G.K. Misra, J.
1. Prosecution case Is that on 22nd of March, 1964 there was communal disturbance at Rajgangpur in the district of Sundargarh. The S. D. O., Sundargarh (P. W. 21) promulgated an order under Section 144 Cr. P. C. and imposed curfew prohibiting the inhabitants of Rajgangpur from holding any meeting or from coming out of their houses. In defiance of the order, a mob of about 3000 persons armed with deadly weapons started proceeding towards the Musalman Pada of Rajgangpur giving slogans that they would assault and kill the Muslims. P. W. 21,the local police and Orissa Military Police stationed themselves at a paddy field in between the Musalman Pada and the advancing mob. An order was proclaimed by the S. D. O. directing the mob to disperse. The mob took a defiant attitude and continued to advance. The S. D. O. accordingly ordered opening of fire. After the fire was opened, the mob dispersed and the rioters started running away in different directions. Police chased the rioters and apprehended large number of persons including Karam Singh (petitioner in Crl. Rev. 158/66) and Mahabir (petitioner in Crl. Rev. 174/66). Todiram (petitioner in Crl. Rev. 183/66) had a gun and was in the front of the mob. He fired two shots towards the police party. One of these spent up cartridges fired from the gun of Todiram was recovered from the place of occurrence. Karam Singh and Mahabir were arrested by the military police while they were running away. Todiram ran away and would not be arrested at the spot but was subsequently arrested. Prosecution case regarding the offence under Section 332/149 I. P. C. is that while the mob was running away after the firing some of the members of the mob caused hurt to the constables (P. Ws. 24 and 25). The defence of the three petitioners was that they were not members of the unlawful assembly.
The learned Courts below convicted Todiram under Section 27 of the Arms Act and sentenced him to undergo R. I. for two years. Karam Singh and Mahabir were convicted under Section 148 I. P. C. and under Section 332/149 I. P. C. Each of them was sentenced to undergo R. I. for one year under Section 148 I. P. C. and no separate sentence was imposed under Section 332/149 I. P. C. The three petitioners along with 42 others were jointly tried by the learned Assistant 'Sessions Judge. The cases of the three petitioners would be separately dealt with.
2. Criminal Revision No. 158 of 1966: Karam Singh is admittedly a resident of Balangir and had gone to Rajgangpur on private business. His plea was that he was arrested by the Orissa Military Police on suspicion while he was returning from Gurudwar where he had gone as it was a Sunday. He was detained by the police some time before the firing took place and after the firing he was brought to the spot from where he was taken to the Thana. Both the courts below have rejected the defence plea, that the petitioner was arrested before the police firing. After having heard Mr. Mohanty at length I am satisfied that the conclusion of the courts below is correct. It is unnecessary to re-examine the evidence on this point which has been carefully sifted.
3. It is the common case of the parties that none of the prosecution witnesses has seen Karam Singh as a member of the mob. P. W. 29 deposed that accused Karam Singh held either a lathi or a spear. The witness is not sure about the weapon which Karam Singh held. There is no other corroborating evidence on the point. The weapon has also not been seized. I do not accordingly place reliance on this part of the prosecution case that Karam Singh carried any weapon. The only evidence against the petitioner is that he was arrested at a distance of about 30 feet where dead bodies were lying while he was running away after the firing. The conviction of the petitioner has been based entirely on circumstantial evidence. a conviction on circumstantial evidence is well founded provided the chain is complete. There should be no missing link so as to create a reasonable doubt against the charge being brought home to the accused,
4. Mr. Mohapatra for the State contends that though ordinarily the arrest of the petitioner while he was running away after the police firing may not by itself be conclusive that he was a member of the mob, the circumstances under which the mob collected and the petitioner was found running away at a place in close proximity of the mob immediately after firing leads to the irresistible conclusion that he was a member of the mob knowing fully well the common object of the unlawful assembly which was to commit mischief by setting fire to the houses of Muslims and causing hurt to them. The circumstances stressed in this regard are that the atmosphere was surcharged with communal hatred, the S. D. O. had promulgated orders under Section 144 Cr. P. C., curfew had been imposed and that the members of the mob were shouting slogans for killing the Muslims and for setting fire to their houses.
5. Though the contention so advanced cannot be said to be without force, I am not satisfied that the charge against the petitioner has been established beyond reasonable doubt. It is to be remembered that the mob was not static but was gradually swelling. About 400 persons assembled at the spot and other people were gradually coming towards it. The order of the S. D. O. asking the mob to disperse was not promulgated through loud speakers. As there is no evidence that the petitioner was a member of the mob and of the exact place where he was, it is difficult to say that he heard the order of the S. D. O. or the slogans of the mob. The mob which was originally 400 gradually swelled up to 3000. At what particular point of time the petitioner came near the mob is difficult to say. It would be laying down a dangerous proposition that the entire 3000 people were members of the unlawful assembly and all are liable to be convicted under Section 148 I. P. C. The mere fact that the petitioner was arrested soon after the firing and in close proximity of the mob is by itself not a safe guide for the conclusion that he was a member of the mob. The circumstance that the petitioner ran away after the firing is innocuous. When a firing takes place even innocent by-standers run away in fear of their lives.
