P.K. Goswami, C.J.
1. This criminal revision is directed against the conviction Under Sections 147, 323/149 and 436/149, Indian Penal Code. There are only three petitioners in this revision, two others have not come up before this Court. They were all sentenced to one year's R. I. Under Sections 147 and 323/149, IPC. under each head and to three years' R. I. and a fine of Rs. 900/-, in default to R. I. for another six months Under Sections 436/149, IPC.
2. The prosecution case is that Abdul Khaleque Gaonbura (P.W. 2) and some others were in possession of the disputed land, and on 10-2.1962 at about 8 A.M. the accused persons along with many others, numbering about two hundred being aimed with daos and daggers etc. formed into an unlawful assembly with the common object of dispossessing Abdul Khaleque and other persons from the land, assaulted Abdul Khaleque, his mother and others and set fire to Khaleque's house and some other houses and dismantled other houses. Abdul Khaleque and eight others sustained injuries in the course of this raid. Ultimately twenty-four accused persons out of the thirty-eight charge-sheeted were committed to tike their trial before the Sessions Court and the learned Assistant Sessions Judge convicted only live of them as stated above.
3. Prosecution examined ten witnesses in. eluding the doctor (P.W. 1) and a Police Officer (P.W. 10). P.Ws. 2, 3, 5 and 7 are the injured persons. They as well as P.Ws. 4, 6, 8 and 9 gave evidence regarding the occurrence implicating the accused persona. The learned Assistant Sessions Judge accepted the version as deposed to by these witnesses and held that the charges have been established. The appeal preferred against the conviction and sentence by the accused was dismissed by the learned Sessions Judge. Hence this revision.
4. It is argued by the learned Counsel for the petitioners that the charges are illegal and defective and have prejudiced the accused persons in defending themselves. Three charges were framed against the accused persons. The first one reads as under :
That yon, on or about the 10th day of February 1962 at Lankajan Darjeesheel were members of an unlawful assembly, and in prosecution of the common object of such assembly, viz., in dispossessing Abdul Khaliq Gaonbura and others from their land and in causing hurt to them and destroying their property, committed the offence of rioting and thereby committed an offence punishable Under Section 147 of the Indian Penal Code.
The second charge is:
That you, on or about the same day of February 1962 at the same place were members of an unlawful assembly, and in prosecution of the common objoct of which, viz. in voluntarily causing hurt to Abdul Khaliq Gaonbura, Julikha Khatoon and some others, some of the members voluntarily caused hurt to themi and thereby committed an offenoe punishable Under Section 323/149 of the Penal Code
Thirdly: 'That you, on or about the same day of February, 1962 at the same place were members of an unlawful assembly, and in prosecution of the common object of which, viz., in causing mischief by fire some of the members set fire to the dwelling houses of Abdul Khaliq Gaonbura, Kari Ansar Ali, Baduruddin and Abdul Rahman and thereby oommitted an offence punishable Under Section 436/149 of the Penal Code.
It is contended by the learned Counsel that the charge Under Section 147is bad because of mentioning three common objects therein. Secondly he contended that the two other additional charges contained common objects different from those mentioned in the first charge and as such the accused were handicapped in meeting the charges levelled against them. He therefore submitted that the entire trial is vitiated by framing of the charges in the manner done by the Court.
5. The offence of rioting is committed when force or violence is used by a member of an unlawful assembly in prosecution of the com. mon object of such assembly and Under Section 141 an assembly of five or more persons becomes unlawful if the common object'of the said assembly is one of the five common objects mentioned in that section. The argument is that the five alternative objects which are mentioned in Section 141 cannot be combined in a charge. The common object must be one which must be found out and brought home to the accused persons. In order to appreciate this submission in the context of the present case, it is necessary to bear in mind the prosecution case. The case against the accused is that these persons along with many others formed into an unlawful assembly in the prosecution of the principal common object, viz,, in dispossessing at least Abdul Khalique from his land and in doing so assaulted him and others and set fire to their houses. Although there are two separate charges Under Sections 323/149 and 436/149 reading the two charges together, it is clear that the. acoused had notice that they were charged of being members of an unlawful assembly which became an unlawful assembly when they along with others went into Khalique'a land and dispossessed him by assaulting him and others and by setting fire to his house and other houses. The assault and setting fire to the house although described as two different common objects in the second and third charges are really ancillary common objects in the course of a dominant common object of the entire crowd to throw out Abdul Khalique and others from the land which the accused persons with others wanted to convert into a village grazing ground for their cattle. In view of the evidence adduced in the case and the manner in which the witnesses have been cross-examined, it is not possible to hold that the accused had been prejudiced by framing of three separate charges in the manner done in this case.
6. The learned Counsel relied upon a decision of the Calcutta High Court in A.I.R. 1938 Cal. 429, Alkasulla v. Emperor which was a jury trial case and the question arose whether there was any misdirection of the Judge in directing the jury as to whether if they failed to find regarding possession of the com. plainant, they could still consider the evidence whether prosecution was able to establish the alternative common object of assaulting the complainant's party. The High Court held that there was no justification for this direction. The following passage from that judgment makes the point:
What the learned judge ought to have done was to have struck this out of the charge altogether and never put it before the jury at all. It is perfectly idle for the prosecution to pretend that there was any common object other than that of taking possession of the disputed land and there was no evidence at all to support this alternative theory.
