JUDGMENT Bennet, J.
1. This is a criminal appeal by 30 appellants, of whom Nos. 1, 10 to 13 and 26, that is, 6 persons, have been sentenced to transportation for life under Sections 302 and 149, Penal Code, and have also been sentenced, in the case of No. 1 and Nos. 10 to 13, to two years' rigorous imprisonment, under Section 395, Penal Code, and in the case of No. 26 to three years' rigorous imprisonment under Section 395, Penal Code, the' sentences under Section 395, Penal Code, being concurrent with the life sentences. One other appellant, No. 22, has been sentenced to one year's rigorous imprisonment under Section 398, Penal Code, and the remaining accused have all been sentenced to two years' rigorous imprisonment under that section. The case has had a curious history. The occurrence in question took place on 11th October 1930, in a village called Ganeshpur, some 6 miles from Basti town. This village is inhabited partly by Brahman Chaubes, and the complainant, Deotadin Chau-be, lives in Mohalla Chaube Tola. The zamindars are three Mahomedans, Ghulam Mohammad and his brother, Ghu-lam Husain, who is a member of the Legislative Council and a Khan Bahadur, and another zamindar Mohammad Raza. Admittedly, the complainant has not been on good terms with the zamindars. On the day in question the case of the complainant is that certain peons of the zamindar, Ghulam Mohammad, came to his house and asked him to work with his plough for the zamindar on that day without wages as "begar." The complainant says that he had never rendered this free service previously and he objected to rendering the service on the day in question, and he said he would go the next day. The peons objected and a fight ensued between the complainant and these peons and they began to beat him, and he snatched a stick from one of them and struck the peon and ran off and threw stones at them. One of the peons, Tajammul, said: "Go and inform our master that the peon has been struck and ask him for orders."
2. The party of the peons then went away. Within an hour Ghulam Mohammad and Md. Raza, the zamindars, came to the door of the complainant with about 100 persons, their servants and their tenants, with the intention of punishing the complainant for assaulting the peon. The complainant defended himself with a lathi, and his uncle, Ramkhelawan, who also had a lathi, helped him. The zamindars are stated to have attacked Ramkhelawan, and the accused, appellants Nos. 1, 10 to 13 and 26, struct Ramkhelawan with lathis, and Ramkhelawan fell down, apparently dead. All the party of the zamindars then began to loot the house of the complainant and took ornaments from the complainant's mother and took everything out of the house. This occurrence took place at 9 or 10 a. m., on 11th October 1930, and the complainant states that the chaukidar, Budh-ram asked him to make a report at the kotwali, and that he asked the chaukidar to make a report because he himself was injured. He was also informed that the zamindars had guarded the ferries of the river to prevent any man of the complainant's party crossing to make a report. The father of the complainant, Tulsiram,, was present in basti on the day in question, and he received information that this assault had taken place. He states that he told a witness. Rai Bahadur Sarju Prasad, a Special Magistrate, and this witness told him to go to the Sub-Divisional Officer, who told him to go to the kotwal, that he went to the kotwali and found that the kotwal was absent but the head-oonstable was present, and also the manager of the zamindar was present and the chaukidar of the village, Budh-ram. He told the story to the head-constable and asked him to write a report, and the head-constable said that the chaukidar had come and he would write a report. Tulsiram sat down, and he states that the two accused Dina and Ghani arrived 'and went to the head-constable. He again asked the head-constable to write a report, and the head-constable again put him off saying that the report would be written when the kotwal would come. Later he was informed by another chaukidar that the report of the accused, Dina, was beingrecorded in the kotwali, and the report of Tulsiram was not being recorded. Finding it impossible to get his report recorded in the kotwali, Tulsiram went to a vakil, Mr. Rameshwar Prasad, and told him the facts and asked him to write out telegrams to the District Magistrate and the Superintendent of Police. This was done, and these telegrams were sent, and one of these telegrams is reproduced at p. 55. It is dated 11th October at 2 p. m., and is as follows:
Superintendent of Police: Basti, Ghulam Muhammad with men or Ghulam Husain looted my house and injured seriously my brother Ramkhelawan and others. Could not report: as police siding with them, Tulsiram.
