1. Forty persons were committed to the Court of Session and were tried for charges punishable under Sections 147, 395 and 436 read with Section 149 of the IPC One of them died during the trial, while twenty were acquitted. The remaining nineteen who have preferred these appeals were convicted. There were as many as 51 charges against each of these accused persons, but they were convicted for some of them only, details of which will appear while considering the case against each appellant separately. The punishments were made to run concurrently and ranged from R. I. for 2 years to 10 years.
2. Appellants Rehman Ulla, Manik Miah, Tabai Ulla and Darash Miah alias Darash Master preferred appeals from the Jail which were registered respectively as Criminal appeals Nos. 17, 19, 21 and 23 of 1956. A joint appeal was also filed on their behalf and 4 other appellants namely, (i) Abdul Ilamid alias Hamid Mia, (ii) Rahaman Khan, (iii) Chandu Mia and (iv) Wahabulla through Counsel which was registered as Criminal appeal 1N0. 9 of 1956.
3. Appellants (i) Abdul Sobhan (Criminal appeal No. 8 of 1956), (ii) Arab Ulla (Criminal appeal No. 20 of 1956) and (iii) Cheraguddin (Criminal appeal No. 14 of 1956) also preferred appeals from the Jail but later they were represented by Counsel in those appeals. The remaining 8 convicts have preferred appeals from the Jail and they are not represented by Counsel.
4. All these appeals were heard together and this judgment will govern them all.
5. The appellants who are all Muslims belong to Kamalpur which is the Head quarter of Kamalpur Sub-division in Tripura District, or villages near about the town of Kamalpur. Village Rupaspur adjoins the town of Kamalpur and has practically become a part of it. Villages Mohanpur and Ganganagar which are within a distance of about two miles from Kamalpur are its hamlet villages. These villages including Kamalpur are on the border of Tripma and are surrounded on the north, east and west by Pakistan as will be seen from the Map (Ext. P-2).
6. The incidents in question took place on 1-4-50 Saturday) and 2-4-50 (Sunday). That was a period when there had been trouble on the borer between the two countries and it appears that Hindus from Pakistan had also migrated and given harrowing accounts and it is not unlikely that Muslims residing in this area of Kamalpur Sub-division began to fear for their safety. Be it whatever the cause, the Muslims from this area began to migrate to Pakistan and on 1-4-50 the exodus was in large numbers. Efforts on the part of the Government officials and public to check this met with no success.
It is alleged that these Muslims collected on the other side of the border where they were joined by Pakistani Muslims some of whom were even armed with fire arms. In the afternoon of the same day this mob of Muslims about one thousand strong attacked villages Mohanpur and Ganganagar and forcibly removed cattle and other moveables from the houses of Hindus. Besides looting these houses they set them on fire. The S. D. O. (P.W. 21) went to Mohanpur with some Police and the mob had to be dispersed after opening fire. Assistant Sub-Inspector Radha Mohan Singh (P.W. 28) was deputed to Ganganagar and there also the Police dispersed the mob after resorting to firing.
This went on up to about 8 P.M. and all was quiet till about mid-night when the Muslim mob again attacked with cries of 'Alla-IIo-Akbar' and gun fire, Rupaspur and Kamalpur. The mob looted and set on fire houses and Government offices. The Police force offered resistance but due to insufficient number and shortage of ammunition had to withdraw. The town was evacuated and all withdrew to a safer zone. Plunder and arson by the attacking mob continued till about 10 A. M. of Sunday (2-4-50).
7. The S. D. O. (P.W. 21) realizing the helplessness of the situation had in the meantime collected the currency notes in the Sub-treasury and left on foot for Agartala accompanied by an armed con- stable and a clerk, where he reached crossing the jungles on Monday early morning. He reported the incident and deposited the money in the Government treasury at Agartala.
8. In the meantime Janardhan Dev Barman CP.W. 20) who was then the Second Officer attached to the Kamalpur Police station had also left on foot and reached Manik Bhandar where he met Sachindra Lai Bhownik, President of the local Congress Committee who had also come away for fear of his life. There is an Air strip at Manik Bhandar and the Pilot of a freighter plane which chanced to land there gave them a lift to Agartala. On reaching there on Sunday at about 3 P.M. they lodged a report with' the Chief Commissioner and the Superintendent of Police and a military force was despatched to the area.
9. The result of the depredations of the mob was that the entire town of Kamalpur was devastated. Dhirendra Biswas, Officer-in-charge of the Police station, Kamalpur (P.W. 29) returned to Kamalpur on Tuesday (4-4-50) and recorded his report in the form prescribed for recording first information reports (Ext. P-l). Some particulars about this report might be mentioned here as some legal and other objections were based on it during the course of his argument by tile learned Counsel for the appellants.
The place and date of incident are shown as Kamalpur town and 1-4-50 respectively. The informer and the recorder of this report is the same person namely, the Officer-in-charge himself. As against the column for the name and address of the accused the entry is 2 or 3 thousands of Muslims and Pakistani Ansar and Pakistani force.
