Kumara Pillai, J.
1. This appeal arises out of Sessions Case No. 10' of 1951 on the file of the Quilon Sessions Court. On 31-12-1949 (corresponding to 16-5-1125 M.E.) at about 11 p.m. an organised body of persons attacked the Inspector of Police, Adoor, and a party of police constables who were camping with, him at Sooranad in Kunnathoor Taluk, while they were on patrol duty, and murdered the Inspector and three police constables and also caused hurt to-some of the other police constables in the party. For this incident a charge-sheet, Ex. BS, was laid on 30-6-1950 by the Inspector of Police, Adoor, before the Kunnathoor Taluk, Second Class Magistrate, against 26 persons for ofiences punishable Under Sections 140, 141, 396, 301, 324, 332, 428, HOB and 112, T. P. C. corresponding to sections 148, 149 396, 302, 324, 332, 427, 120B and 121, IPC
The charge Under Section 141, T. P. C. related to the liability of every member of the unlawful assembly for the offences committed in prosecution of the common object. The other offences for which the accused were charged were rioting armed with deadly weapons, dacoity with murder, murder, voluntarily causing hurt by dangerous, weapons, voluntarily causing hurt to deter public servant from his duty, committing mischief, criminal conspiracy, and waging war against the Raj Pramukh. When the charge-sheet was filed i Court, accused No. 18 therein was already dead, and the police were not able to apprehend and produce accused Nos. 3, 4, 11, 13, ID, 20, 23, 24 and 26 in the charge-sheet as they had absconded. So, the preliminary enquiry was proceeded with only in respect of accused 1, 2, 5, 6, 7, 8, 9, 10, 12, 14, 15, 16, 17, 21, 22 and 25 in the charge-sheet.
Even out of these accused, accused 6 and 14 dieit during the course of the preliminary inquiry. After it was charged, the case was transferred from the Taluk Second Class Magistrate's Court, Adoor, to the Court of the Special First Class Magistrate, Quilon, and the preliminary enquiry was conducted by the Special Magistrate. After the conclusion of the preliminary enquiry, the learned Magistrate committed all the accused in respect of whom the preliminary enquiry was conducted to take their trial in the Sessions Court of Quilon, but the 1st accused in the charge-sheet also died after the commitment. The remaining .13 persons, i.e., accused 2, 5, 7, 8, 9, 10, 12, 15, 16, 17, 21, 22 and 25 were arraigned as accused 1 to 13 in the Sessions Court. These accused will hereafter be referred to in this judgment with reference to their position on the array of the accused in the Sessions Court as accused 1 2, 3, 4, etc.
The other accused mentioned in the charge-sheet, but not committed to the Sessions Court, have been referred to by the Sessions Judge as Ch. 1, Ch. 3, Ch. 4, Ch. 11, Ch. 13, etc. -these being their numbers on the array of the accused as given in the charge-sheet, Ex. BS, and they will be referred to accordingly in this judgment also. Even out of the 13 accused committed to the Sessions Court, the 8th accused was not able to to take his trial as he was suffering from pulmonary tuberculosis and had to be taken to the T. B. Hospital, Nagercoil, for treatment. Of the remaining 12 accused tried by the Sessions Judge, two, viz., accused 11 and 12 were acquitted and ten, viz., accused 1, 2, 3, 4, 5, 6, 7, 9, 10 and 13 were convicted under various sections.
The 10th accused was convicted only Under Section 135 T. P. C. and sentenced to undergo simple imprisonment for three months. He has undergone his sentence; and no appeal has been filed against liis conviction and sentence. All the remaining accused, viz.. accused 1, 2, 3, 4, 5, 6, 7, 9 and 13 were convicted Under Section 112. T. P. C. for waging war against the Raj Pramukh and every one of them was sentenced to undergo rigorous imprisonment for life and also to forfeit his property for this conviction. The 13th accused was further convicted Under Section 139 and Section 141, T. P. C. read with Es. 301, 307, 324, 326 and 332. T P. C. and sentenced to undergo rigorous imprisonment for life for that conviction also.
In addition to their conviction Under Section 112, T. P. C. accused 1, 2, 3, 4, 5, 6, 7 and 9 were also convicted Under Section 140 and Section 141, T. P. C. read with Sections 301, 307. 324, 326 and 332, T. P. C. and for that conviction also each of them was sentenced to undergo rigorous imprisonment for life. For causing death to the Inspector and a police constable known as Kunjupilla Assari, the first accused was further convicted on two counts under Section 301. IPC and sentenced on each of those counts to undergo rigorous imprisonment for life. For attempting to cause the death of the Inspector and attempting to cause the death of another police constable. Vasudevan Pillai. the 2nd accused was convicted on two counts Under Section 307 TPC & sentenced to undergo rigorous imprisonment for flvo years on each count. The 3rd accused was convicted on two counts Under Section 307, T. P. C. for attempting to cause the death of Police Consta- bles Vasudevan Pillai and Daniel, and on each of these counts he also was sentenced to undergo rigorous imprisonment for five years.
The 4th accused was convicted Under Section 307 T. P. C, for attempting to cause the death of police constable Kunjupilla Asari and sentenced to undergo rigorous imprisonment for five years for that conviction. For attempting to cause the deaths of the Inspector and Police Constable, Vasudevan Pillai and Daniel the 5th accused was convicted on three counts Under Section 307, T. P. C. and sentenced on each, of those counts to undergo rigorous Imprisonment for five years.