The next cage which is relied upon is : AIR1963Cal3 , Basan Bhowmick v. State, which, more or less, follows the above decision of the same Court, and the following passage is apposite :
We....hold that in view of the fact that the primary common object as mentioned in the charge, namely, breaking down the compound wall erected by the complainant has failed, it would not be proper to maintain a conviction on that charge of rioting, by observing that in any case, the common object of assaulting the complainant and his men was established.
It is sufficient to State that the question of possession was the most important point in that case which would have turned on a plea of self-defence of property. The present is not a ease of the above description. Here the Court below has clearly found that the possession was with Abdul Khalique and in view of that finding, the above decisions cannot come to the aid of the learned Counsel.
7. Under Section 149 in prosecution of the common object means that the offence committed must have a nexus with the common object and by committing the offence and various other illegal acts, the common object of the unlawful assembly is accomplished or attained. No offence executes the common object unless the commission of that offence is a manifestation of the common object. As already set out, the three charges read together clearly show that the dominant or principal common object is dispossession of the complainant's patty and in doing so the acts committed are assault and arson in prosecution of the main common object. It is true that two additional charges were also framed with separate common objects but these being ancillary to the main common object, the accused, having notice of all the charges as framed, cannot be held to be prejudiced in their defence. It is not a case where the common objects are so different that one can be said not to arise out of the other.
8. The next point which is urged by the learned Counsel is that the learned Sessions Judge erred in law in not taking into account the evidence of the prosecution witnesses recorded in the committing court on the ground that the same were not duly tendered Under Section 288, Criminal P.C. It appears that certain statements recorded in the committing court were actually put in the course of cross, examination of come of the prosecution witnesses. It also appears that the learned Sessions Judge did not think that these could be looked into on account of the fact that there was no order of the trial court Under Section 288, Criminal P.C. Even so, the learned Sessions Judge looked into those contradictions and did not feel that the evidence of the prosecution witnesses could be held to be unreliable because of those. In this view of the matter, the question would perhaps be academic, but as the point has been urged at some length, it is necessary to deal with the same.
9. Section 288, Criminal P.C. provides that the evidence of a witness duly recorded in the presence of the accused in the course of a committal enquiry may in the discretion of the presiding judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act. Section 288 thus leaves discretion to the presiding judge to treat the earlier 'evidence as evidence in the case before him provided the conditions therein are fulfilled, viz., that the witness is produced and examined and the earlier evidence had been duly recorded in the presence of the accused, The evidence which is used Under Section 288 ia again subject to all the provisions of the Evidence Act including Section 145. A witness can be cross-examined with reference to his earlier statements Under Section 145 of the Evidence Act. This is with a view to impeach his credit Under Section 155 of the Evidence Act. The cross-examination is directed in order to destroy the evidence in Court by a reference to his earlier contradictory statements. In other words, in view of the earlier statement, the present statement is sought to be made unreliable. This result is achieved by merely cross-examining the witnesses with reference to the earlier state-meats. If, however, the witness is sought to be contradicted, then his attention has to be drawn Under Section 145 to his earlier statement. Then again if the earlier statement is sought to be relied upon as evidence before the presiding judge, recourse to Section 288, Criminal P.C. had to be taken.
It is only when the presiding judge orders for use of the earlier statement before him Under Section 238, Criminal P.C. that the earlier statement becomes substantive evidence in the case. When such evidence is sought to be relied upon as substantive evidence it is necessary that a formal order is made or at least there must be a note on the top of the deposition which is usually done stating that the evidence has been tendered Under Section 28 Criminal P. G. Although this should be the general practice and should be followed by Sessions Judges when a formal note is not made inadvertently or through oversight and in fact the presiding judge has relied upon such evidence, the defect in omitting to record a formal order may be only technical and not one of substance. For the omission alone, the evidence, if otherwise admissible, cannot be brushed aside. It is, however, to be borne in mind that when prosecution wants to utilize an earlier statement, an appellate court may not, in absence of a formal order, take into account such evidence Under Section 288, Criminal P.C. against an accused if that course would be prejudicial to the. accused. The appellate Court also in a given case can admit an earlier statement Under Section 288, Criminal P.C. provided the conditions laid down under that Section are fulfilled and the witness has been confronted with the earlier statement. The question of prejudice to the accused has, how-ever, to be always borne in mind while exercising such discretion in appeal.
10. In this particular case, as already stated, it ia the accused who seeks to avail of the contradictions which had been already put to the prosecution witnesses during cross-examination before the trial Court. The absence of a formal order Under Section 288, Criminal P.C. is therefore not of moment in this ease as there is no question of any prejudice since the learned Judge, after considering those statements, found — and in our opinion rightly — that there was no material contradictions in the evidence given by the witnesses concerned. The objection on the score of 8. 288, Criminal P.C. also therefore is of no avail to the learned Counsel.
11. The petition therefore fails and is dismissed.
12. I agree.