10. The Officer-in-charge (P. W, 29) examined witnesses between 10-5-50 and 26-6-50 but could not effect arrest of any of the culprits as they had left and gone to Pakistan. He was however transferred before he could complete the investigation, most probably for the inaction in the matter as disclosed in his evidence, for which the explanation offered by him was that he was not in a fit condition of mind after having seen, such a devastation with his own eyes. He left handing over the charge to Sub-Inspector Janardhan Dev Barman CP, W. 20) on 10-8-50.
His successor M. C. Choudhury (P.W. 30) who took over as Officer-in-charge of the Police station on 22-9-50 examined Bharat Lodh (P.W. 17) on the same clay and submitted a charge sheet on 6-1-1951 against 175 persons of which only 4 had been arrested. The rest were shown as absconders. Those arrested were (1) Abdul Gafur Sardar, (2) Sona Ulla, (3) Abdul Nabi Moulvi and (4) Abdul Halim none of whom is an appellant.
11. On 10-4-53 he (P.W. 30) submitted another charge sheet in respect of the same offences as in the previous charge sheet there was no statement as regards the facts constituting tile offences. This second charge sheet was in respect of 141 persons only and the explanation for the reduction of the number by 34 is given by the witness to be that in the first charge sheet they were described not by their names but as sons or relations of some other named persons.
In this charge sheet also all the accused were shown as absconders except the 4 who had been ar- rested in connection with the first charge sheet and released on bail. On 10-4-53 this witness had ceased to be the Officer-in-charge of Kamalpur Police station having been transferred from there in 1952.
12. The second charge sheet submitted on 10-4-53 was submitted during the pendency of the case started on the basis of the first charge sheet of 6-1-1951 but it appears that no cognizance was taken on it till 24-8-53.
13. On 24-8-53 the S. D. M., Kamalpur (Sri S. Sarkar) passed the following order in the order-sheet of the case started on the basis of the first charge sheet dated 6-1-51 ;
Both complainant and P.Ws. absent to-day. The I/C. Court Police Officer prays for adjournment till arrival of the Ct. S. I. Public Prosecutor appointed in respect of this case is also absent to-day. The case is long pending and no further time shall be allowed. The petition filed by the Ct. S. I. for withdrawal of the case under Section 494 of Cr.PC is duly considered. I have carefully gone through the record. There is no valid ground to allow withdrawal of the case. It appears the charge sheet is hopelessly defective and the facts constituting the offence are not stated in it as required u/a 190 (a) of Cr.PC As such cognisance cannot be taken upon it.
Let all the accused persons be discharged forthwith.
14. The same Magistrate also passed the following order in the opening order-sheet of 24-8-53 in the case started on the basis of the charge sheet dated 10-4-53 and received on 11-4-53 presumably after the accused had been discharged in the first case:
The charge sheet which appears to have been received on 11-4-53 is put up to-day. Delay is to be explained. This is highly irregular. Register G.R. Under Sections. 436, 395 and 34 IPC Prosecution is silent. Ct. S. I. is reported to be away from station.
Issue non-bailable warrants against the accused persons
15. The case was after sometime transferred to the file of Sri K. P. Datta, Magistrate 1st class, Agartala and out of the 65 accused whose presence had been secured he discharged 25 and committed 40 to the Court of Session on 13-12-55.
16. It appears that a charge sheet was also filed on 22-10-51 against 55 persons under Sections 436 and 395 IPC in respect of the arson and loot at the house of Bharat Lodh (P.W. 17) which had been investigated on the report of this witness. In that case the accused persons were discharged by Sri S. K. Chakraborty, S.D.M., Kamalpur for reasons recorded in the order-sheet dated 24-2-55 which runs thus:
Out of 39 accused persons 38 are present today and petition moved for time to produce the absentee 3 accused. Perused prayer submitted by the Ct, S.I. for withdrawal of the case and also Perused Ct. S.I.'s note submitted to S. P. in this connection. Ct. S.I. submits that since F.I.R. is missing the case is very weak. Now as the prosecution would not proceed with the case and prays for withdrawal it is ordered that all the 39 accused persons in this case are discharged under Section 494 (a) Cr.PC
17. I have set out the above facts in some detail as they will be necessary for the consideration of some of the legal objection raised on behalf of the appellants.
18. Thus the prosecution case was that the appellant and others formed an unlawful assembly with the common object of committing the offences already mentioned and the assembly used violence and committed arson and dacoity.
19. The defence was one of denial. Some of the accused also stated that in February 1950 there were riots at Bhairab Bridge in Pakistan and Hindu refugees from Pakistan came to Kamalpur and hearing their tales of woe the Hindus of Kamalpur some of whom were related to them decided to take revenge. The local Muslims approached the then S. D. O. who assured them that he would not tolerate their oppression by the local Hindus but on his being succeeded by Sri Bhattacherjee (P.W. 21) things took a bad turn and from 30-3-50 the refugees and local Hindus started plundering and burning the houses of Muslims in different villages and when the Muslims approached the S. D. O. and the Officer-in-charge of the Police station they got no help.