3. learned Counsel has argued that this action of Tulsiram is unnatural, but we do not think it at all unnatural, and it is supported by the evidence of B. Sarju Prasad. Meanwhile the report of the two accused, Dina and Ghani, was recorded in the thana under Sections 323, 504 506, Penal Code, after 1 p. m. That report states that the the party of the peons went to the house of the complainant, Deotadin, and that Bhawanibhik and Khelawan were sitting there, and they asked these three persons cither to pay their rent or go to the zamindar's house to make a statement, and they refused to do cither, and they abused the peons. The peons replied with abuse, and the other party began to beat them and said they would kill them if they saw them again. It is clear that this account is incomplete and that it stops at a certain state in the proceedings and does not tell us what eventually happened. Now Ramkhelawan died of his injuries on the night of 11th October and it therefore became necessary for some action to be taken. The chaukidar was again sent to the thana on 12th October, and he made a report after 8 O'clock against Dina, Ghani and Tajammul, peons of the zamindar Ghulam Mohammad. This report states that the peons demanded free service of Deotadin with his plough, and he refused to give it, and a fight took place between Deotadin and his brother Rampher, on one side, and Dina and Ghani, on the other. Dina and Ghani went back to the zamindar's house and came with a certain number of men, who are mentioned, including the appellants Nos. 1, 12 and 26, and Ramkhelawan, who was a very old man, and present, and they asked him to say where Deotadin and Rampher were and he did not tell. Thereupon, Dina, appellant No. 11, Ghani, appellant No. 10,. and Tajammul, appellant No. 26, began to beat Ramkhelawan with their fists and kicked him and dragged him to the door of Muttra and left him there. Khelawan's forehead was fractured and bled. Then on the morning of the 12th the chaukidar heard from Tulsiram's wife that-Khelawan was dead.
4. Now this report differs from the story of the complainant in the point that it makes no mention of any looting taking place, and except for incriminating three persons for assaulting Khelawan in the mild manner, the report does not incriminate anyone. Moreover the report was made 22 hours-after the occurrence, although the distance to the thana is only 6 miles. The case for the complainant is that the police have all along been siding, with the accused owing to the influential position of the zamindars, who are the-leaders of the accused. The kotwal and the second officer went down to the village on the morning of 12th October, and the kotwal began an investigation. In that investigation certain property was given up on behalf of four accused; that is, as stated by the accused officer, Babu Nandaa Shukul, Ex. 1, Masur, was given up from the house of Budhram, accused, by his wife Mt. Birja; Ex. 2 peas, were given up from the house of Ti-mul, accused, by Mt. Budhna, his wife; Ex. 3, a tat, was given up by Bale, accused; Ex. 4, a plough and yoke, was given up by Autar, accused. The accused Budhram made a confession,, and he was sent to have his confession recorded on 14th October, and he was sent to jail-custody and on the 15th October he was produced before a Magistrate, and he made a confession. This confession states that Raza, Mohammad and Ghulam Mohammad asked him to go and loot the house, of Tulsiram and Khelawan, and he went in a party of 100 or 125 man, of whom he names a number. The house was plundered and khelawan was. beaten by the two zamindars and by the other accused. Certain property was taken away, including the masur which, his wife gave up to the Sub-Inspector. The disturbance arose because the zamindars had asked the complainant to work with his plough for nothing. Now the case of the complainant, supported by the evidence of a number of witnesses and by this confession of an, accused person and by the finding of property looted from the complainant, appeared a strong one. We are also told by the kotwal that he saw there were marks on the door of the complainant which appeared to him to be caused by the butt-ends of lathis, that the corn bins in the house of the complainant were broken open, that sendur and leaves of some Hindi books were scattered about, that there was corn scattered about in the house and at the gate, and that there was no property left in the house.
5. This was also observed by the Circle Inspector who came down on the 15th and he was accompanied on the 16th for a short time by the Superintendent of Police. The action however taken at this stage by the police is extremely extraordinary. Having obtained this evidence of a confession and of the finding of property, the police produced witnesses under Section 164, Cr.P.C. on the 24th October with the object of contradicting the evidence already recorded. That is, Mt. Birja, the wife of Budhram, was produced to make a statement before' a Magistrate to the effect that the masur which she had given up was not, as her husband had confessed, masur stolen in this dacoity, but was masur which a person called Ramanand had told her to keep for the purpose of giving up to the Sub-Inspector.