The 6th accused was convicted on two counts Under Section 307, T. P. C. for attempting to cause the death of Police Constables Vasudevan Pillai and Daniel and convicted to undergo rigorous imprisonment for five years on each of the said counts. For causing hurt to PW. 20, another police constable, to deter him from his duty the 7th accused was convicted Under Section 332, T. P. C. and sentenced to undergo rigorous imprisonment for one year. The 9th accused also was convicted Under Section 307 T. P. C. for attempting to cause the Inspector's death and sentenced to undergo rigorous imprisonment for five years. The sentences passed on each accused were directed to run concurrently. This appeal is against the convictions and sentences passed upon accused 1, 2, 3, 4, 5, 6, 7, 9, and 13.
2. The prosecution case is as follows:
(a) About the beginning of Chingom 1125 M. E., i. e., about the middle of August 1949, an organisation known as the 'Janadhipathya Uvajana Sangham.' was formed at Sooranad with the object of putting an end to capitalism and private ownership of property and subverting the present order of society by force and violence. Accused 4 and 13 and Ch. 23 and 24 were the leaders of this organisation. They planned to achieve their object by bringing about a revolution supplanting the established Government by force and violence and replacing it by a Communist administration. With these objects in view they held meetings and study classes preaching their doctrine to the people arid educating the members of the organisation.
On 10-10-1949, the Tahsildar of Kunnathoor Taluk, PW. 18, happened to auction, during the course of his official duties, the fishing rights for one year in a poramboke pond, known as the Ullannoor Tank, belonging to Government. PW. 23 obtained the right at the auction, bidding it for Rs. 8-9-0. At the next meeting of the Janadhipathya Uvajana Sangham which was held in the 3rd accused's house on 25-12-1949, the Sangham decided to resist PW. 23 by force if he came to fish in the tank.
This decision was taken at the instance of accused 4 and 13 and Ch. 28 who said at the meeting that Government had no right to auction the fishing right in the pond and that, if PW. 23 was resisted he would fetch the police for his help, that they should then attack the police, cutting and stabbing the constables, and that, if they succeeded in attacking and overcoming the police, they would succeed in their further object of overthrowing the Government and replacing it by a communist administration. All the accused in Ex. BS charge-sheet, including the appellants before this Court, were present at the meeting on 25-12-1949, and they entered into a criminal conspiracy at that meeting to attack the police and wage war against the Raj Pramukh and overthrow the established Government.
(b) A few days after the auction PW. 23 assigned the fishing rights to PW. 28, and when PW. 28 and one of his companions went to fish in the Ullannoor Tank in the night on 29-12-1949 (14-5-1125 M. E.) accused 1, 2 and 3 and a few other persons, all of whom were armed with choppers and sticks, prevented them from fishing in the tank. The accuseds' party told them that Government had no right to auction the fishing rights, that they would not therefore allow them to fish in the tank, and that if the police or the Military came to their assistance they would fight them also. On meeting with this resistance P.W. 28 reported the incident to PW. 23 and demanded back the money he had paid for obtaining the assignment. Thereupon PW. 23 himself went to the tank with PW. 28 on the next morning and he too met with a similar resistance from accused 1, 2 and 3, Ch. 1, 4 and 6 and other persons.
P.W. 23 then went to Addor and filed Ex. AM petition before the Tahsildar-Maglstrate, P.W. 18, on 31-12-1949 complaining about the resistance offered to him and P.W. 28. P.W. 18 forwarded the complaint to the Inspector of Police, Adoor, for necessary action and report, and on receipt of it, at about 2 P, M. on the same day, the Inspector, Mr. P. J. Mathew, went to Sooranad with a party of police constables. The Police Constables he took with him were PWs. 7, 19, 20, 21 and 22 and the deceased Vasudevan Pillai, Daniel and Kunjupilla Asari. PWs. 23 and 48 also accompanied the police party.
The entire party went in two motor cars, one of which was driven by P.W. 6 and the other by one Unnunni. On reaching Sooranad the Inspector halted at Thennila house and sent P. Ws. 19, 29, 21 and Kunjupilla Asari to enquire about the counter-petitioners mentioned in Ex. AM complaint and bring them to him. P.W. 23 also went with them. Their enquiries proved fruitless, but while they were returning to Thenniia house at about 6-30 P. M. they saw accused 3 and Ch. 6 mocking them from a distance flourishing a chopper and an axe. The Inspector therefore decided to stay at Sooranad for the night and complete his enquiries on the next day. Retaining Unnunni's car for his use at Sooranad he sent back P.W. 6's car to Adoor at about 8 or 8-30 P. M. On its way back, a large party of armed men attacked P.W. 6's car near a place called 'Poikayil Althara' and threw stories at it, and on hearing about it the Inspector took a patrol party to the place.
(c) At about 10 P. M. the police party went to FoikayU Althara in two batches, one headed by the Inspector himself and the other by P.W. 7, a Head Constable. In the Inspector's party went the deceased Daniel, Kunjupilla Asari and PWs. 19, 29 and 21. PWs. 23, 52 and 36 also, went with this party. In the second batch were PWs. 7 and 22 and Vasudevan Pillai. P.W. 43 also went with this party. While the police parties were proceeding east-wards along the road to the Poikayil Althara the miscreants who had stoned P.W. 6's car, among whom were all the accused charged in this case came west-wards from there. The house of P.W. 46, shown as point L in Ex. BZ sketch, is on the southern side of the road from Thennila house to Poikayil Althara, and to the west of his house there is a lane leading south-wards into a paddy field known as 'Kizhakada Vayal'.