On 1-4-50 also houses of Muslims were burnt and looted by the Hindus and the Muslims fled through the jungles to Pakistan. No witness was however examined on the side of the defence.
20. I now proceed to consider the various legal objections raised by the counsel for the appellants. First might be considered the objections on the ground of mis-joinder of charges and trials. The argument of the learned Counsel was that this was a clear case of mis-joinder as the offences could not be said to have been committed in the course of the same transaction and therefore Section 239 (d) of the Cr. P, C. did not apply, and since such a mis-joinder was not a mere irregularity curable under Section 537 by an illegality the whole trial was vitiated.
He urged that on this ground alone the convictions were liable to be set aside and a re-trial ordered. He relied on Subrahmania Ayyar v, King Emperor, ILR 25 Mad 61 (PC) (A); Gunno v. Emperor A.I.R. 1934 Oudh 325 (B); and Raj Narain v. The State : AIR1953All448 .
21. It is well settled that Section 239 of the Cr.PC deals with the position as it exists when the charges are framed and not with the ultimate result of the trial. Thus the relevant point of time for determination of the legality of the joinder of charges is that of accusation and the Court in framing the charges should look to the facts of the accusation when the accused persons were put on trial.
The view that the decision of the question whether the joint trial of several persons is bad on account of mis-joinder of persons and charges depend on the facts appearing on the facts eventually established as result of the evidence adduced in the trial finds support from a series of decisions and was also affirmed by the Privy Council in Babulal Chaukhani v, Emperor A.I.R. 1938 PC 130 (D) in which their Lordships remarked that the one and only limitation there is (in Clause (d) of Section 239) that the accusation should be of offences committed in the course of the same transaction, and clause deals with three matters accusation, charge and trial and does not say anything about verdict nor does it say that the accused persons should be 'rightly accused' or 'accused and convicted'.
22. As already seen in the present case the accusation was that the Muslims from India crossed over to Pakistan where they were joined by Muslims of Pakistan, They then conspired to attack the villages in question and commit dacoities and burn down the houses or Hindus. It cannot be said, and it has not been suggested that there was no material before the committing Magistrate and the learned Sessions Judge who amended the charges for framing the charges that were framed. In fact the learned Counsel did not dispute the incidents and what they contended was that the prosecution had failed to prove that the appellants were present and took part in the incidents or offences committed.
23. An examination of the evidence adduced at the trial would also show that the prosecution proved beyond the shadow of a doubt (keeping aside for the present question who were the culprits) that the Muslims of Kamalpur etc., left with bag and baggage on 1-4-50 and crossed over to Pakistan, where they joined the Muslims from Pakistan. This assembly of more than one thousand was armed and was formed on the other side of the border. It then crossed the border and attacked the villages as already slated.
It might be also noticed that it was the case of the defence itself that the Muslims of these villages had to leave and go to Pakistan because the Hindus started looting and burning their houses. Naturally there was cause for a strong desire to retaliate, and as is shown by the overwhelming evidence on the side of the prosecution the carrying out of this desire was facilitated by the aid that was readily available on the other side of the border from the Pakistani Muslims who had gathered there even with fire arms.
In the circumstances the only conclusion that is possible to be drawn would be that this gathering conspired to take revenge by burning and looting the Hindu houses in that area. It is immaterial that batches from this gathering went to different villages or different houses or some may have dropped out and others may have joined so long the common intention was there.
24. It is obvious that no general rule can be laid down as to when different offences can be said to have been committed in the course of the same transaction and the question must be decided on the facts of each particular case. It has been held in some cases that if the accused start together for the same goal and commit a series of acts they can be tried at the same trial though the acts might be separated by intervals of time or though some of them might have done an act for which the others may not be responsible.
In other cases it has been held that when the accusation against all the accused persons is that they carried out a single scheme by successive acts done at intervals and there was a complete unity of project and the whole series of acts were so linked together by one motive and design as to constitute one transaction a joint trial is not only valid but desirable.
25. In A.I.R. 1938 PC 1.30 (D), their Lordships said:
Whatever scope of connotation may be included in the words 'the same transaction', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to -unify the acts done in pursuance of it.
26. In Aftab Ahmad Khan Yar Khan v. State of Hyderabad : 1954CriLJ1155 the accused who was a reserve Inspector went to a village accompanied by Rajakars and Police. He arrested two persons there and took them to another village. Outside, the village he spotted 4 men and shot at them, Two of them were injured and others ran away. He caught them and brought them to the spot where one of the persons injured was lying. As he was not dead he again shot him in the chest and killed him, lie released two of the persons on .the intervention of others, but kept the other two in wrongful confinement until the morning and released them only on one of them paying him a certain sum of money. Their Lordships held that the series of acts attributed to the accused constituted one transaction and the case fell squarely within the purview of Section 235.
