Queen-Empress vs Duma Baidya and Others

We have no reason to doubt that the three appellants made an attack on the deceased Koraga in the manner described by the first and third

prosecution witnesses. The effect of the blow given by the first appellant on the head of the deceased with a thick stick or ''bludgeon'' was to cause

his death, and we consider the first appellant was rightly convicted of murder. But the conviction of the second and third appellants for the same

offence we cannot uphold. There is nothing to show that there was a common intention on the part of all the three accused to inflict such injury as

would cause death; and no such intention as regards the second and third accused can be gathered from the particular acts of violence proved

against them which in no way contributed to the death of the deceased. Though the object of all was no doubt to give the deceased a beating, the

second and third accused neither instigated nor participated in the fatal blow dealt by the first accused. They cannot, therefore, be held responsible

for the consequences of such act, and it is not easy to follow the reasons given by the Judge for holding these two persons also guilty of murder.

We, therefore, alter the conviction of the second and third accused into one of voluntarily causing hurt u/s 323 of the Penal Code and convert the

sentence passed upon them to one of four months'' rigorous imprisonment. The sentence passed by the Judge of ''penal servitude'' for life on all the

three accused was in itself illegal, as the punishment of ''penal servitude'' is applicable only to Europeans and Americans, so that we must also alter

the sentence passed on the first prisoner. In lieu of the sentence of the Judge we sentence the first appellant to transportation for life and dismiss his

appeal.