On hearing this lane the 13th accused asked the 10th accused to go and find out whether the Inspector was staying at Thennila house and where the remaining car was parked, and then the main body of the miscreants went south-wards into the paddy field. P.W. 25 lives on the northern side of the road, some distance to the west of the house of P.W. 46. When the police party came near the house of P.W. 25 they learnt from him that the main body of the miscreants had gone to Kizhakada Vayal. The Inspector also, therefore, went with his party to Kizhakada Vayal, and P.W. 7 and his party also followed the Inspector's party. There is also another lane leading southwards from the southern side of the Kizhakada Vayal.
(d) The police party met no one until they entered and proceeded some distance along the second lane. Then all of a sudden a whistle was heard followed by cries of (stab, hack and kill) (original in Malayalam omitted) and a large body of persons armed with choppers, knives, stones and sticks fell upon and attacked the police constables. All the accused charged in this case were among the assailants who thus sprang upon and attacked police. The 1st accused who was in the front rank of the assailants, straightway stabbed the police Inspector on the abdomen with a penknife and inflicted a fatal injury causing Iris entrails to fall out. The police party had brought a rifle with them, and police Constable, Daniel, was carrying it. When the accused stabbed him, realising the extreme peril in which the party was placed the police inspector called out to Daniel to shoot at the assailants.
But before Daniel could do so Ch. 3 stabbed Daniel also, inflicting a fatal injury, and wrested away the rifle from him. In the lane the Inspector was further cut on the head with a chopper by Ch. 4. Chapter 4 and 11 cut Pw. 52 also and the 7th accused and Ch. 13 beat Pw. 20 with sticks. While the Inspector, Daniel and Pws. 20 and 52 were being thus cut and beaten accused 2, 3, 4, 5, 6, 8, 9, 10, 12, and 13 and Ch. 1, 6, 14, 18, 19 and 20 were instigating and encouraging the assailants. After the Police Inspector and Daniel were mortally wounded, finding themselves completely overpowered the police party retreated from the lane into the paddy field.
In the paddy field at the point marked B in Ex. BZ the assailant caught and surrounded Police Constable, Vasudevan Pillai, and Ch. 1 and 6 stabbed him with a knife and a dagger. Accused 2, 3. 5 and 6 cut him with choppers on various parts of his body, and as a result of the attack by all these persons Vasudevan Pillai fell down and died immediately. The Inspector, who was mortally wounded and who was trying to escape with the help of some of his men, was over-taken and attacked again at the point marked O in Ex. BZ, a few feet to the north of point E. At that point, Ch. 3 stabbed him again causing another fatal injury, Ch. 18 beat him on the face with a heavy stick smashing the jaws and knocking off several teeth, and accused 2, 5, 9 and 11 and 12, Ch. 4 and 6 cut him with choppers. Altogether the Inspector sustained seventeen injuries. He fell down and died at point C as a result of these injuries.
To the north of point C there is a bund running east to west through the middle of Kizhakkada Vayal. In the paddy field to the north of that bund, at point D, the assailants caught the fleeing Daniel also, and accused 3, 5 and 6 cut him with choppers and Ch. 1 struck him with a stick. Danial fell down immediately. Thinking that he had died the assailants next turned their attention to Police Constable Kunjupilla Asari who was running away northwards to effect his escape. At point E, some distance to the north of point D, they overtook and caught Kunjupilla Assari. The 1st accused gave a fatal stab to Kunjupilla Assari at point E, and at the same place accused 4, 8 and Ch. 14 cut him with choppers and the 7th accused and Ch. 13 struck him with sticks. Kunjupilla Asari also died on the spot as a result of this attack. The rest of the police party managed to escape receiving only trifling injuries from missiles thrown by some of the assailants.
(e) Escaping from the paddy field Pw. 7 made his way to the house of Pw. 37, and from there he went with Pw. 21 in Unnunni's car to Kayamkulam and informed the Inspector in charge of the Kayamkulam Police Station, Pw. 53, about the incident. After communicating with the District and Assistant Superintendents of Police by telephone, Pw. 53 collected all the available police constables at Kayamkulam and went immediately to Sooranad. He reached the place by 5 a. m. on 1-1-1950 and found Vasudevan Pillai, Inspector Mr. Mathew, and Kunjupilla Asari lying dead at points B, C and E in Kizhakada Vayal, and Daniel lying mortally wounded at point D.
Daniel was immediately taken to the Mavelikara District Hospital for treatment, but he succumbed to his injuries at 10-20 a. m. on 1-1-1950. At the time of the occurrence, Pw. 59 was the Inspector of Police, Pathanamthitta. On receiving information about the occurrence from Pw. 53, the Assistant Superintendent of Police, Pw. 58, issued orders, also by telephone, to Pw. 59 asking him to proceed to Adoor at once and take charge of that Police Station. At about 6. 30 p. m, Pw. 58 the Assistant Superintendent of Police, and Pw. 59 came to Sooranad and commenced the investigation.
