if, as in this case, the man is in bed in hospital four days after the event and a month before he dies and makes a statement, that statement carries no more weight than if he made it in the witness box and rather less, because he has never been cross-examined.
Both these cases cannot be taken as good law and as being in full support of the proposition of law which Mr. Darbari desires us to accept and lay down.
17. We find from Sarkar on Evidence, 1946 Edition, that later cases of these two Courts and also of other Courts go against the contention for the accused.
18. In Mahomeed Arif v. Emperor ('41) 28 A.I.R. 1941 Pat. 409 it was observed at p. 410:
There is no absolute rule that a dying declaration should not be acted on for the purpose of convicting an accused person even if uncorroborated, provided that the Court is fully satisfied that it is true But before so acting on it the Court will apply to it every test of its genuineness and good faith which it is possible in the circumstances of the case to apply.
We respectfully agree with this view.
19. In re Guruswami Tevar ('40) 27 A.I.R. 1940 Mad. 169, a Full Bench held:
It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond flaying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court after taking everything into consideration Is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense, The Court must of course be fully convinced of the truth of the statement and naturally it cannot be fully convinced if there is anything in the other evidence or in the Surrounding circumstances to raise suspicion as to its credibility.
Again we fully agree with this view.
20. A similar view was expressed in the King v. Maung Po. Thi. ('38) 25 A.I.R. 1938 Rang. 282.
21 We are of opinion that a conviction on the (evidence of a dying declaration alone is perfectly legal. Whether it be the evidence of a dying declaration only or of eye-witnesses, a Court has to come to the conclusion that it is satisfied beyond reasonable doubt that the accused has been proved guilty before it can record a conviction. The Court has to apply the various tests to scrutinise and weigh the evidence on the record. If those tests do not tend to throw doubts on the prosecution story, the evidence led is believed and acted upon. It goes without saying that the circumstances in which a dying declaration is made and the nature of its contents are very strong guides in determining the weight to be attached to a dying declaration. A dying declaration made soon after the incident or at a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints from others will ordinarily be deserving of great weight. Similarly, if the contents of the dying declaration indicate that what is alleged there is probably true, that no apparent attempt has been made to exaggerate the incident or to rope in a large number of persons, it will ordinarily be considered to be a dying declaration worth reliance. We must make it clear that what we have just said is by way of illustration only and is not an exhaustive description of the factors which would justify reliance on a dying declaration or whose absence will always justify the rejection of a dying declaration. We, therefore, hold that conviction on it mere dying declaration without any corroboration is good in law if the Court believes it.
22. Rakumpal Singh, son of Girwar Singh, deceased, mentions the various causes of enmity between the deceased and some of the persons accused of the offence. Kishanpal, the absconding accused, and Kunwarpal Singh appellant were prosecuted under Section 107, Criminal P.C., two or three years before the incident. Girwar Singh appeared as a witness against them in this case. The case was, however, compromised later. Megh Singh deceased gave evidence against Kishanpal in a cattle theft case about six months before this incident. Kishanpal was convicted by the trial Court, but was acquitted on 12th December 1945 by the appellate Court. This fact is mentioned in the first information report by Girwar Singh. Girwar Singh further stated in the report that as soon as Kishanpal came he held out a threat that he would now reckon with Megh Singh and Girwar Singh. It may be again noted here that the incident took place on the night between 14th and 15th December, within a few days of the return of Kishanpal, the absconding accused.
23. Munshi Singh, P.W. 12, deposes that Kishanpal returned to the village at 8 or 9 p. M. on 13th December 1945, that he (Munshi Singh) went to Kishanpal's house on 14th December 1945 and mei Kishanpal, Kunwarpal appellant, Baji Lal appellant, Ram Singh and Bhopal there, that they were talking among themselves and that on his arrival they stopped their conversation. He further deposes that Kishanpal remarked that Megh Singh and Girwar Singh opposed him in every case and that they should be taught a lesson. He left, telling Kishanpal not to take any action against Megh Singh and Girwar Singh Hukum Singh, P.W. 13, of village Nagla Biri, deposes to have noticed these appellants, Kishanpal, Bam Singh and Bhopal warming themselves against fire in front of Kishanpal's house. They were talking among themselves. He could not hear their conversation. The next morning he learnt of the incident.