27. Applying these tests I have no doubt that the offences in question must be regarded as committed in the course of the same transaction.
28. A.I.R. 1934 Oudh 325 (B) and : AIR1953All448 which is also a case of the Oudh Bench and in which reliance was placed upon the first case are distinguishable from the present case. In the first case there was nothing to connect the offences and the mere fact that the six dacoits were committed by the same persons during the same night was not found to be enough to make them part of the same transaction. In the other case dacoities were committed by the same persons during the course of one night in one village.
The Court held that if a person or body of persons commits a number of similar offences within a certain area the offences do not necessarily form part of the same transaction unless some continuity of purpose is established between them. The present case thus differs from these cases inasmuch as the different offences in the present case were the result of conspiracy. A conspiracy means nothing more than a combination and agreement by persons to do some illegal act or acts. Generally such an agreement cannot be directly proved and is a matter of inference to be deduced from the criminal acts done by the alleged conspirators. I have already shown that this inference can be safely drawn in the present case on the basis of the circumstances and die evidence present in the case.
29. But even if it were to be conceded for the sake of argument that there was a mis-joinder as alleged by the appellants their contention that it will vitiate the whole trial cannot be upheld. Retrials were ordered in the two Oudh cases mentioned above on the authority of the well-known case of Subrahmania, ILR 25 Mad 61 (A), in which it was held that Section 537 of the Cr.PC cannot be invoked to cure an illegality and is of help only when there has been merely an irregularity.
It was however over-looked by both the parties that this position has undergone a change on account of the amendments incorporated in Section 537, Gr. P. C, by the Code of Criminal Procedure (Amendment Act) 1955 (No. 26 of 1955), and which was applicable to the present trial by virtue of the saving clause in the end of Section 116 of the amending Act.
30. The word 'Charge' which occurred in Clause (a) of Section 537 after 'Warrant' has been omitted and Clause (b) which deals specifically with the incidence of charge has been added to make it clear beyond doubt that any mis-joinder of charges shall also be deemed to be an error or irregularity within the section. That clause runs thus:
(b) of any error, omission or irregularity in the charge, including any mis-joinder of charges.
31. It follows therefore that such a mis-joinder would now be only an irregularity curable under Section 537 unless it is shown that the irregularity has in fact occasioned a failure of justice. The explanation at the end of Section 537 requires that in determining whether the irregularity has occasioned a failure of justice the Court shall have regard to tile fact whether the objection could and should have been raised at an earlier stage in the proceedings.
32. The question whether there was any such miscarriage of justice might now be examined assuming though not admitting that there was a mis-joinder of charges. It was neither alleged nor shown before me that the objection on the ground of alleged mis-joinder was raised at an earlier stage. It is clear that such an objection is of a kind which should be raised at the earliest opportunity so that the Court if it upholds the objection may order separate trials and save harassment to all concerned.
33. The complaint of the counsel for the appellants was that the appellants were highly prejudiced in their defence by the trial of so many accused and so many charges at one trial. It was further urged that the provisions of Section 239 (d) are not mandatory but only discretionary and in the circumstances of the case the trial Court would have exercised its discretion in a better way had it ordered separate trials.
34. There is no doubt that there were as many as 40 accused and 51 charges against each of the accused but in my opinion that could not have caused any embarrassment or bewilderment to the accused as the facts and allegations were simple and there were separate and specific charges for the offences and the evidence against each of the accused was separately considered. The very fact that no objection on tills ground was.raised before the commencement of the trial goes to show that no such difficulty was experienced and no miscarriage of justice was anticipated.
An examination of the charges would also show that had separate trials been undertaken the accused persons would have had to face a number of separate trials on facts and evidence which were common and so inter-connected that dealing separately With them would have been more to the prejudice of the accused than to their benefit.
35. As already mentioned two charge-sheets were filed by the Police in 1951, the second one co- vering the offences committed at the house of Bharat Lodh (P.W. 17) only. Then a common charge-sheet was filed afresh in 1953 and cognisance on its basis was taken on 24-8-53 presumably after the order for discharge of the accused in the first charge-sheet was passed the same day on the ground that the charge-sheet was hopelessly detective and the facts constituting the offences were not stated in it as required by Section 190 (a) of the Criminal Procedure Code, and therefore cognisance could not be taken. In Bharat Lodh's case prosecution was allowed to be withdrawn and the accused were discharged under Section 494 (a), Cr.PC
36. It was urged by the learned Counsel for the appellants that the discharge orders in the first two charge-sheets wore a bar to the entertainment of the third charge-sheet and the Magistrate was not competent to act on it. If the contention is correct then the whole trial in question would be vitiated being without jurisdiction: Emperor v, Pritam Singh A.I.R. 1948 Cal 128 (F) and The King v. Moule Bux A.I.R. 1949 Pat 233 (FB) (G). were cited in support.