3. Some distance to the north of Kizhakada Vayal there is a dam known as Pallikkal or Pathhikal dam, and a lane branching off northwards from the road a few feet east of the house of Pw. 46 leads to that dam. The prosecution case is that, on learning that the Inspector had come with the police party to Sooranad and was camping at Thennila house, all the accused mentioned in Ex. BS charge-sheet, including the present appellants, assembled together at the Pallikkal dam at about sun-set on 31-12-1949 and resolved to attack and murder the police men and seize from, them the weapons they had brought. For this purpose they are said to have entered into a criminal conspiracy and also to have formed themselves, into an unlawful assembly with the above common object. According to the prosecution the accused mentioned in Ex. BS, charge-sheet had come to the dam armed with choppers, sticks, stones and other lethal weapons and they took the decision to attack and murder the police men on the instructions of Ch. 24 and 26.
4. At the trial all the accused pleaded not guilty and denied participation in the occurrence. According to them, they were falsely implicated in the case by the police.
5. The points urged by the appellants' counsel in this Court are: (1) that the prosecution evidence is unreliable and the particular acts attributed to each of the accused have not been satisfactorily proved (2) that the offence under Sections HOB and 112 IPC have not in any case, been made out, and (3) that the trial in respect of the said two offences was bad as it was without obtaining the sanction required by Sections 191 and 192, Criminal P. C. (Travan-core) that the charge was laid before the Magistrate.
6. To prove that there was a criminal conspiracy to wage war against the Raj Pramukh, the prosecution relied upon the evidence of Pws. 39, 44 and 49 and also upon M. O. 33, and the learned Sessions Judge has accepted this evidence. Pws. 39, 44 and 49 were members of the Janadhipathya Uvajana Sangham, and M. O. 33 is the receipt book of the said Sangham. On the reverse side of the counter-foil of each receipt the pledge to be taken by the members of the Sangham is printed in Malayalam, and every member has to sign that pledge at the time of his enrolment. The learned Sessions Judge has given a free translation of the pledge in paragraph 33 of his judgment. The translation reads:
Capitalism today is taking all steps under the leads of the Anglo-American Imperialist powers to unleash a third world war in order to destroy the Republican forces in the world in a regular blood-bath. It has been made clear that the world can really progress only if Capitalism and private ownership are destroyed and a Socialist State is established. All the East European and other Republican States are arrayed under the lead of the Soviet Union and fighting the Imperialist forces in the cause of peace and progress.
In order to establish the supremacy of the people, all true patriots and advocates of progress in the capitalist States have rallied under the leads of the working classes and are carrying on a restless war. In this war for the establishment of a Socialist State following the defeat of the Imperialist War-mongers, I pledge myself to recognise the lead of the Akhilaloka Janadhipathya Youth League Federation and to accept the decision of the A. T. J.U. League and utilise all my resources to carry out its directives.
According to the prosecution, M. O. 33 was recovered from the house of Pw. 32 in consequence of in- formation received from the 4th accused. The defence would have it that M. O. 33 was foisted on the 4th accused by the Police. Pw. 59, the investigating officer, swears that at the time of his arrest the 4th accused told him that he had kept the receipt book of the Janadhipathya Uvajana Sangham in Pw. 32's house, that he therefore took him to the house of Pw. 32, and that the 4th accused then took M. O. 33 book from above the ceiling of the northern room of that house.
This evidence is corroborated by PWs. 7 and 32. P.W. 7 is one of the police officers who accompanied P.W. 59 when he took the 4th accused to P.W. 32's house. The 4th accused and P.W. 32 are neighbours. They were known to each other for about 20 years; and according to P.W. 32, the 4th accused used sometimes to come and sleep in his house. P.W. 32 says that the 4th accused had asked him several times to become a member of the Janadhipathya Uvajana Sangham and that on some of those occasions he had seen M. O. 33 book with him. Regarding the recovery of M. O. 33, P.W. 32 says that some days after the occurrence the police came with the 4th accused to his house saying that the latter had told them that he had kept the receipt book of the Sangham In his house and that the 4th accused then took the receipt book from above the ceiling of the northern room.
PWs. 39, 44 and 49 also swear that it was 4th accused who enlisted them as members of the Sangham and received their subscriptions. M. O. 33 (c), M. O. 33 (d) and M. O. 33 (e) are the counter-foils of the receipts given to PWs. 44, 39 and 49. The pledge of the Sangham is printed on the reverse sides of all these counter-foils, and PWs. 44, 39 and 49 have signed the pledge. Each of them has identified his signature appearing on the reverse side of the counter-foil of the receipt issued to him. Except the fact that subsequent to the occurrence in this case, the Janadhipathya TJvajana Sangham was declared an unlawful association by the Government of Travancore-Cochin under the Criminal Law Amendment Acts I of 1114 and VI of 1125 and that Pws. 39, 44 and 49 who were members of the Sangham would therefore, be too ready to oblige the police in order to avoid a passible prosecution for having been members of the unlawful association, nothing was urged by the appellants' counsel to discredit the evidence of these three witnesses.
But there is no evidence to show that these witnesses continued to be members of the Sangham after it was proscribed by Government. In the circumstances there is no reason to disbelieve the evidence of PWs. 39, 44 and 49 that they were members of the Sangham and that M.O. 33 c, d and e are the counter-foils of the receipts issued to them by the 4th accused when they paid to him the subscriptions for their membership. In the light of their evidence, the evidence of PWs. 32, 57 and 7 and the prosecution case regarding the recovery of M. O. 33 also appear to be true.
