1. This appeal is on behalf of ten persons, all of whom were convicted Under Section 147, IPC and Section 302 read with Section 149, IPC and the appellant Ram Durlav Mitra alias Durlav Sarkar was found guilty and convicted further Under Section 302, IPC and sentenced to transportation for life. The other accused appellants, besides Ram Durlav Mitra, were sentenced to three years' rigorous imprisonment Under Section 302 read with Section 149, IPC and to one year's rigorous imprisonment Under Section 147, I.P.C. eachtile sentences Deing ordered to run concurrently. The further sentences of three years' rigorous imprisonment under Section 302 read with Section 149, IPC and one year's rigorous imprisonment under Section 147, IPC imposed on appellant Ram Durlav Mitra were ordered to run concurrently with the sentence of transportation for life Under Section 302, IPC passed on him,
2. The case for the prosecution was that at Rupakhat within Kalaigaon Circle, District Darrang, several local persons combined to form a joint cooperative concern under the name and style of Krishi Samabai Samiti, While the members of the said Samiti, including several of the prosecution witnesses Joypati Deka, Tarini Nath, Ratneswar Sarma and otherswere going to erect an office building for the said Samiti, and some fifty persons had collected there, including some outsiders invited to die function, the accused persons in a body, numbering about 100 or 150, attacked them. This happened on the morning of 30-11-1952, The rioters, Just before the attack, gave a signal and began to advance towards the office structure sought to be erected by the said Samabai Samiti. Late Thogiram Barua was the Secretary of the Samabai Samiti and he requested the attackers, who came armed with deadly weapons like 'lathis', 'daos', 'axes', etc., to disperse, but they on the other hand, surrounded him and some of his associates, like Joypati Deka, Ratneswar Sarma, Tarini Kanta Nath, and others, who were standing near the flap; pole which was planted there by the members of the said Samabai Samiti.
The rioters were headed by the appellant, Ram Dmlav Mitra, and it is alleged that he came armed with an axe in his hand, and when Thogiram Barua and his party were gradually receding towards their old camp, Ram Durlav and his men followed them, and Ram Durlav was the first man to attack Thogiram Barua, whom he gave a blow on his head. Thogiram then fell down and some other members of the rioters' party belaboured him all over his body. Joypati, Tarini and some other persons who figure as prosecution witnesses, were also assaulted. Joypati proceeded to Paneri Thana after the assault and lodged an ejahar. Jewram, another member of Thogiram's party, went to Tangla to inform the Police. Thogiram who was lying in an injured condition, was subsequently brought to Tangla and then removed to Mangaldai, where he was admitted into the Civil Hospital, and at about 5 P. M. in the evening that very day he collapsed as a result of the injuries received on his head. A post-mortem examination was held over the dead body of Thogiram after being duly identified.
3. The Police, in course of investigation, arrested several persons and, out of them 21 (twenty-
one) persons were committed to the Court of Session for trial for offences Under Sections 148, 149 and 302, IPC The trial in the Court of Session ended with the acquittal of eleven persons and conviction of the ten appellants, as indicated above.
4. The accused persons pleaded not guilty to the charges framed against them, and their defence was that they were in occupation of some lands at Rupakhat Pathar, and Thogiram Barua and other members of his party, including Tarini Nath, wanted to oust them from their possession. They further alleged that Thogiram Barua, Joypati Deka, Tarini Nath and other members of the alleged Samabai Samiti had no possession over the disputed property, and the fact of constructing an office-house for the
purposes of the Samabai Samifii, as alleged, was false. There was a counter version on behalf of some of the accused persons, and it was indicated in the first information report lodged by one Upendra Das at the Paneri Police Station at 8 P. M. on t 30-H-1952 alleging that Thogiram Barua, Tarini Nath Joypati Deka and others had set fire to their houses on that very day.
5. The session trial was held with the aid of a jury, and the verdict was unanimous against the accused appellants. The Jury returned a verdict of guilty against accused Ram Durlay Mitra under three charges, namely, Under Section 302, Section 302 read with Section 149, and Section 147, IPC With regard to the other nine appellants, they returned a verdict of guilty Under Section 302 read with Section 149, and Section 147, IPC In other words, the finding roughly was that all the appellants were members of the unlawful assembly in course of which the offence of murder was committed, and Ram Durlav was considered to be directly responsible for the murder as well as constructively. Whether this dual position is correct, will be considered later.