37. It is nobody's case that the orders of discharge in the first two charge-sheets were passed after the framing of the charges. Therefore the order of discharge was the correct order and it will not be disputed that an order of discharge is no bar to a fresh prosecution. The case in A.I.R. 1948 Cal 128 (F) was a case of acquittal and can therefore have no application here. It rather supports the view that in such cases a fresh challan can be filed if necessary.
On the other hand, the Patna case is an authority of the point that an order of acquittal or discharge passed under Section 494 is a judicial order and is liable to revision by the High Court and there is nothing in that case which supports the contention of the appellants that after the discharge order the Magistrate was not competent to entertain the fresh challan. There is thus no force in this contention.
38. I have already mentioned that when M. C. Choudhury (P.W. 30) filed the challan in 1953 he was not the Officer-in-charge of the Police station at Kamalpur having been transferred from there. It is contended on behalf of the appellants that since this challan was not forwarded by the Officer-in-charge as required by Section 173 (a), Cr.PC cognisance could not be taken by the Magistrate on its basis and therefore the whole proceeding including the trial which were based on it are bad in law.
This contention was overruled by the learned Sessions Judge as under Section 190 (1) (b) a Magistrate may take cognisance of an offence upon the report in writing of tile facts made by any Police Officer, and in any case, the Sessions Judge thought that it was a mere irregularity which was curable.
39. The learned Counsel admitted the position that Section 190 (1) (b) permitted the Magistrate to take cognisance on the written report of any Police officer but; the point that he tried to make was that such a report should be always forwarded by the Officer-in-charge under Section 173 and failure to do so is fatal. That is though .there is no objection to the report being under the signature of any Police officer it must be sent by the Officer-in-charge. There is no evidence to show whether or not the report was actually sent by the Officer-in-charge and it is possible to urge that there will be a presumption that it was so sent.
But in any case, I am of the view that the omission to do so would make no difference. In H. N. Rishbud v. State of Delhi, (S) : 1955CriLJ526 , their Lordships of the Supreme Court held that a defect or illegality in investigation, however serious has no direct bearing on the competence or the procedure relating to cognisance or trial and it could not be maintained that a valid and legal Police report is the foundation of the jurisdiction of the Court to take cognisance, and cognisance taken on an invalid Police report is prohibited and is therefore a nullity, because such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1).
In any case cognisance so taken is only in the nature of error in a proceeding antecedent to the trial curable under Section 537. It is also difficult to see how there can be any prejudice if the Officer who had investigated the offence submits the challan under the signature directly and not through Officer-in-charge. This contention must therefore stand negative.
40. Another objection of the learned Counsel which is based on certain alleged mistakes or omissions regarding names, descriptions or residence o} the accused persons in the challan and on certain facts drawn out in the cross-examination of P,W. 30 is in my opinion based on a misapprehension of facts. The argument assumes as also appears to have been assumed by the learned Sessions Judge that some new accused persons who were not before the Magistrate (S, D. M., Kamalpur) who took cognisance were produced without any process from the transferee Magistrate Sri K. P. Datta and were tried by the latter.
Sri Datta is not a Magistrate empowered to take cognisance under Section 190 but it is conceded and conceded rightly as also held by the Sessions Judge that a transferee Magistrate stands in the shoes of the Magistrate from whose file the case is transferred to him and has the same powers and can therefore proceed even against those persons who are not named in the challan if it is disclosed that they are also offenders. But what is disputed is that he cannot do so without issuing process against the new accused.
The learned Sessions Judge on the assumption already mentioned above met this argument by the reasoning that the object of issuing a summons or warrant to an accused person is only to secure his presence before the Court and if his presence is secured otherwise as for example by the voluntary appearance or production in some order way then the purpose is served and the necessity for the process done away with. I have no doubt that this is a correct view.
No law has been shown which requires that a l process to compel appearance must issue even if I the accused is present in Court and the remarks in some of the rulings cited in the judgment of the learned Sessions Judge (as for example, Province of Bihar v. Bhim Bera A.I.R. 1947 Pat 284 (I) and Hemendra Nath Sen v. Emperor A.I.R. 1929 Cal 192 (J)) that the transferee Magistrate has the power to summon any further persons as accused must be interpreted as intended for normal cases in which the new accused can hardly be expected to be present in Court, and not as an authority for the proposition I that a process against him must go even when he' surrenders himself to enable the Magistrate to assume jurisdiction to try him.
41. The facts however appear to have been different. The very first order-sheet in the case started on the basis of the challan filed in 1953 goes to show that the S. D. M., after taking cognisance ordered the issue of non-bailable warrants against the accused persons. The order-sheet of the next data (29-8-53) shows that no report about the execution of the warrants had been received till then from the Thana. After that, it appears from the order-sheet dated 2-9-53 that the Police arrested and produced 55 accused persons on that date and they were ordered to be released on bail.