6. A similar statement was recorded of Harkhu, the brother of Budhram, and also a statement of one Sri Niwas and of one Bhagi. The statements of these two latter persons were intended to show that no dacoity had been committed and that there was merely a very ordinary marpit. The Sub-Inspector therefore by this date, 24th October, was endeavoring to show that no dacoity had been committed, and that the only offence was an assault which resulted in the death of Ramkhelawan, and in which a limited number of accused persons were involved. When the complainant found that this view was being taken by the police he had a complaint filed in Court on the 27th October, and in this he set forth the case against 58 accused persons of murder and dacoity, as we have already given it. On the following day the Sub-Inspector of kotwali sent his final report for the chalan of six persons under Sections 304 and 149, Penal Code. He did not send any final report in regard to the charge of dacoity, and he did not make any further enquiries into the charge of dacoity, and he went on leave on 20th December. The only proceeding in his diary subsequent to that is a final report, charge-sheet B, on 21st January 1931. By that date the proceedings in the Court of the Magistrate on the complaint had. finished. The Magistrate investigated the chalan of the police of six accused and the complainants case against 58-accused persons in the same proceeding, and he discharged all the accused persons of the charge of dacoity and committed to sessions only the persons who had been challaned. by the police under Sections 304 and 149, Penal Code. His order was dated 6th.. January 1931. learned Counsel has argued to us that it was necessary for the Sub-Inspector to wait for the result of t he Magistrate's inquiry and for his committal order to Sessions before the Sub-Inspector could make a final report on the charge of dacoity, and. that the reason why he did so was because he desired to make a recommendation under Section 169, Criminal. P.C., for the release of the accused persons from custody. Now, Section 173-lays down:
Every investigation under this chapter shall'1 be completed without unnecessary delay, and as soon as it is completed, the officer in charge o£: the police station shall--(a) forward to the Magistrate empowered to take cognizance of the offence-on a police report, a report.....
7. This lays down that as soon as | the investigation is completed, the investigating officer is to send a re- -port to the Magistrate. There was no justification whatever for the Sub-Inspector to delay his final report on the charge of dacoity until the proceedings before the Magistrate had terminated. The excuse of Section 169 is clearly an error, because under that section a Sub-Inspector himself releases accused persons on bail, and forwards his proceedings to the Magistrate. There was no need for the Sub-Inspector to take any steps under Section 169, P.C. after the accused persons had appeared before the Magistrate, for the question of their admission to bail was one for the Magistrate and not for the Sub-Inspector. Section 169 is only employed while the case is at the stage of the investigation by the police. But we find that the Sub-Inspector in this case-by refraining from sending a final report on the charge of dacoity managed to exercise some control over the proceedings of the Court--a control which he would not have been able to-do if he had sent his final report. Thus we find that after the inquiry began before the Magistrate he made an application for the release of the accused person, Budhram, who had confessed, and Budhram was released, against the application of the complainant, and Budhram retracted his confession. It is difficult to see what motive the Sub-Inspector could 'have had for this action other than that Budhram should be subjected to improper influence to induce him to refract his confession. His report for the release of Budhram was made on 29th October 1930. We are of opinion: that the action of the Sub-Inspector was highly improper. Any question of the release of Budhram should have been on an application of the prosecution as represented by the Superintendent of police or the prosecuting Inspector, but by the method of keeping back his final' report on the charge of dacoity the Sub-Inspector managed to retain a position which enabled him to make such an application.
8. The learned Sessions Judge has sum-marised the reasons which lead him to consider that the action of the police was hostile to the complainant and that the police were trying to side with the accused. We agree with the reasons given by the learned Sessions Judge. Those reasons are briefly, in the first place, the action of the police in preventing the complainant's father, Tulsirara from making a report; secondly, "the action of the kotwal in delaying his final report on the charge of dacoity; and thirdly, the fact that the police sent up witnesses who were witnesses who would not carry weight with the Court, and that the police suppressed the witnesses whom the Court ultimately accepted. The witnesses sent up by the police were all persons from other villeges and of those five witnesses, two were related to the accused, Autar, and the witness, Surajbali had in the first place made a statement to the police and denied any knowledge of the occurrence. It is obvious that these witnecesses could not sustain the case for 'the prosecution. On the other hand, there were nine witnesses produced before the Court and named all along by the complainant. The reason why the Sub-Inspector did not send up any of these nine witnesses is because he says they were connected with the complain-ant. In every case of dacoity the prosecution produce the complainant and his family and the neighbours who have witnessed the occurrence, and there is no reason whatever why the Sub-Inspector should not have followed the usual procedure in this case. We have also noticed the extraordinary procedure of the Sub-Inspector in regard to the production of witnesses for defence under Section 164, Criminal P.C. Having all these points before us we consider that the learned Sessions Judge was absolutely correct in finding that_ the police have been acting on the side of the accused.