6. Doubtless the petitioner's plea that he was arrested before the firing is a false one. But the falsity of the defence plea would not establish the prosecution case unless it is otherwise proved beyond reasonable doubt. Petitioner is entitled to an acquittal under Section 148, I. P. C.
7. Mr. Mohapatra concedes that the conviction under Section 332/149 I. P. C. cannot be supported. Doubtless P. Ws. 24 and 25 were injured by some of the rioters while the constables were chasing them, but there is absolutely no prosecution evidence that either petitioner caused the hurt or that he shared the common object of the rioters who caused the hurt. The concession is well founded. The petitioner is thus entitled to an acquittal under Section 332/149 I. P. C.
8. In the result, the order of conviction and sentence passed by the learned courts below against petitioner Karam Singh is set aside and the criminal revision is allowed. He be set at liberty forthwith.
9. Criminal Revision No. 174 of 1966: Mr. Mohapatra concedes that the evidence against Mahabir is much weaker than the evidence against Karam Singh. The evidence against both is almost similar. For reasons given in the case of Karam Singh, the order of conviction and sentence passed against Mahabir is set aside and the criminal revision is allowed. He be set at liberty forthwith.
10. Criminal Revision No. 183 of 1966: Prosecution case is that Todiram fired two shots from his gun as a member of the mob. His defence is that he was not a member of the mob. He was present in the shed inside the factory premises where he served as a Mahut (elephant's man) employed by the Orissa Cement Limited. The empty cartridges shot from his gun are generally collected by children and the spent-up cartridges recovered from the spot might be of those cartridges. The trial Court did not accept the prosecution story regarding the presence of the petitioner in the mob. It, however, accepted the opinion of the Ballistic Expert (P. W. 18) that the spent-up cartridges recovered from the spot had been fired from the gun of the petitioner by some member of the unlawful assembly, and accordingly convicted the petitioners under Section 27 of the Arms Act, 1959, In course of discussion the trial Court disbelieved the identification by the S. D. O. (P. W. 21) that the petitioner was a member of the mob. The appellate court, however, accepted the evidence of P. W. 19 (not noticed by the trial court) and of P. W. 21 and held that the petitioner was a member of the mob and fired two shots at the police party at the time of occurrence.
11. Mr. Das assailed the findings of the courts below that the petitioner fired two shots towards the police party as a member of the mob. He also contended that spent-up cartridges recovered from the spot were not shot from petitioner's gun and the evidence of the Ballistic Expert was not acceptable. I do not find much force in the criticisms of Mr. Das, P. Ws. 19 and 21 clearly connect the petitioner with the firing of the gun as a member of the mob. Doubtless the occurrence was on 22-3-64 and the gun was seized on 31-3-64. The Ballistic Expert opined that the two spent-up cartridges, recovered from the spot, were shot from the petitioner's gun. The Expert was cross-examined at length, but nothing substantial was elicited with reference to literature on the subject of arms to discredit his testimony. The factual aspect of his argument must, therefore, be rejected.
12. It is necessary to examine another contention, not raised by Mr. Das, which directly arises in this case. The petitioner was charged under Section 148, I. P. C. as a member of the unlawful assembly and was separately charged under Section 27 of the Arms Act as having used the gun himself for firing two shots. He was acquitted by the trial Court of the offence under Section 148, I. P. C. on the clear finding that he was not a member of the mob. No appeal was filed against the order of acquittal. The finding is, therefore, conclusive. Under Section 27 of the Arms Act, the petitioner was not charged with intent to enable another person to use his gun for any unlawful purpose, but was charged for having used it himself. If the petitioner is convicted under Section 27 of the Arms Act, on the charge as framed, an express finding is necessary that he was a member of the mob. Thus there would be two inconsistent findings. For the purpose of Section 148, I. P. C. the petitioner has been found not to be a member of the mob. Under Section 27 of the Arms Act, he is held to be a member of the very mob and to have used the gun. The question posed is whether the petitioner could be convicted under Section 27 of the Arms Act after he was acquitted of the charge under Section 148, I. P. C. The case was adjourned from time to time to give full opportunity to the learned advocates to present this aspect of the matter. Mr. Srikant Mohanty, who does not appear for the petitioner, was good enough to make a thorough preparation and to present the correct legal position.
13. It is necessary to clarify the law to avoid confusion of thought. In this connexion, two distinct matters are to be kept in view. If in a previous trial a competent court records a finding accepting the innocence or guilt of the accused in respect of an offence and the very question comes up again as an issue in a second trial of the accused for a different offence, the court must proceed with the subsequent case accepting the previous finding of innocence or guilt as final and cannot allow evidence to dispute it. Such a case is directly covered by the rule laid down in Pritam Singh v. State of Punjab. AIR 1956 SC 415 which was followed in Manipur Administration v. Bira Singh, AIR 1965 SC 87. The juristic theory behind this rule was lucidly exposed by Lord MacDermott in Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458. His Lordship observed thus:
The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. 'To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication'. The underlined (here into ' ') sentence embodies the quintessence of the dictum.