The subsequent order-sheets go to show that in this way the presence of 65 accused had been secured before the S. D. M, before the case was transferred to Sri K. P. Datta, Magistrate, 1st Class, Agartala, by D. M.'s order dated 22-7-55. It will be also clear from the order-sheet dated 12-5-55 that the S. D. M. commenced the enquiry with die 65 accused persons before him on that date by commencing the examination of the P.Ws. and the further indication from that order-sheet is that he was proceeding against the absconding accused under Section 512.
A few days later the bails of some of them were cancelled and they were remanded to custody. All these 65 accused which included 30 in custody appeared before Sri K. P. Datta (sec order-sheet dated 1-9-55) and as will be clear from his committal order he committed 40 out of them ,to stand their trial before the Court of Session. In the circumstances it cannot be said that Sri Datta was taking cognisance against any new accused and this takes away the very foundation of the argument advanced on behalf of the appellants, and the question of applying Section 215 or Section 532 of the Criminal Procedure Code does not arise.
42. Again it is clear that all the accused except four were shown in the. challan as absconding. It was therefore open to the Police to arrest and produce them before the Magistrate who had session of the case.
43. The objection whether the accused persons before the Magistrate were the same against whom the challan was put up is a matter which depends upon evidence and is necessarily bound up with the merits of the case and must be reserved for discussion when the evidence against each accused is examined separately.
44. Another point urged was that according to the time given by the prosecution itself the offences alleged to have been committed at Ganganagar and Mohanpur were committed on l-4-50 (Saturday) while those committed at Rupaspur and Kamalpur were committed on 2-4-50 (Sunday) as the dates change at mid-night according to the English (Gregorian) Calendar and the trial embarrassed the offences of both these dates while the F. I. R. (Ex. P-l) mentioned 1-4-50 only as the date of incident. The trial as far as offences of 2-4-50 were concerned was therefore illegal.
I do not think that this contention needs any serious consideration when the incidents of Kamalpur and the time of their taking place were both men- tioned in the F. I. R. and also the charge-sheet. It is well known that according to local usage people are accustomed to count the 24 hours making a day as commencing from sun rise and ending at sun rise the next morning and therefore the whole night is regarded as part of the previous day and it is obvious that this is the mistake that P.W. 30 made when he put down the date of occurrence at the top on the F. I. R. as 1-4-50.
In the body of the F. I. R. he has mentioned all the attacks, and though the portion which had the time of the commencement of the attack at Kamalpur is torn, we have it from the judgment of the Sessions Judge that this time was mentioned as 2 a.m. in the night, Ono therefore fails to see how the incidents at Kamalpur which correctly speaking took place on 2-4-50 can be excluded on this technical ground.
45. The F. I. R. (Ex. P-l) which was recorded by the Officer-in-charge (P.W. 29) in his own name and on the basis of his own personal knowledge |four days later was attacked as being inadmissible in evidence as it was hit by the provisions of Section 162, Cr.PC The evidence of this witness given before the Court of Session goes to show that he received Information about the attack by the Muslims for the first time at about 1 p.m. on 1-4-50. He received further information about arson and looting later the same day but he did not record any of these informations conveyed to him. In the circumstances it is clear that the report recorded by him four days later (Ex. P-l) cannot be said to be the original information and cannot fall within Section 154, Cr.PC
One of the reasons given by the learned Sessions Judge for not treating this earlier information as the first report was that those reports were vague. But an examination of the F. I. R. (Ex. P-l) would show that this report was no less vague. It only mentions that the Muslims had attacked the villages in question and investigation would reveal the damage caused and the persons who had witnessed the offences. It further says that P.W. 29 could not recognise any of the culprits.
46. But Section 154 requires his information of facts which would show that a cognisable offence has been committed so that the Police may take up investigation. It is not necessary that the offenders or the witnesses should be named or the circumstances of the commission of the crime stated. The deposition of the Officer-in-charge (P.W. 29) is that on 1-4-50 at about 1 p.m. he got information about aggression by Muslims at Ganganagar. At about 3 or 4 p.m. of the same day, he received information about loot and arson at Mohanpur and then sent a Police force to Mohanpur. He also went there after some time.
Thus the information received definitely informed him that cognisable offences were committed and were being committed. In the circumstances present it could hardly be expected that at this stage information with all details or reports by those whose houses had been attacked could be taken to the Police officer.
47) The result is that the statement recorded in Ex. P-l cannot be treated as the first information report as the information received under Section 154 was the information that the Officer-in-charge received on 1-4-50 as stated above, This information could have been supplemented by more detailed reports by those whose houses were actually attacked and looted by such reports were either not given or not taken most probably due to the inaction on the part of the Officer-in-charge (P.W. 29).
