1. Criminal Appeals 139, 140, 141, 142, 143, and 144 are respectively by accused 1 to 6 in Sessions Case No. 52 of 1955 on the file of the Quilon Sessions Court. The six accused persons were tried by the learned Sessions Judge with the aid of four assessors for committing the murder of one Madhusoodanan Pillai in the evening of 15-1-1954.
Accepting the unanimous opinion of the assessors the learned Judge found accused 1 guilty of the offences punishable under Sections 143 and 302, I.P.C. and sentenced him to death under Section 302. The remaining accused 2 to 6 have been found guilty under Sections 148, 149, 341 and 302 read with Sections 34 and 109, I.P.C. and each of them has been sentenced to transportation for life under Section 302 road with Sections 34 and 109, I.P.C.
While the accused persons have preferred separate appeals against their convictions and sentences, the learned Judge has submitted the records of the case to this Court under Section 374, Criminal P.C., for confirmation of the death penalty against accused 1.
2. The appellants wore represented before us by Mr. Mallur Govinda Pillai, learned Counsel for the appellants and Mr. C. M. Kuruvilla, the learned Public Prosecutor, argued the case elaborately before us, both on questions of fact and on questions of law. Mr. Govinda Pillai subjected the evidence to a very critical examination and pointed out several imperfections in the judgment and in the charges to which the appellants were called upon to plead at the trial.
We have given anxious though to these arguments and have finally come to the conclusion that when the appellants have been convicted of the offence of murder and one of them sentenced to the extreme penalty of the law and the others to transportation for life, we will not be doing the right thing to proceed to Judgment on the merits overlooking the imperfections pointed out treating them to be mere irregularities cured by the curative provisions of the Criminal Procedure Code and stating that no prejudice is shown to have been caused to the appellants on account of those irregularities.
However, while we do not seek to condone a defective trial, in a case like the present one, we do not think it proper to let off the alleged offenders without a proper retrial being held to establish their guilt or innocence as the case may be. Public interests and vindication of justice demand it. in the circumstances we feel constrained to quash the convictions and sentences passed by the learned Judge and direct a retrial of the case. In order that either side should not be prejudiced at the retrial we shall refrain from discussing the evidence or pronouncing any opinion about it.
3. The first and foremost defect we would advert to is that while it was alleged that there was an unlawful assembly formed with the common object of causing the death of Madhusoodanan Pillai, there is no finding as to whether the 8acts done were committed for the prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, or even as to when the assembly came into being.
Paragraphs 17 and 18 of the judgment come very near discussing these aspects, but there is no finding recorded by the learned Judge justifying his calling to aid the provisions of the Penal Code relating to constructive liability of the members of an unlawful assembly.
It is common place of the law relating to unlawful assembly and rioting that the common object of an unlawful assembly must be definitely found and not merely left for conjecture or inference from other facts found in the judgment - vide Mayne's Criminal Law of India 4th Edition Part II, page 309. In - 'Behari Mahtom v. Queen Empress' 11 Cal. 106 (A), it has been stated:
An accused person is entitled to know with certainty and accuracy the exact value of the charge brought against him. Unless he has this knowledge he must be seriously prejudiced in his defence. This is true in all cases, but it is more especially true in cases where it is sought to implicate an accused person for acts not committed by himself, but by others with whom he was in company.
This case has been followed in subsequent cases, notably in cases like - 'Sabir v. Queen Empress' 22 Cal. 276 (B) and Poresh Nath Sircar v. Emperor' 33 Cal. 295 (C). In - 'Allah Dad v. Emperor' 1924 Lah. 637 (2) AIR V 11 (D), the decision in - 'Sabir v. Queen Empress' (B) has been followed.
4. Likewise the judgment does not record any finding as to the common intention of the participants of the occurrence which led to Madhusoodhanan Pillai's death. Section 34, I.P.C. has been invoked both in the charges against the accused persons and in the judgment. Indeed the conviction of accused 2 to 6 for murder is read with Section 34 as also Section 109, I.P.C.
When the learned Judge thought it necessary to invoke the provisions of Section 34 as well, he should certainly have recorded a finding as to the common intention of the participants and as in the case of the common object of an unlawful assembly it cannot be left for conjecture or inference from other facts set out in the judgment.
