1.The appellant Hanumanprasad was sentenced to death under S, S02, Penal Code, by the Additional Sessions Judge, Hoshangabad, for having caused the death of Bamkaran after an attack on him on 26th May 1948 at Bundra, Harda tahsil, HoBhangabad district. With the appeal will be considered the reference made under Section 374, Criminal P. C, for the confirm tion of the death sentence, [After discussing facts and evidence (pares a to 11) their Lordships proceeded:]
12. III view of the material changes in the versions of Sheoram, Kashibai and Bahadur, [witnesses in the committing Court-Ed.] the trial Court was fully entitled to have reoourse to the provisions of 8. 288, Criminal P. 0., to bring their depositions in the committing Court on record. These witnesses had undoubtedly been won over in the interim and it may rea-Bonably be presumed that the malguzar Badri-prasad was responsible for this as well as for subornation of the testimony of Sitaram (p. w. 7) and Ramkaran (p. w. 9), carpenter, who were working for him when the attack took place.
13. The evidence so brought on record was good evidence and it did not require corrobora-tion from another source. This was the view taken in Paramanand v. King Emperor, 1940 N. L. J. 459 : A.I.R 1940 Nag 840:42 Or. L. J. 1 by a Division Bench which followed Abdul Gani Bhurya v. Emperor, 68 Cal. 181 : A.I.R. 1926 Cal. 235: 26 Cri. L. J. 1577 and Narin-jan Singh v. The Crown, I.L.R. (19S6) Lah. 419 : A.I.R. 1936 Lah. 87: 87 Or. L. J. 667. In Emperor v. Tulli, 47 all. 276 : : AIR1925All185 , it was also held that under Section 288, Criminal P. C, as now amended, it is competent to a Court of Session, if it considers that the evidence given by witnesses before it is false whilat the evidence given by the same witnesses in the Committing Magistrate's Court was true, to act upon the evidence given before the Magistrate in preference to that given before itself. Evidence so transferred is, as pointed out in Mohammad Sarwar v. The Crown, A. l. R. (1943) Lah. 697 : A.I.R. 1942 Lah. 215 43 Cr. L. J. 828 substantive evidence and usable for all purposes without having been specifically put to the witness, although, as a Division Bench of which one of us was a member pointed out in a recent case, it is desirable as a matter of practice to put the previous deposition to the rosiling witness. [Paras 14 to 20 deal with facts and evidence-Ed.]
21. The learned Additional Sessions Judge had undoubtedly taken an unduly grave view of the whole case and a view which in one respect at least was based on an error. We refer to his comments in para 85 of his judgment to the effect that no injury was found on the person of the accused, although there was the testimony of Shri S. K. Pradhan that there were three abrasions on the appellant's per-son. Clearly enough, the appellant had no intention of causing Ramkaran's death and the learned Additional Government Pleader conceded that Section 802 and part one of Section 304, Penal Code, were not applicable to the case. The weapon used by the appellant was not recovered, but was not formidable, as, according to Sheo-ram, it was only about 1 inch in diameter and lJ-2 cubits long. A weapon of that kind would not have been heavy and there was nothing to show that the appellant had used be to hands when he struck Eamkaran on the head with it. Moreover, if he had had any real intention of causing Eamkaran's death he would have followed up that blow with other blows on a vital part whereas the evidence shows that the two succeeding blows must have been on the right eyebrow and right elbow. At the same time, in view of the large number of injuries on Eamkaran's person, it was clear that the attack on him was not an ordinary attack but a sustained ajad determined attack which included blows with a lathi and rough uBage when Bamkaran was prostrate on ground whioh, according to the pat. wari Laxminaran (P. w. 8), waB sandy with particles of sand larger than those found in ordinary sand.
22. The appellant had, in our view, caused Eamkaran's death with the knowledge that his act was likely to cause death, but without any intention to cause death, or to cause such be dily injury as was likely to cause death. The contention, therefore, of the learned Additional Government Pleader that he was liable under part two of Section 804, Penal Code, was correct.
23. The conviction and sentence under Section 302 are accordingly set aside and the appellant is convicted under part two of Section 804, ibid. Having regard to all the circumstances of the case, a sentence of i years rigorous imprisonment will be appropriate and we order accordingly.
24. Subject to this modification, the appeal is dismissed.