JUDGMENT

Trevelyan and Banerjee, JJ. - In this case two persons have been convicted by a Judge and jury, and, of course, in accordance with the law, it is necessary for us to find a defect in the charge, or in some other portion of the procedure, before we can interfere with the conviction. On the question of sentence, however, that is in our hands.

2. The occurrence which led to this charge was a dispute about the possession of an orchard. It was claimed by Esaf, who is one of the appellants before us. The case of the prosecution is that the two appellants, with others, went to this orchard for the purpose of gathering the fruit of some mango trees growing there, and an altercation arose between them, and a man named Nidu, who was acting on behalf of the rival claimants to this orchard. In the end it is said that the accused Sabir struck Nidu on the head with a lathi, and that two days afterwards Nidu died. Sabir has been convicted u/s 304 of the Indian Penal Code of causing the death of Nidu, and there is no matter in the charge affecting his conviction under this section which can be impugned. The only question, so far as he is concerned, is the question of punishment. He has been sentenced to seven years' rigorous imprisonment. That, of course, is a very heavy punishment. There is in his or the circumstance that there was no premeditation before this attack was made. It was, apparently, the result of momentary excitement, and there was, so far as we know, only one blow struck. On the other hand, in the case of attacks or assaults where a blow so severe as to cause a man's death is given, and where weapons, which are in efficient hands unquestionably lethal, are used, it is impossible to inflict a light punishment. We do not think we would be erring if we were to reduce the sentence on Sabir to three years' rigorous imprisonment. We do not think we can reduce it to anything less, and accordingly we direct that the conviction be upheld and the sentence reduced to three years' rigorous imprisonment.

3. The case with regard to Esaf stands upon an entirely different footing. He has been convicted u/s 148 and Section 304, read with Section 149, of the Penal Code. It is not disputed that there is no case against him u/s 148 of the Penal Code. That section says: "Whoever is guilty of rioting being armed with a deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, shall be punished," etc., and so on. The learned Sessions Judge is under the impression, acting upon what he calls the analogy of Section 146 of the Code, that if one member of an unlawful assembly is armed with a deadly weapon, or a weapon of offence, the other members' of the assembly can be charged u/s 148. That is not so. It is only the actual persons who are so armed who can be charged under that section. The only way in which one person can be made liable for the acts of another is u/s 149. There being no case u/s 148, we think that the conviction is wrong under the latter section and must be set aside.

4. There is also, we think, no case u/s 149, read with Section 304. It was not really argued that the members of this assembly knew it to be likely that homicide would be committed in prosecution of the object of that assembly. With regard to the common object charged, as to which we shall refer presently, that is to say, the taking away the mangoes from the trees, the learned Judge has, we think, in his charge, extended the phraseology of Section 149 too far, and having regard to the part which Esaf is proved to have taken, assuming the evidence to be true, in this matter, we think it would be straining the law to apply to it the provisions of Section 149 and make him liable for the death of this unfortunate man Nidu.

5. Now comes the real question in the case, and it is the only question which has presented any difficulty to us. Although Esaf may not be properly convicted either u/s 148 or Section 149 of the Penal Code, still it i