7. There is, however, nothing in the pledge printed in M. O. 33 to support the prosecution contention that the Janadhipathya Uvaana Sangham was formed and was working with the object, of putting an end to Capitalism and private owner- ship and subverting the Government by force and violence. No doubt, the Sangham was against Capitalism and private ownership and desired to put an end to them. It is also clear from the pledge that the Sangham was for the establishment of a Socialist State. So it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy. But from these it does not follow that the Sangham desired to bring about the change by force and violence.
The use of the words 'fight' and 'war' in the pledge does not necessarily mean that the Sangham j planned to achieve their object by force and violence. In these days of 'Sathyagraha Samara' | and non-violent fights the expression 'war' and 'light' are frequently used in contexts where no force and violence is meant at all. We hear of fighting elections, of fighting for people's rights in Parliament, fighting cases in Court, fighting against Govt. on issue of policy and even fighting against popular opinion for the establishment Of new and advanced political theories and ideas. In none of these cases can it be said that the word 'fight' imports the use of force and violence.
It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law.
The pledge printed in M. O. 33 does not really amount to anything more than an undertaking to propagate the political faith that Capitalism and private ownership are dangerous to the advancement of Society and work to bring about the end of Capitalism and private ownership and the establishment of a socialist State for which others are already working under the lead of the working classes. It was open to the members of the: Sangham to achieve these objects by all peace-full means, ceaselessly fighting public opinion that might be against them and opposing those who desired the continuance of the existing order of Society and the present Government.
Reading the pledge by itself, the defence contention that the expressions 'war' and 'fight' in it have reference only to the war of ideas and the fight between the opposing theories on the platform and in the press and the rivalry between them in the matter of actual service and utility to the people, cannot be said to be groundless. The prosecution contended that whatever might be the view taken about the pledge itself, it was clear from the evidence of PWs. 39, 43, 44, and 49 that the Sangham had all along been advocating the employment of force and violence for subverting the present order of society and Government.
According to these witnesses, the Sangham was conducting regular study classes for the inculcation and propagation of political and economic theories and ideas. P.W. 39 claims to have been present at three of the study classes. He says that the 4th accused spoke at the first class and said that, if they organised the labourers and peasants and fought with the Government, workmen would get work and cultivators land. That was all that was taught at the first study class. In the second study class only this lesson was repeated. The third study class took place on 10-5-1125, i.e., 25-12-1949. According to P.W. 39, at that study class Oh. 26 said chat for the advancement of the Communist party policemen should be cut and stabbed. He says that, after Ch. 26 said that police men should be cut and stabbed, the 4th accused brought to the notice of the Sangham the fact that P.W. 23 had bid in auction the flshing rights in Ullannoor tank and that accused 4 and 13 and Ch. 23 and 26 told the Sangham that P.W. 23 should be resisted if he came to fish in the tank, that if they did so P.W. 23 would petition . the authorities and bring the police to assist him and that the police-men should be cut and killed when he brought them.
Practically to the same purport is the evidence of P. Ws. 44 and 49 also. They make one slight variation to what P.W. 39 has said. According to them, at the third study class Ch. 28 said that if he was resisted P, W. 23 would fetch the police and military, and that they should then be cut and stabbed.
P.W. 43 is the father of P.W. 44. He was not a member of the Sangham, but he happened to see one of their meetings at which some of the members exhorted the others to organise the unemployed and fight for the establishment of a Communist Government which would give work to the unemployed and land to the cultivator. Work for workmen or the unemployed, and land for the cultivator is not the cry of the communists alone, but the part of the programme of almost every political party in the country; and all political parties hope to achieve that object by compelling or persuading the Government to take the necessary steps. So long as they do not resort to force and violence and work for the achievement of their object by forcing the hands of Government by peaceful and lawful means they cannot be held liable for any criminal offence.
It is difficult to accept the evidence of P. Ws. 39, 44 and 49 that accused 4 and 13, Ch. 28 and others exhorted the Sangham on 10-5-1125 to stab and cut the police and the military. According to these witnesses, the speakers said that if P.W. 23 was prevented from fishing in the tank he would go and fetch the military and the police and they should then cut and stab the police and the military. Although subsequent events have shown that the Police Inspector came with a party of police constables to enquire about P.W. 23's complaint, it is highly improbable that anyone would have expected on 25-12-1949 that Government would act so extravagantly as to order out a party of soldiers or send even an appreciable body of police constables to enforce P.W. 23's fishing rights worth Rs. 8-9-0.
No one in his senses would have dreamt that the resistance offered to P.W. 23's fishing rights would be sufficient to bring to the spot the military and the police and provide an opportunity for the Sangham to make a spectacular fight with them. There is every reason to think that from the fact that the Inspector actually took out a party of police constables to the spot as a result of Ex. A-M complaint and got involved in a fight with the riotous crowd, the prosecution is now attempting to build back a case that P.W. 23's paltry fishing rights were intentionally resisted in order to bring the military and the police to the spot and thus provide the Sangham with an opportunity to fight with constituted authority.