24. There is no good reason to disbelieve these two witnesses, Munshi Singh and Hukum Singh. The mere fact that they also depose about the presence of Bhopal among the people who were conversing on the night of the incident and that Bhopal has been acquitted does not go against them. The main reason for the acquittal of Bhopal is that he was not named in any of the dying declarations by Girwar Singh. Munshi Singh is a kinsman of Kishanpal, the absconding accused. Munshi Singh did not convey the information to either Girwar Singh or Megh Singh. This again is no good reason to disbelieve him. He need not have gathered that the persons intended to put their intentions into execution very soon.
25. Hukum Singh, witness, is a different person from Hukum Singh against whom the appellant "expressed enmity. That Hukum Singh is of Qasimpur while this witness is of village Nagla Biri. He is a first cousin of Munshi Singh. He has a joint tenancy with Kunwarpal Singh accused. There is no evidence of any enmity between him and any of the appellants.
25a. The statements of Munshi Singh and Hukum Singh, therefore, establish a very good circumstance in corroboration of the dying declaration of Girwar Singh. There is nothing abnormal in Kishanpal's collecting his friends and relations soon after his return after acquittal and to have arranged for this murderous assault. The very short interval between this incident and his return is a significant fact.
26. There is no particular reason to disbelieve Rukumpal Singh, son of Girwar Singh deceased. The causes of enmity are such as would give grounds of grievance to Kunwarpal Singh accused and Kishanpal to attack Girwar Singh and Megh Singh more than they would give a cause to Rukumpal Singh and Girwar Singh to accuse them falsely. They had not suffered anything. It was Kunwarpal Singh and Kishanpal who suffered. Kunwarpal Singh lodged a report, EX. D-2, in 1936, about ten years before the incident, under Section 506, Penal Code, against Moti Lal, patrol, Ganges Canal, Manohar, son of Megh Singh, and two other persons. The allegations in the report are against Moti Lal, patrol, who is said to have stated that Manohar and Bhagwan Singh always remained with him. This report badly fails to establish any reasonable motive for Girwar Singh and Rukumpal Singh to accuse Kunwarpal Singh falsely in this murder case.
27. There was undoubtedly a long delay in the lodging of the first information report by Girwar Singh. The undue delay is explained by Rukumpal Singh to be due to his learning of the incident late and to the time spent in arranging for a conveyance for taking Girwar Singh to the thana. If it is true that Rukumpal Singh came to know of the incident in the morning after sunrise, the period of delay requiring explanation is much reduced. We see no reason to disbelieve Rukumpal Singh's statement to the effect that he learnt of the incident in the morning and that further it delay was caused on account of arranging for a conveyance. Girwar Singh also mentions the arrangement of a conveyance as a reason for the delay in reaching the thana. If Rukumpal Singh or other people in the village had come to know of the incident at night when it did take place, there seems to have been no reason why a report should not have been lodged earlier. There was ample time to concoct a case by the early morning and a report could easily have been lodged' by 8 or 9 A.M. the latest. There appears no indication of a concoction in the first information, report. Further the least that would be expected from Rukumpal Singh and the villagers who-would know of the incident at night is that they would have removed Girwar Singh, the injured person, from the place of incident to his house for the sake of his comfort and treatment. It is in the statements of two defence witnesses, namely, Zora, D.W. 4, and Hardayal Singh, D.W. 5, that they had found Girwar Singh lying injured near his hut on the morning following the incident. The fact that Girwar Singh remained lying outside the hut on that wintry night after the incident is absolutely incompatible with the suggestion that Rukumpal Singh and the villagers had come to know of the incident at night and had taken a very long time in fabricating the report against the accused appellant.
28. The suggestion tends to get an implied support from a couple of sentences in the first information report. They are:
Meanwhile, men from our village and those from Gendao raised an alarm. When these people left me taken for dead and ran away they were seen and recognised by the people while running.