48) The next question therefore is whether Ex. P-l would fall within the purview of Section 162. In my opinion that section contemplates that the maker of the statement shall be a different person from the Police officer to whom the statement was made and it not being so in this case the statement recorded in Ex. P-l cannot be regarded as falling under Section 162. Further the investigation into the offence had not commenced when the report in Ex, P-2 was recorded, and that would also exclude the statement from the purview of that section because Section 162 requires that the statement should have been made in the[ course of an investigation.
49. It remains therefore to be seen if any use-can be made of such a report or statement. There can be no doubt that it can be used for the purpose of contradicting the person who gave that report under Section 145 of the Evidence Act in case he is examined as a witness but cannot be used for the purpose of corroborating the testimony of the giver of the report as the statement was not made to some one else which appears to be necessary from the very language of Section 157 of the Evidence Act, before the section can be attracted.
50. But as already seen the report is so general that it goes to show nothing beyond the fact that the Muslims attacked the villages and burnt and looted the houses, a fact which is not seriously disputed and which does not point to any particular accused. If therefore it was admitted for the purpose of corroboration even then no prejudice would have been caused to the accused person.
51. An attempt was also made to show that Ex. P-l was ante-dated because the signature of the Officer-in-charge who was also scribe of the report was in a different ink and because the report was not received by the Magistrate at Kailasahar till 25-4-50. The explanation given by P.W. 29 is that the difference in ink might be due to the fact that the ink in the pen most probably he means fountain pen, must have exhausted he might have used some other ink.
Such a thing is not impossible. An examination of the document shows that not only his signature but also the first part of the report and signature on tile first as also the date and time at the end of the recital are in this different ink, which goes to show that the report must have been written in two instalments and not in the same sitting. But that does not necessarily mean that it was ante-dated, rather suggests that the main report was written some time before and the parts were filled up and the report completed on the fourth.
This difference in ink rather suggests want of mala fides because otherwise I am certain that the witness would have taken good care to see that no such clue is given by the document itself. It is also in evidence that everything was dislocated for the time being and the Officers were concerned more with giving relief to the persons affected, and the Post Office was also burnt down. In view of this the fact that the report reached the Magistrate Kailasahar after 20 days cannot raise a presumption that the report must have been ante-dated. In any case nothing turns on it in view of the finding that the report is not admissible except for contradicting the Officer-in-charge himself.
52. Relying on Sm. Radharani Dasya v. Kshetra Mohan, 40 Cal WN 409 (K), learned Counsel further urged that two common objects, namely, of arson and loot could not be charged and tried in the same trial and therefore also the trial was bad.
53. In the case cited the facts wore different. It was a case of rioting in which the prosecution case was that the accused tried to take forcible possession of a piece of land which was in complainant's possession and the Court held that the proper common object to be charged was that of taking possession of the land in dispute and merely because certain persons were injured it is altogether wrong to include an alternative or additional common object of assault at the same trial, specially when there was no evidence of an independent common object of assaulting.
But that is certainly not the case here and the common objects of committing dacoity and burning the houses are quite consistent with each other and as already seen there is ample evidence to draw the inference that tile rioters had these two common objects. This contention must therefore fail.
54. The procedure followed for contradicting .the prosecution witnesses under Section 162, Cr. P, C, was most defective. As mentioned by the learned Sessions Judge himself two kinds of contradictions were attempted, one by omissions and the other by positive statements before the Police. But the attention of the witnesses was not drawn specifically to the exact statements said to have been made to the Police and recorded in the diary, nor were the statements or their copies from the case diary exhibited in the case.
Those statements were also not got incorporated in the evidence recorded by the Court. The Officer-in-charge who recorded those statements in the diary was also not asked and did not depose that these statements made by the witnesses were correctly recorded by him. The learned Government Advocate therefore objected relying on Emperor v. Ajit Kumar Ghose A.I.R. 1945 Cal 159 (L), that those statements could not be used for the purpose of contradiction. But the learned Sessions Judge relying on Bihari Mahaton v. Emperor A.I.R. 1931 Pat 152 (M), even though his attention was drawn to a later case of that Court namely, Emperor v. Najibuddin A.I.R. 1933 Pat 589 (N), held that it was permissible to make use of the omissions because the Officer-in-charge was asked by the defence counsel if a certain witness had named some persons as a culprit or not and the Officer-in-charge gave the answer to the question with reference to his diary.
The Sessions Judge Inter says that in respect of the discrepancies to which the attention of the witnesses was not drawn and they were thus denied the opportunity to give an explanation it must be held that those statements in the diary cannot be used for the purpose of contradiction. In that he is right, but it is not clear from what he says whether he means that this applies to omissions also. If not then the view taken by him is on the face of it erroneous, because Section 145 of the Evidence Act requires in express terms that if it is intended to contradict the witness by the written statement, his attention must be called to those parts of it which are to be used for the purpose of contradicting him and I am confident that it is not permissible to substitute any other method in place of the one laid down in Section 145.