To a certain extent Section 34 and Section 149 overlapped and when on the facts of a given case there could be 'no difference between the object or the intention with which the offence in question was committed, there is nothing wrong in invoking the aid of both the sections, but the court cannot enter a conviction for an offence read with either section unless it finds the elements justifying its application to have been made out on the evidence.
5. Nor does the judgment explain by what acts accused 2 to 6 abetted the action of accused 1 in causing the death of Madhusoodhanan Pillai. So far as we are aware there is no evidence of any prior abetment and we are led to infer that the alleged abetment consisted of the alleged preventing by accused 2 to 6 of Madhusoodhanan Pillai from escaping from the scene of the crime while accused 1 was inflicting injuries on him.
We fail to see why the provisions of Section 109, I.P.C. should have been considered necessary to be invoked in the case. If the learned Judge thought that the path of prudence lay in having also Section 34 introduced into the charge besides Section 149, it was in our opinion unnecessary to call in aid Section 109 as well.
The act of abetment that falls under Section 34 is committed at the time the offence itself is committed and in the case of a riot there is no need to base a conviction on the ground of abetment - vide Mayne's Criminal Law of India (4th Edition) Part I, Pp. 67 to 68.
6. The imperfection of the judgment pointed out, namely, the absence of a finding as to the elements to establish constructive liability under Section 34 or Section 149, I.P.C, is by no means an imperfection which we can overlook.
A mere mention of the relevant sections in the j charges to which accused persons are called upon to plead or when entering convictions against them will not satisfy the conscience of an appellate court that the lower court has applied its mind to the question whether the elements attracting the application of the rules relating to constructive liability for crimes are present in the case nor would such mere mention of the sections clothe accused persons with proper notice of the crimes for which they are sought to be made constructively liable. These remarks apply with equal force to a charge relating to the abetment of an offence.
7. Now we shall proceed to the criticisms levelled against the charges framed in the case. According to the prosecution, accused 1 was guilty of the offence under Section 148 rioting armed with deadly weapon) and of the offence under Section 302 murder. It is not clear to us whether the prosecution or the lower court treated the first blow struck by accused 1 on Madhusoodhanan Pillai while he was passing along on his bicycle as an act calculated to wrongfully restrain him. If that be so a charge under Section 341 was also justified.
When the other five members of the unlawful assembly wrongfully restrained Madhusoodhanan Pillai, accused 1 was liable to be punished for that offence either under Section 34 or under Section 149. So a proper charge to be framed against accused 1 was under Sections 148, 341, 302 and 341 read with Section 34 and/ Cr Section 149.
Without making the position clear in this manner what is stated in the charge against acacused 1 is that he was guilty of the offences punish- able under Sections 148, 149, 341 and 302 and 34. It was complained that the charge being in this loose fashion he, cannot be expected to have noticed that he was being tried for the commission of the sub-stantive offence of murder or for rioting armed with deadly weapon. These are the offences for Which accused 1 has been convicted.
While this criticism is not without force, reading the charge as a whole we cannot think that accused 1 could have been misled as to the substantive offences for which he was being tried. In the body of the charge it is specifically stated that amongst the members of the unlawful assembly that lay in wait for Madhusoodanan Pillai, accused 1 was armed with a deadly weapon and that he used that against Madhusoodanan Pillai repeatedly with deadly effect.
Nothing is therefore more clear from the charge than that accused 1 was being specifically charged with the commission of the substantive crimes of rioting armed with deadly weapon and for murder. All the same we feel that no criticism will be too strong where sessions courts frame charges in this loose and irregular fashion. A person must be told as to what offences he is being directly charged with and what others, if any, he is being sought to be vicariously made liable. There is no reason or rhyme to seek to make a person who has committed a criminal act with his own hand liable constructively for that act under any of the sections of the Penal Code relating to vicarious responsibility.
As the principal offender the charge and the conviction against him must be for the substantive offence he committed and not for that offence by virtue of any vicarious responsibility - see - 'Ram Durlav v. State' 1955 Assam 226 AIR V 42 (E) and the recent decision of this Court in Criminal Appeal No. 137 of 1955 and Referred Trial No. 14 of 1955 T.C. (F). We seek here to emphasise that it is important that subordinate courts pay adequate attention to a case at the initial stage of drawing up the charges against persons who are put on trial before them.