It is significant that Girwar Singh does not state in this report that any resident of these two villages had reached the spot. There might have been some sort of an alarm in those villages on hearing the cries of Megh Singh and Girwar Singh if those cries could actually be heard in. those two villages, each of which was some six furlongs away torn the place of incident, and therefore Girwar Singh might have imagined that some of the villagers might have seen the assailants running away. The fact, however, remains that no villager has come forward to say that he learned of the incident that night or that he saw any of the assailants running away. Even if the villagers had heard the cries, none of them appears to have taken the trouble of running for a distance of six furlongs to see what the matter was. The villagers might have just, remained alert in their own villages. We, there, fore, do not infer from these sentences that the-villagers had come to know of the incident in the night or that these sentences were introduced in. the report by Girwar Singh with a feeling of mentioning a false fact in order to create witnesses against the accused If that had been his intention, he could have easily stated the names of some of his well - wishers or enemies of the accused who could be readily available to give evidence against the accused and could have stated that they had actually reached the spot to his rescue. He does nothing of the kind. No name of any such villager is mentioned in the report. We rather consider this circumstance to be an indication of the truth of the report and of the absence of any attempt to create false evidence against the accused.
29. Further this delay in the lodging of the report loses its significance in view of the suggestion put to Rukumpal Singh and the defence evidence led that the names of Kunwarpal Singh and Baji Lal appellants were mentioned in the report and dying declaration on account of the instigation of Hukum Singh and Bhagwan Singh during the escorting of Girwar Singh to the thana. The effect of the defence evidence is that no suggestion for accusing the appellants falsely was made so long as Girwar Singh was in the village. There is no allegation or suggestion to the effect that Girwar Singh left the village fairly promptly after the incident and took an unduly long time in transit.
30. The aforesaid defence suggestion further indicates that according to the accused Girwar Singh and Rukumpal Singh had no reason of their own to accuse them falsely. There does not appear to be good reason for Hukum Singh and Bhagwan Singh to get the appellants falsely named in the dying declaration. (After discussing the evidence of some of the prosecution and defence witnesses the judgment proceeded as follows.)
31. We have already referred to the few sentences in the first information report which were said to be falsely introduced there with a view to create evidence, and have expressed the opinion that they do not appear to have been so introduced. If the suggestion for the possible reason of Girwar Singh's stating those sentences be not correct, we are inclined to think that these sentences were introduced by the scribe of the report in order to allow room for introduction of circumstantial evidence. Even in this view of the matter it appears that Girwar Singh was not prepared to oblige the police by naming some persons as likely witnesses. This means that either he was not prepared to name witnesses falsely or he was not confident of any villager supporting his allegation if it be a false one. This again leads to the inference that there could not have been any consultation between the villagers and Girwar Singh before he lodged the report. If there were people who would help him in fabricating a case against the accused, he would not' have shown such bankruptcy in naming witnesses.
32. The other statement in the report, which is not a statement of fact actually seen by Girwar Singh, relates to the attack on Megh Singh. Here again it is significant that Girwar Singh does not state in clear words that he had actually seen the assault on Megh Singh. He simply states that the accused persons came and. killed his brother Megh Singh with lathis and that his brother had called out, "I am being, killed, come up". We have already mentioned that Girwar Singh must have imagined, and not unreasonably, that his assailants were also the assailants of Megh Singh. This view also explains why Girwar Singh did not mention the use of a sharp-edged and pointed weapon against Megh Singh. The doctor's observations-make it clear that some sharp-edged and pointed weapon was used in the attack on Megh Singh. Girwar Singh simply mentions the use of lathis. He mentions so because only lathis were used against him. Girwar Singh received no injury from any sharp edged pointed weapon. The inaccuracy with respect to the weapon used against Megh Singh, therefore, is not an attempt, on the part of Girwar Singh to state a fact, wrongly in the first information report.
33. Girwar Singh just mentioned four persons as the assailants both to his son Rukumpal Singh and in his other two dying declarations, the first information report and the declaration made to the Tahsildar. He did not introduce the name of Bhopal or of any other person. He did not even mention in either of the two recorded dying declarations that there was a possibility of there being other assailants along with the-four named persons, though Rukumpal Singh, deposes that Girwar Singh just stated to him that he had heard the sound of footsteps of some other person on the threshing-floor. Girwar Singh was in no way responsible for the prosecution of Bhopal accused who was acquitted by the Court, below.
34. It is significant that though Girwar Singh mentioned in the report the shouts of Megh Singh, he did not mention the shouts to include the name of any of the persons accused by him of the crime. Megh Singh was dead. Girwar Singh could not reach him and could not see the actual assault. Girwar Singh was alive and, therefore, at the time of lodging the report he would have been conscious of the difficulty of establishing that these accused had killed Megh Singh. No attempt was made to mention himself or any other person as an eye-witness of Megh Singh's assault or to make himself a witness of hearing the dying declaration of Megh Singh in the form of a shout that so and so were killing him. This, to our mind, is a good index of the straightforward nature of the first information report.