In AIR 1956 SC 415, the facts were almost identical with those of the present case. There the accused was prosecuted for murder. Prosecution case was that the accused had shot a person dead with an unlicensed revolver in his possession and subsequently recovered from him by the police. Before the trial for murder and immediately after recovery of the weapon, in question, the accused had been separately tried and acquitted of offence under Section 19(1) of the Arms Act. Their Lordships of the Supreme Court held that the acquittal fully established the innocence of the accused on the question of possession and it was binding on all subsequent proceedings between the accused and the prosecution and hence it was not open to the court to canvass in a trial for murder the correctness of that finding and come to a different conclusion.
14. The position is, however, different if the object of the evidence given at the second trial is merely to corroborate the charge in respect of the offence which is the subject-matter of that trial; and there is no question of disputing any previous finding in favour of the accused. The fact that the same evidence was disbelieved at the previous trial for a different offence cannot bar such evidence. These types of cases come within the ambit of Malak Khan v. Emperor. AIR 1946 PC 16 which was followed in Sekender Sheikh V. State of West Bengal, (1964) 1 SCR 852=(1964 (1) Cri LJ 733).
The facts of the Privy Council case may be noticed. There was a trial for murder and robbery. The accused was convicted of murder but acquitted of robbery. An appeal was preferred against the conviction of murder. Their Lordships held that the evidence which had been disbelieved by the trial Court on the charge of robbery, could be accepted as corroborative evidence of the charge of murder. Sekender Sheikh's case on which reliance was placed by Mr. Mohapatra comes in the same category. The accused was charged under Sections 467 and 109 I. P. C. and under Section 82(c) of the Registration Act. The Sessions Judge acquitted the accused of the charge under Section 82(c) of the Registration Act. In the trial for the offences under the Indian Penal Code, the Jury gave a verdict of guilty and the Sessions Judge made a reference under Section 307, Cr. P. C. The High Court convicted the accused under Sections 467 and 109, I. P. C. It was contended that as the offences under Sections 467 I. P. C. and 82(c). Registration Act formed part of the same transaction and the prosecution case for the former offence was substantially founded on the same evidence, which was not accepted by the trial court when acquitting the accused of the latter offence, the High Court could not act upon that evidence to record an order of conviction on the charge for the offence of forging a valuable security.
The Supreme Court negatived this contention. Forging a valuable security and presenting of that valuable security for registration are two distinct offences. The conviction under Section 467, I. P. C. and abetment thereof upon evidence which corroborated the story of the prosecution in support of both could not be excluded merely because that finding was not accepted by the Sessions Court in considering the charge against them for false personation for procuring registration.
15. The question for consideration is in what class the present case falls. In order to appreciate this contention, it is necessary to extract the charges under Sections 148, I. P. C. and 27 of the Arms Act.
Charge under Section 148, I. P. C.
That you Todiram Mahawat on or about the 22nd day of March, 1964 at Raigangpur at 2.30 p.m. were member of an unlawful assembly and did in prosecution of the common object of such assembly viz., in committing mischief by setting fire to the houses of Muslims, causing them hurt, commit the offence of rioting and at that time were armed with deadly weapons to wit spears, swords, lathies, bows, arrows and gun and thereby committed the offence punishable under Section 148, I. P. C. The positive case of the prosecution is that only one gun was used by the members of the unlawful assembly, Charge under Section 27 of the Arms Act:
That you Todiram Mahawat on or about the 22-3-1964 at 2.30 p.m. at Rajgangpur used a D. B. B. L. 12 bore gun for unlawful purpose to wit, in firing the shots out of the same at the Magistrate and O. M. P. Force who were on duty viz, dispersing an unlawful assembly and thereby committed an offence punishable under Section 27, Arms Act.
16. Section 27 of the Arms Act runs thus:
Whoever has in his possession any arms or ammunition with intent to use the same for any unlawful purpose or to enable any other person to use the same for any unlawful purpose shall, whether such unlawful purpose has been carried into effect, or not, be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
It is to be noted that Section 27 is in two parts -- first part speaks of using the arms himself while the second part relates to enabling some other person using the arms. In this case, the charge under Section 27 confined itself to the first part There is no charge under the second part.
17. The charge under the first part, in the context of the facts of this case, means that the petitioner was present in the mob and used the gun for firing two shots. He was acquitted of the charge under Section 148, I. P. C. on the finding that he was not a member of the mob. That finding is final and conclusive and cannot be reopened, on the authority of AIR 1956 SC 415, for the conviction under Section 27 of the Arms Act. The finding that the petitioner was not present in the mob postulates a further conclusion that he could not have used the gun as a member of the unlawful assembly. The result may be unfortunate; but in law the petitioner cannot be convicted under the first part of Section 27 of the Arms Act. The petitioner had been wrongly acquitted of the charge under Section 148, I. P. C. In the absence of an appeal against the the order of acquittal, that wrong finding cannot be set aside and is to be taken as conclusive. The petitioner, therefore, is entitled to acquittal.
18. In the result, the order of conviction and sentence passed against the petitioner is set aside and the criminal revision is allowed. He be set at liberty forthwith.
19. To sum up, all the criminal revisions are allowed.