Full Judgment
Horwill, J.
1. The appellants and three others were charged by the Additional Sessions Judge of Coimbatore of the offences punishable under Sections 148, 302, 302 read with Section 149, and Section 324, Indian Penal Code. He found accused 1, 2 and 5 guilty under Section 48 and sentenced them to three years' rigorous imprisonment each. He found accused 6 and 8 guilty under Section 148, Indian Penal Code, read with Section 149, Indian Penal Code and sentenced : them to one year's rigorous imprisonment each. He found accused 1, 2 and 5 guilty under Section 326, Indian Penal Code and sentenced them to five years' rigorous imprisonment each. He also found accused 6 and 8 guilty under Section 326, Indian Penal Code, read with Section 149, Indian Penal Code, and sentenced them to two years' rigorous imprisonment each.
2. The prosecution story is that the deceased and P.W. 2 were returning to their village after they had been to Pollachi Shandy to buy a buffalo. They reached a certain rock at about 8-30 P.M., when the eight Accused suddenly attacked them. The deceased received such serious injuries that he fell down and was never able to get up again.
[After discussing the evidence His Lordship proceeded : ]
3. However, after making every allowance for embellishment, we can feel quite sure that at least five persons, including accused 2, 5, 6 and 8, attacked the deceased while he was returning home from the Pollaehi Shandy with P.W. 2 and that some of them inflicted serious injuries in pursuance of the common object of the assembly, which must have been to cause grievous hurt, if nothing more serious. Nobody seems to have had any motive for falsely implicating these four accused. Even though we do not know which accused caused the specific injuries, they can all be found guilty under Section 326, Indian Penal Code by virtue of the provisions of Section 149, Indian Penal Code.
4. Accused 6 and 8 have been convicted under Section 326, read with Section 149, Indian Penal Code and sentenced to two years' rigorous imprisonment.. As I am finding accused 2 and 5 guilty under the same section, it seems proper to award to them the same sentence of two years' rigorous imprisonment. The conviction of accused 6 and 8 under Section 148, Indian Penal Code read with Section 149, Indian Penal Code is palpably improper. A plain reading of Section 148, Indian Penal Code seems to indicate that a person cannot be found guilty under Section 148, Indian Penal Code unless he actually has a dangerous weapon in his hands. I would therefore find them guilty under Section 147, Indian Penal Code instead of Section 148, Indian Penal Code and reduce the sentence to nine months' rigorous imprisonment. As we cannot be certain that accused 1, 2 and 5 were guilty of the overt acts attributed to them in Ex. G, their conviction under S, 148, on the first charge will be set aside and accused 2 and 5 will be convicted under Section 147, Indian Penal Code. They will be sentenced to nine months' rigorous imprisonment each.
5. In the result, the first accused is acquitted. The other appellants will have their conviction under Section 148, Indian Penal Code set aside and they will be convicted under Section 147, Indian Penal Code and sentenced to nine months' rigorous imprisonment each. The convictions and sentences of accused 6 and 8 on the third charge will be affirmed. Accused 1, 2 and 5 will be acquitted of the second charge and accused 2 and 5 found guilty of the same offence by virtue of Section 149, Indian Penal Code and sentenced to two years' rigorous imprisonment each. All the sentences will run concurrently.