What is then the position in respect of those1 omissions where the attention of witnesses was drawn-in one way or the other in the face of other objections already mentioned above?
55. I have no doubt that the procedure and law on the subject was laid down correctly in A.I.R. 1945 Cal 159 (L) and I respectfully subscribe to-those views. Any other construction on the express language of Section 162, Cr.PC and Section 145, Evidence Act, is not only not permissible but would be fraught with a risk of miscarriage of justice.
56. I therefore find that contradictions, and omissions which were not proved in the manner laid down in A.I.R. 1945 Cal 159 (L), cannot be permitted to be made use of by the defence. It might be observed that this question is now of importance in respect of appellants only and has erased to be of interest as far as those who were acquitted are concerned. These statements will therefore be examined in this light where necessary while considering the evidence.
57. Some general attack on the case as a whole was made by the learned Counsel before taking of the case of each appellant separately. He urged that the recitals in Ex. P-l did not show that local Muslims had also attacked these villages. It appears that this was based on a misreading of the document. It is stated in that document in the very beginning that Muslim holigans of Pakistan along with the Muslims of this Eleka who went away to Pakistan were the persons who came to attack.
In the end it is stated that the Officer-in-charge could not recognise any culprit. This statement when the mob according to some consisted two thousand to three thousand persons and when the Officer-in-charge saw them from some distance cannot be taken to mean that no local Muslim was in that mob.
58. It was next pointed out that some of the important witnesses mentioned in the charge-sheet were not examined and therefore an adverse inference should be drawn as pointed out in The Empress v. Dhunno Kazi, ILR 8 Cal 121 (O) and Emperor v. Mukhtar Ali A.I.R. 1944 Cal 306 (P). There can be no doubt that it is permissible to draw such an adverse inference but in the present case this will have to be examined with relation to each offence and because some important witness about one particular offence was not examined without good reasons it will not mean that the case as a whole ought to fail.
Emphasis was also laid on the delay in putting up the charge-sheet but mere delay cannot be fatal to a case, and the weight to be attached to it is always a question of fact depending on the circumstances of each case.
59-74. (His Lordship then considered the case of each accused and continued as under:)
75. Appellant Tabai Ulla is also from Ganganagar. He was convicted under Section 147 and sentenced to R. I. for 2 years. He was also convicted under Section 395 for the looting at the houses of Mahim and Jogendra (P.Ws, 1 and 2) and sentenced to R. I. for 4 years for each offence looking to his age which is .between 60 and 70 and also because he appeared to be somewhat infirm to the learned Sessions Judge.
76. It is noteworthy that this appellant's name was not shown in any of the charge-sheets. The learned Sessions Judge however convicted him relying on the evidence of Jogendra (P.W. 2) who saw him among the raiders at Ganganagar and the evidence of Mahim (P.W. 1) who saw him among the raiders who looted his house and the house of Jogendra. I .agree with the learned Sessions Judge that there is nothing why these witnesses ought not to be believed, but in the lace of the fact that he was not named in any of the charge-sheets leading to the conclusion that uptill then this appellant was not implicated, it would be, in my opinion, unsafe to convict him.
As remarked in Arulanandu, In re : AIR1952Mad267 , in a big riot by hundreds of persons, it is very easy even to mistake one person for another and implicate honestly really innocent persons and even to mistake persons seen elsewhere as having been seen in the riot. It is therefore not unlikely that when this appellant was arrested and produced before the Court these witnesses honestly believed that they had seen him in the mob. The benefit of I this doubt must therefore go to him.
77. Some effort was made by the learned Government Advocate to show that Barat Bai (No. 46) of Barikhola shown in the charge-sheet is this very man, but in the absence of evidence to show that this appellant is known by that name also, it is difficult to see how that name and address can be fastened on this appellant. I therefore set aside the convictions and sentences passed on the appellant Tabai Ulla and acquit him of all the offences for which he was convicted.
78-107. (His Lordship considered the case of other accused and concluded1 as follows:) The result of my findings as far as the appellants in this appeal are concerned is:
1) The convictions and sentences passed on appellants Abdul Rahaman Khan, Abdul Hamid Khan, Daras Master alias Daras Mea and Chandu Mea are maintained.
2. The convictions and sentences passed on appellants Tabai Ulla and Reman Ulla are set aside and they are acquitted on all the counts. They shall be set at liberty at once.
3. The convictions and sentences passed upon appellant Wahab Ulla under &. 395 for the offence at the house of Jogendra (P.W. 2) and under Sections 436/149 and 395 at the shop of Mahim (P.W. 1) are set aside and he is acquitted, for those offences. The rest of the convictions and sentences passed upon him are maintained.
4. The convictions and sentences passed upon Manik Mea under Sections 436/149 and 395 for offences at the shop of Mahim (P.W. 1) are set aside but his convictions and sentences as regards other offences are maintained.
108. The appeal is thus partially allowed as indicated above. Otherwise it fails and is dismissed.