The prosecution case relating to the study class on 10-5-1125 M. E., i.e., 25-12-1949, appears to be highly artificial and unconvincing. No evidence has been adduced in the case to show that there was a general rising or rebellion of Communists in the country at or about the time of the occurrence or that the attack on the police on the date of the occurrence was part of a general scheme or plan of the Communists to fight with constituted authority and subvert the Government by force and violence. The assailants in this case have not attacked any police station or other Government building or done anything beyond attacking and murdering the police men who came to enquire about P.W. 23's complaint and stoning the motor-cars which brought them to the spot.
After the attack they dispersed, and there is no case that they have committed any overt act other than stoning the cars and attacking the police men in Kizhakada Vayal and the adjoining southern lane. Except the evidence of P. Ws. 39, 44 and 49 relating to the study class on 25-12-1949, which it is difficult to believe, there is no evidence to show that the assailants who attacked and murdered the police men were actuated by any object of a general public nature. When the evidence of P. Ws. 39, 44 and 49 relating to the study class on 25-12-1949 is excluded all that remains of the prosecution case is that some of the persons of the locality who happened to belong to the Janadhipathya Uvajana Sangham opposed P.W. 23 when he came to fish in the Ullannoor tank in pursuance of his Kuthaka-pattom lease and that, while the Inspector of Police was camping at Sooranad with a party of police men to enquire into his complaint about that matter, a large body of persons attacked the police party and murdered some of them. This is not sufficient to show that Government's authority or prerogative was resisted or called in question. Referring to the law on the subject the following passage from the summing up of the Lord President in the case of 'Andrew Hardie (1820) 1 State Tr. (N. S.) 610 (A)' has been quoted with approval in - Jublia Mallah v. Emperor' AIR 1944 Pat 58 (B):
Gentlemen, it may be useful to say a few words on the distinction between levying war against the King and committing a riot. The distinction seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King's authority or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break into a particular prison and rescue certain persons therein confined, or Oblige the Magistrates to set them at liberty or to lower the price of provisions in a certain market, or to tear down certain inclosures, which they conceive to encroach on the town's commons. All such acts, though severely punishable, and though they may be resisted by force, do not amount to treason. Nothing is pointed against either the person or authority of the King....
But, gentlemen, wherever the rising or insurrection has for its object a purpose, not confined to the peculiar views and interests of persons concerned in it, but common to the whole community, and striking directly the King's authority or that of Parliament, then it assumes the character of treason. For example, if mobs; were to rise in different parts of the country to throw open all inclosures and to resist the execution of the law regarding inclosures wheresoever attempted, to pull down all prisons or Courts of Justice, to resist all revenue officers in the collecting of all or any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general measure, which by law can only be authorised or prohibited by authority of the King or Parliament, amount to levying of war against the King and have always been tried and punished of treason. It is, therefore, not the numbers concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local nature,
Judged by the standard laid down by the Lord President it is impossible to hold that there lias been a conspiracy to wage war against the Raj Pramukh or that there are the necessary elements in this case to constitute the offence of waging war against the Raj Framukh.
(8-15) (Their Lordships then discussed the evidence and continued as under:). The learned Sessions Judge has accepted the evidence detailed above. The appellants' main contention in this Court was that the police party must have gone out in the night to make a surprise attack on the opponents of P. Ws. 23 and 28 and their friends while they were peacefully sleeping in their houses, and that the Inspector and the police constables must have sustained the injuries while those whom they were attacking were defending themselves. The extreme improbability of this story has already been pointed out in paragraph 11 above.
The dead and the injured persons were found on the next morning lying in the paddy field and not in the houses or compounds of any of the accused. Except a broken piece of lathi all the sticks and stones produced in this case were recovered by the police from the lane or the paddy field. The broken piece of lathi referred to above was recovered from a compound adjoining the lane. It must have been thrown away by a fleeing police constable. If the police had made a sudden surprise attack in the night, one fails to understand from where their victims got all these stones to throw them with. The stones must have been follected'and the slings prepared earlier with the definite object of at ticking the police men.
All the witnesses who saw the accused and their partisans at the dam say that the accused's party marched away from the dam armed with choppers, sticks, stones and slings. The prosecution case is that Daniel had a musket with him at the time of occurrence and that the Inspector and the other police constables also had a cane and lathis with them. It was urged that this would show that the police party had gone deliberately armed for assaulting the opponents of P. Ws. 23 and 28. The Inspector had a cane with him and the other police constables had lathis with them. These are their usual weapons and there is nothing sinister or suspicious in the Inspector and his men having taken thess weapons with them when they went from Thennila house on hearing that their car had been atoned by an armed band of ruffians.
It is noteworthy that the defence has not 'been able to put a single witness into the box to spess; to their case of a surprise attack by the policemen in the night while the accused and others were sleeping in their houses. If that case was true, plenty of witnesses could have been easily got to speak to it. Some criticism was also made by the appellants' counsel on the score that the prosecution has not produced independent witnesses to corroborate the evidence of the police constables regarding what had taken place in the lane. The occurrence in the lane took place almost at dead of night. It was a planned ambush on the police party, and so, in the very nature of things, it was not possible for the prosecution to get any witness, who was not in the police party, to give evidence about that occurrence. In the police party itself, there were some persons who did not belong to the police force. One of them, P.W. 25, was the 1st accused's uncle, and he has given evidence implicating the 1st accused and amply corroborating the evidence of the policemen.
