JUDGMENT
1. In this case the learned Sessions Judge of Kumaun had before him eight persons charged with complicity in a riot, under Section 147, Indian Penal Code, and some of them further charged with particular offences alleged to have been committed either in the course of the riot, or as a part of the transactions immediately leading up to the riot. Thus Gayan Singh was charged under Section 302, Indian Penal Code, with the murder of one Jora. Dewan Singh was charged under Section 324, Indian Penal Code, with causing simple hurt by means of a dangerous weapon to one Kutta, while another accused whose name is also is Kutta was charged with causing grievous hurt to one Chaitu, the charge being under Section 325, Indian Penal Code. The remaining five persons on their trial, namely, Udai Singh, Kadaru, Bali, Nain Singh and Kangalu, were charged only in respect of the riot. We have been through the evidence in the case and we may say at once that we have received the greatest possible assistance from the very thorough and carefully reasoned judgment of the learned Sessions Judge. In the end, the Trial Court acquitted one accused person, of the name of Bhau Singh, and convicted each of the others on the charges as framed. Gayan Singh has been sentenced to death and the record is before us for confirmation of that sentence. The remaining accused persons have received sentences of one year’s rigorous imprisonment for the riot, with additional sentences of one year’s rigorous imprisonment against Dewan Singh or Dewanu and six months’ rigorous imprisonment against Kutta, in respect of the offences individually charged against them. We think it sufficient to recite the facts alleged on behalf of the prosecution and the story told’ by the accused persons generally in their defence. It will then not be necessary for us to say much more, beyond indicating our reasons for accepting the view taken by the Trial Court regarding the weight of the evidence as a whole. According to the prosecution the deceased Jora, a resident of a hamlet near that of Semalya where the accused persons live, found a lot of goats trespassing on his land. He drove them up into the village of Semalya, not in order to return them to their owners, but with intent to make over the goats to the pardhan or head-man, the witness Bhim Singh. In consequence of abusive language openly used in the village by Jora, a number of residents of Semalya, presumably owners of some of the goats which Jora had seized, gathered together and came towards Jora with hostile intentions. According to the prosecution evidence there were five persons concerned in this part of the affair, namely Gayan Singh, Dewanu, Kutta, Kangalu and Bhau Singh. There was an interchange of abuse and the accused Kutta cried out that Jora was always giving them trouble, and incited the rest to attack him. According to the prosecution witnesses, he distinctly called upon the other accused to kill Jora on the spot. On this the accused Gayan Singh, went into the verandah of his house and came out again with an axe in his hand and struck Jora dead on the spot with a single blow of that implement. There are several witnesses who depose to having seen this transaction from first to last, namely, Bhim Singh, the village headman, Mahendra Singh, Chait Singh, Lutha and Macho Singh. These are all residents of Semalya and persons who might have been expected to be in the neighbourhood at the time of the occurrence. It is not suggested that there is anything in their evidence to throw suspicion on the general truth, at any rate of this part of their story. The point is made against them that they are all members of a different clan from that to which the accused persons belong, and that there had been previous ill-feeling between the parties. We think it sufficient to say at once that, in our opinion, the defence altogether failed to make out, as against these witnesses or the members of the clan to which they belong, the allegation of enmity upon which the defence was based. Having said this much, we may continue the prosecution story. This is to the effect that, the news of Jora’s death having spread, certain relatives of his, including Umrao Singh alias Kutta, Chaitu and another. Umrao Singh, came to the spot and a quarrel again broke out between them and the accused persons. The accused Kedaru is alleged to have called out to the others that inasmuch as they had killed Jora, they were not likely to incur any worse punishment if they wiped out the whole of his family. In the affray which ensued the. other accused persons who have been convicted only under Section 147, Indian Penal Code, are alleged to have joined, and in the course of this affray the injuries referred to in the charges under Sections 324, and 325, Indian Penal Code, were inflicted and one of the accused persons, Dewan Singh, may or may not have received a nasty cut in the arm from some sharp weapon, probably a kukri. This part of the prosecution case rests on the evidence of the witnesses whom we have already named, reinforced by Umrao Singh, Chaitu and the other Umrao Singh, the relatives of the deceased Jora, who are alleged to have been the victims of this second attack. We now take up the story told by the accused in their defence. They alleged that, on the day before the date mentioned in the charge, the daughter of the accused Kedaru, who had been married to another man of the same name, was