6. The charge to the Jury was attacked on several grounds by the learned advocate for the appellants. The first contention was that the exceptions to Section 300, IPC not being properly explained to the jury, nor placed before them, the Jury had no other alternative but to return a verdict of guilty Under Section 302, IPC as they were not aware of the contents of the said exceptions. The learned advocate argued that no matter whether any defence case under the said exceptions was pleaded by the accused or not, it was the duty of the learned Judge to place all the exceptions before the jury, so that they might know the limitations or the exact circumstances of a particular case where a verdict Under Section 302, IPC would be justified. There is surely Some force in this contention, but, in our opinion, what the' learned Judge said was quite adequate to meet the circumstances of the case. It does not appear to us that the learned Judge did not, as a matter of fact, refer to any of the exceptions. All that he said was that he need not have dealt with the exceptions at length, and that is the reading that we have of the passage that was attacked. The passage runs as follows:
Unless any exception to the rule is pleaded and can be gathered from the circumstances of the case, the person will not be exonerated from the offence if there be sufficient evidence to connect the person with the offence committed. As I have said, this accused person has not pleaded in defence any of the exceptions provided under the Code. His case is mere denial and he pleads not guilty to the charge. He also denies the entire occurrence alleged to have taken place on 30-11-1952. Sections 299, 300 and 302, IPC read out and explained to the Jury.
It may further be added that the accused persons did not specifically rely on any of the exceptions mentioned in Section 300, IPC nor did they plead any such circumstance that would have helped to take their case out of tire offence of murder, as alleged, and convert the same into an offence of man-slaughter or culpable homicide not amounting to murder. There were two possibilities in the circumstances of the case one of a sudden quarrel or provocation, and the other, of a right of private defence of property. These aspects were pointed out to the Jury, and, in our opinion, the charge could not be said to be defective on that account. As to tire responsibilities the accused had in these matters, Section 105, Evidence Act, lays down the law, and, in default, the Court has to presume the absence of such circumstances. Therefore the observations made by'the learned Judge to this effect were perfectly in form.
7. The second contention was that the defence evidence was not properly placed before the Jury, to that the Jury could fairly appreciate the value of the evidence on record, which might favour the case of tire accused. We, for ourselves, have considered the material evidence on the point of possession, and we are satisfied that there was overwhelming evidence to prove that Joypati and his party were in possession of the place where they were trying to erect the house in question, and some of the accused having possession or claiming to be in possession of some neighbouring lands, made a desperate attempt to oust these persons who were going to establish themselves in a plot of land, over which there seems to be some sort of quarrel, by show of force or by use of it, if called upon. We have no reason to disbelieve the Government Survey Officers who came as witnesses, nor do we think that the Jury were misled in any sense in coming to their finding as to the question of actual possession, and as to who the trespassers were. No case seems to be made out by the accused which would justify their attacking the complainant and his party at a place where they did not apparently exercise any act of possession. The evidence as to possession was fairly and squarely placed before the Jury, and even if full reliance be given to the defence witnesses, we do not think that the accused persons succeeded in making out that they were in possession of the land where the trouble started. They seemed to act more in apprehension of future danger to their interest than to avert dispossession, as contended by the learned advocate for the appellants,
8. The third contention of the learned advocate was directed against the interpretation of Section 149, Penal Code by the learned Additional Judge, and, in our opinion, it was correct to say that Section 149, IPC had neither been correctly understood by the learned Additional Sessions Judge nor explained to the Jury, and even after hearing the learned advocate for the State we are still of opinion that the learned Judge failed to appreciate what the contents of Section 149, Indian Pedal. Code were. The learned Judge rather in a way confused Section 149, Indian Penal Code with Section 34, IPC which seems not to be an uncommon error with many of the learned Judges who fail to read correctly the section and ascertain as to what its ingredients are. Section 149, IPC requires three things primarily(1) that one should be a member of an unlawful assembly; (2) that in prosecution of the common object of that assembly, an offence should be committed by a member of that unlawful assembly; and (3) that the offence should be of such a nature that the members of that assembly knew the offence to be likely to be committed in prosecution of their common object. If these three elements are satisfied, then only a conviction Under Section 149, IPC may be substantiated, and not otherwise. Here, the obvious finding was that the accused were members of ah unlawful assemblybut what the learned Judge ought to have pointed out was; whether the offence was committed in prosecution of the common object of the unlawful assembly, and whether the other members who did not directly participate in the commission of the offence, did know, or it was likely for them to know, that such an offence would be committed in prosecution of the common object of the unlawful assembly,
9. The fourth objection taken was on the basis of the conviction, namely, that Ram Durlav could not have been convicted Under Section 302, IPC for committing the offence directly, and Under Section 302 read with Section 149, I.P.C. at the same time, for committing the offence constructively. If a man does commit an offence directly, there is no question of his committing it constructively, and vice versa. This contention is sound, and one of the convictions must, therefore, give place to the other,
In the case of 'Nanak Chand v. State of Punjab', (S) AIR 1955 SC 274 (A), it was held by the Supreme Court that a conviction under Section 302, IPC may be sound if an independent charge is framed, apart from the one Under Section 302 read with Section 149, IPC and, on that basis, there would havt- been nothing wrong in convicting the accused Ram Durlav Under Section 302, IPC But, on a consideration of the circumstances, it seems the conviction should more appropriately be Under Section 302 read with Section 149, IPC, the reason being that there were more than one serious injuries caused on the head of the deceased Thogiram Barua, and it could not be definitely said which one of these injuries was caused by accused Ram Durlav.