P. Ws. 23 and 24 also have given evidence corroborating the version given by the police men. But, of course, it can .be said that they are not independent witnesses inasmuch as the origin of the incident was due to P.W. 23's complaint, and P. Ws. 23 and 48 were accompanying the police party from Adoor. P. Ws. 25, 36, 37, 39, 43, 44, 45, 46, and 49 are all independent witnesses and their evidence fully bears out the main prosecution case - apart from all its details. Some of the details of the happenings in the lane are spoken to by P.W. 25. Except the suggestion that P.W. 25 was speaking on account of compulsion by the police, which he denied, the defence has absolutely nothing to urge against P.W. 25's evidence; and his evidence proves beyond the least shadow of a doubt that there must have been a conspiracy to attack the police party, that in pursuance of the conspiracy one of the cars of the police party was stoned, that oli entery heel and assaulted in the lane by some rioters at whose head was the 1st accused, and that it was the first accused who gave the first fatal stab to the Police Inspector.
There is no reason why P. Ws. 7, 19, 20, 21, 22 and 52 should have singled out the particular persons mentioned by them as the persons -who cut, stabbed and beat the dfferent members of the police party. Identification was easy as there was perfect moonlight and the major part of the occurrence took place in an open paddy field. The lane also was close to the paddy field and there was practically nothing in it to obstruct the vision.
Another criticism levelled by the appellants' counsel against the prosecution case was the failure of P.W. 53 to record a first information statement from P.W. 7 as soon as the latter came to the Kayamkulara Police Station and reported the incident. This contention was advanced in the lower court also and is dealt with by the learned Sessions Judge In paragraph 108 of his judgment. The learned Judge says:
Lastly an argument was built on the omission of P.W. 53 to record a first information statement when P.W. 7 presented himself before him right from the scene of occurrence. P.W. 53 when questioned stated that P.W. 7 had come there seeking his aid in a desperate situation and having regard to the circumstances he thought his first duty was to hasten with all available men to Sooranad. I do not think P.W. 53 erred in doing this and that the non-taking of an P. I. statement from P.W. 7 at the time was motived by any improper considerations.
We entirely agree with his view. On the whole, we are satisfied that the prosecution evidence regarding the occurrence detailed above is reliable and true and can be safely acted upon, and that the learned Judge was right in accepting the same.
16. The appellants' counsel stated at the time of hearing that the analysis of the above evidence made by the Sessions Judge in paragraphs 111 to 122 of his judgment, wherein he was given a summary of the evidence against each accused, is correct and that he had nothing to urge against the analysis of the evidence as against the appellant made by the learned Judge. We have also carefully checked the analysis made by the learned Judge and found it to be correct. In the circumstances after the exhaustive review of the whole evidence made by us in paragraphs 8 to 15 above, it will be superfluous to set out again in this judgment a summary of the evidence against each appellant.
It has, however, to be pointed out that over and above the evidence discussed above, the learned Judge has accepted, as against the 9th accused, Ex. A-O confession made by him. That confession has been accepted by him only against the maker thereof and not against any of the remaining appellants. P.W. 18 is the Magistrate who recorded the confession. Ex, A-O contains a full and free admission of the prosecution case, and it is fully corroborated by the evidence already referred to above. The confession has been set out in extenso in paragraph 118, of the Sessions Judge's judgment. Prom P.W. 18's evidence it appears to have been freely and voluntarily made. Nothing however turns in this case on the confession, for the prosecution case against the 9th accused is fully proved, even apart from Ex. A-O by the evidence referred to in paragraphs 8 to 15 above.
The evidence discussed in those paragraphs and accepted by us proves beyond the shadow of a doubt the following facts, viz.
1. At about sunset on 31-12-1949 all the appellants in this case and some of their partisans and friends met together at Pathirikkal dam and agreed to assault and murder Inspector Mr. P. J. Mathew and the police constables whom he had brought with him to Sooranad that afternoon.
2. The 4th accused took the leading part in calling together this meeting.
3. In pursuance of the criminal conspiracy entered into at the Pathirikkal dam, the appellants and their friends formed together into an unlawful assembly having the common object of assaulting and murdering the inspector and the police constables who had come to Sooranad, and in prosecution of the common object of the unlawful assembly the appellants and their friends ambushed the police party in the lane to the south of Kizhakada Vayal, springing upon them from both sides of the lane as they were proceeding through it and throwing stones at them and also cutting and stabbing and beating the Inspector and the police constables. The members of the unlawful assembly had come from Pathirikkal dam armed with deadly weapons such as choppers, knives, daggers, stones, slings and sticks.
4. In the lane the 1st accused stabbed the Inspector on the abdomen inflicting a fatal stab and Ch. 4 cut him on the head with a chopper; Ch. 3 stabbed constable Daniel also on the abdomen; and PWs. 19, 20 and 21 were beaten and hit with stones and P. W, 52 was cut on the head and shoulders.
5. After the police party retreated from the lane to the paddy field all the appellants and some of their friends pursued them, and the spot in the paddy field shown as point B, in Ex.. BZ, Ch. 1 and 6 stabbed police constable Vasudevan Pillai inflicting fatal injuries on him and accused 2, 3, 5, and 6 also cut him with choppers at that spot. Vasudevan Pillai died as a result of all the injuries.