9. This action of the police has an important bearing on the next point. It was argued for the defence that certain of the prosecution witnesses on whom the lower Court has relied, had previously made statements to the police which are not altogether consistant with their statements in Court. The difference in these cases consists chiefly in putting" Khelawan as talcing part in the first affair between the peons and the complainant, whereas according to the statements of the witnesses in Court, Khelawan was only present during the second affair when the party of the zamindar arrived with the intention of assaulting' the complainant. We do not consider that any very great weight is to be laid down on this difference, because the police in recording the statements may not have very clearly understood the story of the complainant, and a certain amount of confusion is often introduced into the statements in police diaries, largely because those statements are taken briefly and are not taken in the same manner as depositions in Court. But we also consider that the attitude of the police officers in the present case would lead them to record the statements carelessly, if not intentionally wrongly. Accordingly we do not think that the statements of the witnesses are weakened by the discrepancy pointed out in regard to Khelawan. The case for the complainant has been consistently put forward from the time of his complaint and even earlier, as we find his statement of the 12th October, as taken down by the kotwal, is substantially the same as his statement in Court. No reason has been shown to us why the statements of the nine witnesses, on whom the lower Court has relied, should be discarded.
10. These witnesses state that the house was looted and the grain and other property were taken away The story as told by the prosecution is an extremely natural one. It is not unusual for zamindars to endeavour to force their tenants to work free of charge as "begar," and it is not unusual for zamindars to resort to force if the tenants refuse to work. Force in this country usually leads to occurrences of a nature like the present where lathis are freely used and someone is lulled. The story therefore is quite a probable story. The medical evidence shows that there were 17 injuries on the deceased, Khelawan, and that there were three injuries on his head, of which two external injuries were connected with a very large fracture of the skull which caused death. This evidence shows that Ramkhelawan was beaten by lathis, receiving a number of blows, and that he died from the result of blows on his head. We are asked to consider that the offence would only come under Section 304, Penal Code. But in view of the medical evidence we consider that persons who took part in the assault must have intended to cause such injury as would in the ordinary course cause death. The offence therefore is under Section 302, Penal Code. The evidence shows that the six persons who have been convicted under Sections 302 and 149, Penal Code, have been consistently named throughout.
11. It has been argued to us that it is improper that tenants of one of these brothers, Ghulam Husain, would take part in an assault on behalf of the other brother and his tenants, and the reason given is that there has been litigation between these brothers. The evidence of the complainant is that for the last three years the brothers have been on good terms. Even if the brothers had their private differences, it is quite natural for their underlings to unite in the suppression of recalcitrent tenants. We consider that the conviction: by the learned Sessions Judge was correct. The sentences under Sections 302 and 149, Penal Code, are of transporation for life. We note that the learned Sessions Judge has recommended that these sentences should be reduced in the case of four of the appellants. He has based his recommendation on the evidence of some witnesses for the prosecution that the other two appellants concerned in this offence struck the two blows on the head. Evidence ' of this nature as to which persons, struck which blow is never very reliable, and even if it were, we are of opinion that where a number of persons take part in an assault with lathis on a particular individual, in this case on an old man, then all the persons, taking part in that assault, are equally guilty, and we do not think that as a general rule distinction should be drawn in regard to the particular person whose lathi does actually cause the fatal injury. Accordingly we consider that the sentences on these six accused should not be reduced, and we invite the attention of the Local Government to the fact that we do not agree with the recommendation of the learned Sessions Judge that the sentences on four accused should be reduced.
12. In regard to the conviction of all the accused for dacoity we consider that those convictions are correct, and learned Counsel for appellants did not show that any accused stood in a different position from the other. The sentences passed for dacoity are extremely lenient. The result is that we dismiss all these appeals. Those accused who are on bail must surrender to their bail and complete their sentences.