The further fact remains that in the first information report, it was not mentioned that Ram Durlav caused the head injury. In our opinion,, therefore, appellant Ram Durlav is entitled to the benefit that the circumstances could give him, and his conviction Under Section 302, IPC as if he directly committed the offence of murder, should be quashed, and his conviction under Section 302 read with Section 149, IPC should be retained.
10. There was another objection which relates to the investigation stage and has a substantial bearing on the question of misdirection, and that is with regard to the recording of statements by the Police Under Section 161, Clause (3), Cr.PC in what is known as 'boiled form'. It appears from the cross-examination of the investigating officer that he concedes that he did not record fully the statements of two of the prosecution witnesses Nos. 8 (Paniram Nath) and 9 (Rabiram Nath) as required under the Code, and we have been referred to the case of 'Bejoy Chand v. The State' AIR 1950 Cal 363 (B), an authority on which we relied on a previous occasion,
The weightier observations find place in the judgment where the learned C. J. Sir Trevor Harries, refers to the view of the Privy Council in the cases of _ 'Kottaya v. Emperor' AIR 1947 PC 67 (C). and 'Zohiruddin v. Emperor' AIR 1947 PC 75 (D). The learned Chief Justice summarised the views of the Privy Council in the following words:
Their Lordships, however, in both these cases, pointed out that the failure to comply with the provisions of Section 161, Criminal P. C. might tlirow very grave doubt upon the evidence of the witnesses, and it was a matter which the Court was entitled to consider when dealing with the credibility of the witnesses.
Undoubtedly, an omission to direct the Juries to this defect in the matter of recording the statements of the witnesses by the Police, is a material irregularity, which might vitiate the charge under certain circumstances and lead to the conviction being set aside. Here, there are several prosecution witnesses, besides Paniram (P.W. 8) and Rabiram
(P.W. 9), and even if these two witnesses are left out, the volume of evidence is sufficient to substantiate the charge against the accused persons.
We, therefore, do not think that the accused persons were prejudiced even though, this omission or misdirection was there.
11. There are certain minor contentions, to which we need not refer, but since, in our view, the charge was defective on the interpretation of law, the accused are entitled, either to a re-trial, or, we should try to appreciate the evidence for ourselves, and it is the latter course that we have followed. We are satisfied, from a perusal of the , that the evidence on record substantiated the case against the accused persons, and that their identification in course of the rioting was satisfactorily established, which the Jury unanimously accepted.
The weapons of offence seized by the Police from the possession of accused Manik Sarkar and from other places, sufficiently prove that the attack was premeditated, and a large number of persons took part in it with the avowed object of injuring Thogiram and his party.
12. The result, therefore, is that, except in the case of Ram Durlav Mitra alias Durlav Sarkar, the convictions and sentences in the cases of all the other accused appellants are maintained, and, in the case of appellant Ram Durlav Mitra, his conviction and sentence Under Section 302, IPC, is set aside, but since he was the leader of the attacking party, m our opinion, he should be sentenced to five years' rigorous imprisonment Under Section 302, read with Section 149, IPC and we order accordingly,
The convictions and sentences of all the accused persons Under Section 147, IPC should remain, and sentences to run concurrently with the other heavier sentences passed Under Section 302 read with Section 149, IPC
13. With the above modifications, the appeal is dismissed.
14. Ram Labhaya, J.
15. I agree.