1. This is an appeal by the Government of Bombay against the order of the Sessions Judge at Belgaum acquitting 23 persons who were tried before him and a jury on the charge of voluntarily causing grievous hurt with dangerous weapons (Section 326 of the Indian Penal Code). The Jury returned a verdict of not guilty by a majority of 3 to 2, which the learned Judge accepted. The Government appeal against the order of acquittal on the ground that there was a mis-direction in the judge's charge to the Jury.
2. The case for the prosecution is shortly as follows :-
Two brothers Shantgauda and Bhau who live at Hunari, Taluka Chikodi, were at enmity with Nemaji, accused No. 1, who died after arrest but before the trial in the Sessions Court. On the morning of the 18th of July 1905, Shantgauda and Bhau, who lived almost opposite to accused No. 1's house, were passing by the latter's on their way to relieve themselves, when the accused attacked them and inflicted injuries on both, with the result that Shantgauda has become blind completely of one eye and Bhau has become very weak.
3. The learned Sessions Judge in his charge to the jury divided the accused into two classes; one class consisting of those of the accused against whom there was oral evidence adduced by the prosecution to prove that they inflicted the injuries, the other consisting of the other accused who were present at the beating as abettors, according to the case for the prosecution, but as against whom there was no oral evidence to show that they actually assaulted either Shantgauda or Bhau. So far as the first class is concerned, there is no exception taken before us to the learned Judge's summing-up. He placed before the jury a summary of the oral evidence against them with an indication of his opinion that that evidence was more or less reliable. But it is his charge to the jury in respect of the second class that is assailed before us as being vitiated by mis-direction. The Judge said:-'' I think a distinction should be made between the 10 men who came out to attack Shantgauda and Bhau and those who were in Nemaji's house at the time. Taking it that the 23 accused, with Dada who is dead or missing, met in Nemaji's house, there is no evidence that they did so with any intention of attacking Shantgauda', Further on he told the jury:-' There is no evidence that the object of the meeting' (in Nemaji's house) 'was unlawful'. And the same observation is repeated in other words in another place in the charge. If the learned Judge meant that there was no oral evidence in the case to show that the 23 accused had all met in Nemaji's house with the premeditated purpose of attacking Shantgauda and Bhau, he was perfectly right and no exception can be taken to his charge. But the case for the prosecution was that all the accused had entered into a conspiracy to attack Shantgauda and Bhau and had with that common intention assembled in the house of Nemaji early in the morning of the 18th of July. And a conspiracy may be proved by other than oral evidence. It may be proved by the evidence of surrounding circumstances and the conduct of the accused both before and after the alleged commission of the crime. As was said by Lord Campbell C.J. in his charge to the jury in Regina v. Esdaile (1858)1 F. & F. 213'There may be a conspiracy without overt acts'; and ' it is not necessary that evidence should be given to show any formal consultation or express agreement to act unlawfully; but if you are reasonably satisfied that there was a common design to do what is charged and that the defendants were acting in concert to do it, you may infer the conspiracy'. In the present case there is evidence to show that there have been two factions in the village, to one of which the accused belong and of the other of which Shantgauda and Bhau are members and that members of each faction had been before the 18th of July preferring complaints against members of the other. There is also evidence from which it appears that on the night previous to the 18th of July accused Nos. 17, 18, 23, 19, 15, 8, 12, 13, 6, 9, 10, 11, 7 and 16 had a feast in the house of accused No. 16, though it was not a festive day; that they spent the whole night there; that at early dawn the next day they were all seen going towards Nemaji's house, except accused Nos. 23 and 16, carrying sticks. The attack on Shantgauda appears from the evidence to have followed soon after. The accused in their statements to the Court deny their presence at the house of Nemaji at the time Shantgauda and Bhau were beaten there. They all pleaded alibi but led no evidence. There was thus evidence of circumstances, which, if believed, would prove common intention on the part of all the accused to beat Shantgauda and Bhau. It is evidence of the conduct of the accused both before and at the time of the assault, showing that they must have all gone to the house of Nemaji at that unusual hour with no other object than that of acting unlawfully.
4. The learned Judge was not right, therefore, when he told the Jury repeatedly in his charge that there was no evidence before them, upon which it was open to them to come to the conclusion that all the accused had gone to Nemaji's house early in the morning on the 18th of July with the common object of beating Shantgauda and Bhau.