85. Girwar Singh stated in the report that he himself used a danda and struck Baji Lal with it. This was a bold statement to make if Baji Lai's name was falsely mentioned in the report. If Baji Lal had been arrested very soon after the lodging of the report, the truth or otherwise of this statement could have been easily ascertained. This expression, to our mind, is a good indication of the fact that Baji Lal was among the assailants and was recognised as such by Girwar Singh.
36. There is nothing much to be said about the dying declaration made to the tahsildar. It was briefer than what was made in the first information report. One apparent difference between the first information report and this dying declaration is that in this dying declaration Girwar Singh states to have given evidence against the accused persons in several cases. As a matter of fact he had just given evidence in one case against one of the accused, namely Kunwarpal Singh, and his brother Megh Singh had given evidence in a theft case against Kishanpal, one of the absconding accused. Laxity in expressions in this respect does not appear to be any sufficient reason to consider the dying declaration before the tahsildar to be the result of any prompting by people in the hospital.
37. We are, therefore, of opinion that the dying declarations of Girwar Singh to his son, to the police and to the tahsildar were true statements of facts and deserve full reliance. They find corroboration from the statements of Munshi Singh and Hukum Singh and also from the circumstances that Kishanpal, one of the absconding accused, had returned after acquittal a day or two before and that the two appellants did abscond from the village for some time, they feeing not present in the village when the Sub-Inspector went there.
38. It follows, therefore, that the prosecution has succeeded in fully proving that Kunwarpal Singh and Baji Lal were among the assailants who caused Girwar Singh's death.
39. This brings us to the question as to what offence the accused appellants have committed. Undoubtedly the offence they have committed is an offence under Section 302, Penal Code. The various assailants came together and jointly assaulted Girwar Singh, who died on account of the multiple injuries he received. All will be responsible for his death, provided they were all acting in furtherance of a common intention to beat or kill Girwar Singh. Such a common intention can be easily gathered from the circumstances of the case.
40. There is, however, a legal point and it is that no mention of Section 34, Penal Code, was made in the charge framed against the accused. It is contended that in the absence of the mention of Section 34, Penal Code, in the charge the accused cannot be convicted of an offence read with Section 34, Penal code. Reliance is placed on the case in Emperor v. Bishwanath Tewari ('45) 1945 A.L.J. 531 We need not discuss the question in detail in this case.
41. We have held in Cri. Revn. No. 1784 of Sheo Ram v. Emperor Reported in ('48) 35 A.I.R. 1948 All. 162, after reference to Sections 225, 232, 535, 587, 286 and 237, Criminal P. C. and the Privy Council decision reported in Begu v. Emperor 12 A.I.R. 1925 P.C. 130, that a person charged with a substantive offence can be legally convicted of that offence read with Section 84, Penal Code, irrespective of the fact that the charge framed against him did not mention Section 34, Penal Code, if the facts of the case justify it and if the accused has not been misled in his defence and if there has been no failure of justice.
42. In this case we do not feel that the accused appellants have been prejudiced in any manner. In this case the two appellants and Bhopal were charged under Section 302, Penal Code. The prosecution story was that they and two other persons had actually assaulted the deceased in the night. The fact that the accused came together and fell upon Girwar Singh leads to the inference that all of them had a common intention to beat Girwar Singh. The intention is gathered from their conduct. The accused knew the allegations about their conduct and the evidence led in the case. They cannot be prejudiced if the Court infers from the established facts that they had a common intention to beat Girwar Singh and that the beating was in furtherance of the common intention of all. In this view of the matter we are of opinion that Section 34, Penal Code, is clearly applicable to the facts of this case and that the omission of its mention in the charge does not bar the conviction of the accused of the offence under Section 302, Penal Code, read with Section 84, Penal Code, as the accused are not prejudiced and misled in their defence and as there appears to have been no failure of justice.
43. We are, therefore, of opinion that the appellants have been rightly convicted under Section 302 read with Section 84, Penal Code, with respect to the murder of Girwar Singh and that they are not proved guilty of committing the murder of Megh Singh. We acquit them of the murder of Megh Singh.
44. We, therefore, dismiss the appeal, confirm the conviction and the sentence of death for committing the murder of Girwar Singh and direct that the sentence of death be carried out according to law.