returned to his house with contumely by the members of her husband’s brotherhood, who asserted that they would not permit of a marriage between a person of their own brotherhood and a man belonging to so inferior a caste as Kedaru. It is worthwhile to note at once that the men who are alleged to have thus insulted Kedaru are members of a third clan, which is neither that to which the accused belong, nor that of Bhim Singh and his fellow witnesses for the prosecution. The accused go on to say that, on the day following, that is the date alleged in the charge, the persons who had thus insulted the accused and their clan came in a body to Semalya and induced Bhim Singh and the members of his clan to join them as well as certain low caste persons who live in huts on the outskirts of the village. This entire body of 200 persons or thereabouts is alleged to have made a determined attack on the house in which the accused lived, and more particularly on that of Gayan Singh. The accused, without admitting in so many words that in the course of the affray which followed they themselves, or some of them caused the death of Jora and inflicted grievous hurt on Chaitu and a severe injury on the witness Kutta, do practically admit that these injuries must have been caused some how by the persons who were resisting the attack made on the houses of the accused. As a matter of fact, there was a counter charge brought against a large number of persons which was the subject-matter of a separate trial before the Sessions Court. The most important evidence however, bearing upon the story told by the accused was duly produced as evidence for the defence in the present case. The trial was further complicated by doubts which were thrown on the honesty of the investigation which had preceded the enquiry in the Court of the Committing Magistrate. We do not think it in any way necessary to go into all the details which have been fully discussed in the judgment of the learned Sessions Judge, with which we find ourselves in substantial agreement. On the very face of it the weak points about the defence story were two. The motive put forward for the alleged attack on the houses of the accused persons, and more particularly on that of Gayan Singh was not merely inadequate, but it was no motive at all. The persons who had already insulted Kedaru by returning his daughter to him with contumely had no motive for following up this insult by ah organised attack on the house of Kedaru and his whole family, still less for selecting the house of Gayan Singh as the principal object of their anger. The other point is that the defence evidence as it stands does not account for the death of Jora. On this point we have examined the various statements made by Gayan Singh, the person principally concerned. Underlying all his statements there is an obvious consciousness of the fact that he had killed Jora, though he will not say this in so many words. His statement to the Magistrate goes a little further and amounts almost to an admission that he had killed Jora with the blow of an axe. In his petition of appeal to this Court he says that, while defending his house from the attack made upon it, he was throwing all sorts of missiles, including arrows and also a hatchet, and he admits that it was the hatchet which struck Jora and caused his death. The medical evidence, as the learned Sessions Judge remarks, is so fully in accordance with the statements of the witnesses who depose that Jora was killed on the spot by a single heavy blow struck with the hatchet produced in Court, that we need have no hesitation in accepting this evidence against the some what half-hearted denials of the appellant Gayan Singh. We may dispose of this man’s case at once, by saying that we see no reason whatever to distrust the statements of the prosecution witnesses who directly implicate him, and that his own plea, which was essentially one of killing in the lawful exercise of a right of private defence, unquestionably broke down. The case as regards the other appellants is not quite so easy. In this connection we must consider a legal point which, though not taken in the memorandum of appeal to this Court, has been brought to our notice in argument. It is suggested that the offences covered by’ the various charges to which we have already referred, were not committed in the same transaction, within the meaning of Section 239 of the Code of Criminal Procedure, so as to warrant the joint trial of all the accused persons on these various charges. It is quite clear that no objection was raised on this ground in the Trial Court. We are satisfied also that the whole de-fence set up by the accused persons involved the allegation that the killing of Jora and the hurt caused to the witnesses Umrao and Chaitu were incidents which occurred in the course of one and the same transaction. So that it would have been a positive disadvantage to the accused to have taken the point and to have persuaded the Court to hold two separate trials. It has been rightly said in argument before us that an allegal exercise of jurisdiction could not be condoned merely because the parties had consented to it; but we are dealing here with a specific objection based on certain words in Section 239 of the Code of Criminal Procedure. Now the question ‘ whether certain offences specified in different charges were or were not so connected together, that it might fairly be said that they had been committed in the same transaction, is after all substantially one of fact, and admissions on a question of fact made by accused persons may undoubtedly be received and acted upon by a Trial Court. On the general question of the interpretation of these words we think the law was very accurately laid down by Mr.’ Justice Stuart in the case of Sanuman v. Emperor 63 Ind. Cas. 401 : 19 A.L.J. 392 : 22 Cr.L.J. 641 and in the two cases of the Bombay High Court to which he there refers. In the case before us we see no adequate reason for interfering with the convictions of any of the accused persons solely on this technical ground If we were disposed to order a new trial at all it would be mainly in order that Trial Court might further consider the question of the responsibility of the appellants Dewan Singh, Kangalu and Kutta for the offence which was never charged against them, namely, the killing of Jora. We need hardly say that it would not be to the advantage of these accused persons if we ordered a new trial on this basis. We are not concerned here with the reasons which lead to the acquittal of Bhau Singh. As regards Dewan Singh, Kan-galu and Kutta, the evidence is that Jora was struck down by Gayan Singh immediately after the accused Kutta had incited all his companions to make a murderous attack. Some of the evidence also suggests that, at the moment when the fatal below was struck, Jora was being more or less hemmed in by the accused whom we have named. There is, therefore, evidence on which the Committing Magistrate might well have considered whether these accused persons along with Gayan Singh, were not also chargeable with the actual murder, or at least with abetment of the same. As the case stands, however, we are not disposed to order a new trial on this ground. Presumably, the learned Sessions Judge has accepted the view that the act of Gayan Singh was due to a sudden resolution taken by himself, independently of anything said by Kutta, and that the conduct of these other accused persons at the moment did not facilitate the killing of Jora or at any rate was not intended by them to do so. We lay stress on this point” however, because it influences the decision we have come to, namely, that there is no need to interfere with the sentences passed on Dewan Singh, Kangalu and Kutta. These men have in pur opinion, got off fairly easily in view of the nature of the evidence against them. Returning for a moment to, the question of the defence set up by all the accused,, we have this much to say. The law lays upon an accused person, who pleads the benefit of the provisions of the Indian Penal Code regarding the right of private defence, to satisfy the Court affirmatively, by evidence which the Court can believe’ and act upon, that he is entitled to the benefit of those provisions. If the accused in the present case, while admitting the first part of the prosecution story, had in plain and unequivocal language made it their defence that the killing of Jora was followed by a determined attack on the house of Gayan Singh in which caste-fellows of the deceased, or other sympathisers, took part, and that whatever fur-there injuries were inflicted on any member of Jora’s family after this point were the result of measures lawfully taken to protect Gayan Singh and the members of his house-hold from summary vengeance on the part of an angry mob, the whole case would have been required to be reconsidered from this point of view. The Court itself would probably have come to the conclusion that a separate trial of Gayan Singh on the charge of murder was clearly necessary, before it entered upon the trial of any other person in respect of offences alleged to have been committed after, and as a consequence of, the killing of Jora. As the case stands, it is impossible to hold on the evidence that the accused have made out a defence on these lines. They never even set up the defence which we have above indicated. Under the circumstances it seems to us impossible to do other than to affirm the conviction of the appellants other than Gayan Singh in respect of the minor offences charged against them. We have already indicated our reasons for refusing to interfere with the sentences passed on Dewan Singh, Kangalu and Kutta. As regards the remaining four appellants, Udai Singh, Kedaru, Bali and Nain Singh, we think, we are entitled, upon a broad view of the evidence in the case as a whole, to give effect to a doubt which we feel as to so whether their responsibility for joining in the riot of which they have been convicted, was really such as to merit the sentence passed upon each of them, which is a somewhat severe sentence under Section 147,. Indian Penal Code. In the result, therefore, we so far allow the appeals of Udai Singh, Kedrau, Bali and Nain Singh that we reduce the sentence passed upon each of them to one of rigorous imprisonment for two months, to take effect from the date of their conviction in the Sessions Court. We dismiss the appeals of Dewan Singh, Kangalu and Kutta. We also dismiss the appeal of Gayan Singh, confirm the conviction and sentence against him and direct that the sentence be carried out according to law. We have considered the argument specially addressed to us by his Counsel on the question of sentence, but we do not think any good reason can be given why upon the facts established by the evidence, sentence of death should not be passed on this accused.