6. At the spot in the paddy field shown as point C in Ex. BZ, Ch. 3 stabbed Inspector Mr. Mathew with a dagger causing another fatal injury, Ch. 18 beat him with a heavy stick on the face smashing his jaws and knocking out his teeth, and accused 2, 5, and 9 and Ch. 4 and 6 cut and hacked him with choppers. The Inspector died at point C as a result of the injuries caused to him by 1st accused in the lane, and by accused 2, 5, and 9 in the lane and by Ch. 1 and accused 3, 5 and 6 in the paddy field.
7. At point D in paddy field police constable Daniel was beaten with a stick by Ch, 1 and cut with choppers by accused 3, 5 and 6. Daniel died on the morning of 1-1-1950 at the Mavelikara Hispital, as a result of the injuries caused to him by Ch. 3 in the lane and by Ch. 1 and accused.
8. At point E in the paddy field, the 1st accused stabbed Kunjupilla Asari with a knife inflicting a fatal injury and accused 4 and 8 and Ch, 14 cut him with choppers and Ch. 13 beat him with sticks. Kunjupilla Asari died at that point as a result of the injuries inflicted by the above accused.
17. On the findings recorded above all the appellants are clearly guilty of the offences punishable Under Section 110-B, T. P. O. and all of them except the 13th accused are also guilty of the offences punishable Under Section 140, T. P. O. As there is no evidence to show that the 13th accused was armed with any deadly weapon at the time of the occurrence he can be held liable only for the offence Under Section 139, T. P. C. and not for the offence Under Section 140, T. P. C.
For the murders of the Inspector and Kunjupilla Asari the first accused is also clearly liable Under Section 301, T. P. C. Since there is no evidence to show that the injury caused by the remaining appellants to the Inspector or the police constables was by itself fatal, the learned Sessions Judge has convicted them only for offences Under Section 307, T. P, C. For their individual acts in cutting and stabbing the Inspector and the police constables, and the learned Public Prosecutor has not questioned the correctness of that conviction.
In the circumstances we would confirm the fcon-viction entered by the Sessions Judge Under Section 307, T. P. C. against the 2nd accused for the injuries caused by him to the Inspector and Vasudevan Filial, against the 3rd accused for the injuries caused by him to Vasudevan Pillai and Daniel, against the 4th accused for the injury caused by him to Kunjupilla Asari, against the 5th accused for the injuries caused by him to the Inspector and Vasudevan Pillai and Daniel, against the 6th accused for the injuries caused by him to Vasudevan Pillai and Daniel, and against the 9th accused for the injuries caused by him to the Inspector, For the assault on P.W. 20, the 7th accused is liable Under Section 332, T. P. C,
As there is no evidence to show who it was that actually caused hurt to PWs. 19, 20 and 21 and all that can be said about their injuries is only that they were caused by the members of the unlawful assembly in the prosecution of their common object, for the injuries caused to them the appellants are only constructively liable Under Section 141, T. P. C. For the grievous hurt caused to |P.W. 52 also, the appellants are liable only Under Section 141, T. P. C. Every one of the appellants is consiructively liable Under Section 141, T. P. C. for the offences committed by the other members of the unlawful assembly, that is to say, all of them are liable Under Section 141, T. P. C. read with Sections 301, 307, 324, 326 and 332, T. P. O.
18. It was contended by the appellants' counsel that the conviction Under Section 110-B T. P. C. for criminal conspiracy, is unsustainable for want of necessary sanction Under Section 192 Criminal P. C. (Travancore) corresponding to Section 196-A of the Indian Code. As the 2nd accused was arrested on 15-1-1950, the prosecution had to lay a charge sheet before the Magistrate before the period of his remand ran out and, therefore, they laid an incomplete charge before the Kunnathoor Taluk Second Class Magistrate on 30-1-1950. Ex. BQ shows that Government gave the sanction for preferring a complaint Under Sections 110-B & 112, T. P. C. only on 21-3-1950.
The appellants' counsel contends that, as the first charge was laid before the court, before the sanction was accorded, the conviction Under Section 110-B, T. P. C. is unsustainable. At the time the incomplete charge-sheet was laid, viz., 30-1-1950, most of the accused mentioned in the charge sheet were absconding and the investigation of the case had not been completed. After the completion of the investigation and the arrest of all the appellants and some of their comrades P.W. 59 laid a final charge-sheet before the same Magistrate on 30-6-1950 and produced Ex. BQ along with it. Ex. BS Is the final charge-sheet.
It was only after the final charge-sheet was laid, that the committing Magistrate took cognizance of the case and proceeded with the preliminary enquiry. Till then the case was being adjourned for the receipt of the final charge. All the witnesses were examined only after the final charge-sheet, Ex. BS, was laid and the sanction, Ex. BQ, was produced in court. In the circumstances, we hold, that the requirements of Section 192, Criminal P. C. (Travancore) corresponding to Section 196-A, of the Indian Code, had been complied with in this case and that there is no substance in the contention that the conviction Under Section 110-B, is unsustainable for want of necessary sanction for the filing of a complaint for the offence under that section.
19. In the result the appeal is dismissed except as regards the conviction of the appellants Under Section 112, T. P. C. and the sentences passed upon them for the said conviction. The convictions of the appellants Under Section 112 T. p. 'c. and the sentences passed upon them by the learned, Sessions Judge for the said offence are set aside, but their convictions for all the other offences for which they have been convicted by the learned Sessions Judge and the sentences passed upon them for those convict ons are confirmed.