5. But it was urged before us by Mr. Branson in support of the learned Judge's summing-up that what he substantially told the jury was that, in his opinion, the evidence as to common intention was not such as to implicate those of the accused who were present at the assault but who did not actually beat either Shantgauda or Bhau. It is no doubt the case that the Judge referred in his charge to the evidence of the circumstances above mentioned and made his own comments on it. which the law entitled him to make. But his comments, so far as they go, are all based upon his view thrice expressed in the course of the summing-up that the circumstances in question are no evidence of a common intention on the part of the accused to act unlawfully and beat Shantgauda and Bhau. He asks the jury to dismiss as unimportant the evidence as to the meeting of 15 of the accused in the house of accused No. 16 on the night of the 17th July and as to the feast there, because (to quote his words) 'there is no evidence that an attack was meditated on Bhau and Shantgauda'. That is, there is no witness who says that he saw the accused plotting together and heard them say that they intended to attack those two persons. But that is as much as telling the jury that the evidence as to the meeting in accused's house, even, if believed, was not relevant for the purpose of drawing any inference against the accused as to their common object with reference to Shantgauda and Bhau. If that was not their object, why did all these accused go from accused No. 16's house, most of them carrying sticks, to Nemaji's house which was in another street and where Shantgauda and Bhau lived? This view of the case was not put to the jury at all. As to the presence of all the 23 accused at the unusual hour of 6 a.m. on the I8th of July, the Judge told the jury to draw no inference of the common intention charged against the accused, because, as he again put it, 'there is no evidence that they met at the house of Nemaji at that early hour with any intention of attacking Shantgauda'-whereas the very evidence he was referring to, viz, that many persons came early in the morning to Nemaji's house, most of them carrying sticks with them after having spent the night at the house of accused No. 16 under unusual circumstances, was itself evidence of their common object to attack Shantgauda. The learned judge, in fact, left no option to the jury but directed them to discard the evidence of those circum- stances as ' no evidence '-as evidence which they were not entitled to consider and appreciate.
6. We hold then that the learned Judge misdirected the jury so far as those of the accused who were charged as abettors are concerned. The question is whether that misdirection has affected the verdict of a majority of the jury as to the other accused also. We think it has. The question before the jury was which of the accused had taken part in the actual assault and which of the accused were merely abettors. The jury had to determine that question upon their own view of the evidence and in arriving at a conclusion they must have been considerably influenced in favour of all the accused by the fact that they were told over and over again by the Judge in his charge that there was no evidence of a common intention to act unlawfully against these 23 persons taken collectively, that there was in fact no evidence upon which the jury would be justified in inferring that these 23 had conspired together to attack Shantgauda and Bhau and that, therefore, the jury must assume that they had all assembled at the outset and before the assault in Nemaji's house for an innocent purpose. Under the influence of such a direction the jury must have thought that if the meeting in Nemaji's house was in the beginning for a lawful purpose and the subsequent attack was sudden and unpremeditated, it was unsafe to distinguish between one man from another from among so many persons and to say who actually assaulted Shantgauda and Bhau and who did not.
7. There being a misdirection, the next question is whether it has so affected the verdict of a majority of the jury, which the learned Sessions Judge has accepted, as to have caused a serious miscarriage of justice, calling for a reversal of the order of acquittal. The appeal must therefore be heard on the merits.
8. Feb. 26.-Pratt J.-We have now heard the appeal on the merits. The evidence of the complainants Shantgauda and Bhau and of the two eye-witnesses Malappa and Ismail makes it clear that the actual assailants were accused Nos. 5, 7, 8, 10, 11, 12, 13, 17, 18 and 20. It is urged that Malappa, if he had been present, would have raised an alarm, but the evidence shows that he did what he could, for he went to inform Shantgauda's father-in-law Babaji and finding him absent sent a telegram to the Police-station. It is also objected that Malappa and Ismail were not examined by the Police for several days after the occurrence. In the case of Malappa this is satisfactorily explained by his absence at Belgaum, for he went there and stayed near the Hospital at the request of Shantgauda's wife. Ismail says he left the village through fear and this is not improbable, for he says he was threatened by accused No. 18. Ismail is not connected with either faction and his evidence Is therefore entitled to much weight.
9. Accused Nos. 23 and 22 were seen in the house at the time of the assault on Shantgauda by Ismail. They were also seen at the time Shantgauda's body was thrown out of the house by the witness, Ex. 17 and by the women Exs. 25 to 27. Accused Nos. 15 and 19 wore also seen by these women helping the actual assailants to throw out the body. Accused Nos. 6, 16 and 23 were seen by Jambu going to the house in the morning and they were again seen leaving the house after the offences had been committed, by the witness Appanna. On each occasion they were in the company of the actual assailants. There is therefore sufficient corroboration to Shantgauda's evidence that accused Nos. 2, 3, 6, 15, 16, 19, 22 and 23 were present in Nemji's house and joined in the assault on him there. All these accused are also liable for the assualt on Bhau when he attempted to rescue Shantgauda, for that assult was in furtherance of the common design to beat Shantgauda.
10. As against accused Nos. 4, 14 and 21 there is no corroboration to Shantgauda's evidence and they are we think entitled to the acquittal.
11. In assessing the punishment we must take into consideration the fact that it was accused No. 17 who stabbed Shantgauda and that accused Nos. 2, 3, 15, 19 and 22 did not take so active a part in the assault as the other accused.
12. We reverse the acquittal of accused Nos. 2, 3, 5 to 8, 10 to 13, 15 to 20, 22 and 23 and sentence.
13. Accused-No. 17 to rigorous imprisonment for six years under Section 326 and to rigorous imprisonment for five years under Section 325-the sentences to be concurrent;
14. Accused Nos. 5, 7, 8, 10, 11, 12, 13, 16, 18 and 20 to rigorous imprisonment for five years under Section 326 and to rigorous imprisonment for three years under Section 325-the sentences to be concurrent:-
Accused Nos. 2, 3, 6, 15, 19, 22 and 23 to rigorous imprisonment for three years under Section 326 and to rigorous imprisonment for two years under Section 325-the sentences to be concurrent.
15. We confirm the acquittals of accused Nos. 4, 14 and 21,