Two recent pronouncements of the Supreme Court, - 'Nanak Chand v. State of Punjab' : 1955CriLJ721 and - 'Suraj Pai v. State of Uttar Pradesh' : 1955CriLJ1004 will show to what consequences failure to bestow sufficient attention and thought in the framing of the charge can lead to. In the circumstances of the present case a proper charge to be drawn up against accused 1 was as stated earlier, that is, one accusing him of the commission directly of the offences under Section 148 and Section 302 as also of that under Section 341 read with Section 34 and/or Section 149. If the court holding the trial takes the view that the first step towards wrongful restraint was the blow dealt when the victim was on the bicycle, it is open to that court to have a direct charge for the offence under Section 341 also in addition to the charge for the offences mentioned.
8. A further point taken by the learned Counsel for the appellants was that in the charge drawn up by the lower court against accused 1 describing the scene of the offence the court had located it at a distance of 145 feet away from the house of Madhusoodanan Pillai. The earlier part of the charge sets out that the members of the unlawful assembly lay in wait for Madhusoodanan Pillai in the public road in front of the house of accused 1.
While the scene is accordingly described in the charges drawn up against accused 2 to 6, in the charge against accused 1, no doubt, due to a clerical error, the scene is referred to as at a distance of 145 feet from the house of the victim himself. Such mistakes are unpardonable in sessions trials for murder. Far be it from us to suggest that this mis-description has caused any prejudice to accused 1.
No mention is made of it in the memorandum of appeal and the vigilant eyes of the learned de-fence counsel were attracted to it only at the time of his reply argument. Had this misdescription Istood alone we may not have interfered in the manner we are doing now, but we can find no excuse for the prosecution or the learned Judge, on whom the ultimate responsibility for framing the charge rests, for making such a grievous mistake.
9. We shall now proceed to consider the criticism relating to the charges to which accused 2 to 6 have been called upon to plead. Each one among them has been charged with offences punishable under Sections 148, 149, 341 and Section 302 read with Section 34 and Section 109. When they are sought to be made liable for murder under Sections 34 and 109 it looks fairly clear that the learned Judge was charging one and all of them being directly liable for the offences punishable under Sections 148, 149 and 341.
The omission to seek to make them liable for murder read with Section 149 is inexplicable, particularly when the common intention of the participants in the commission of the crime had to be found or inferred from the same set of circumstances and facts as those from which the common object of the unlawful assembly had to be made out and when the evidence as to abetment by aiding consisted only of the general evidence that while accused 1 was inflicting cuts on Madhusoodanan Pillai with a chopper, the other accused persons prevented him from running away and not any specific act in that regard attributed to any one person among accused 2 to 3.
We consider this to be a serious omission for which we can find no excuse. The learned Judge had included among the charges against these five persons the commission of offences punishable under Sections 148 and 149. The scope and amplitude of Section 149 is much wider than that of either Section 34 or Section 109 and to leave out Section 149 in relation to the charge of murder is just to keep the door open for guilty men to escape.
10. Again, the learned Judge was in the wrong in charging accused 2 to 6, with the offence under Section 148. It was only accused 1 who was armed with a deadly weapon. A comparison of the language of Section 148 with that of Section 146 would show that it la only the individual armed with deadly weapon that can be brought within the mischief of Section 148 - see Mayne's Criminal Law of India 4th Edition Part I, page 84. 22 Cal. 276 (B), Ratan Lal v. Emperor 1933 Oudh 333 AIR V 20 (I), In re Subba Rao 1941 Mad. 489 AIR V 28 (J), In re Muthuswami Goundan 1942 Mad. 420 AIR V 29 (K), and Rajab Ali v. State 1955 Assam 105 AIR V 42 (L).
Section 148 deals with direct responsibility and a rioter who does not carry a deadly weapon himself cannot be made liable under that Section by virtue of Section 149. The appropriate section to apply to accused 2 to 6 was therefore Section 147. They were all members of an unlawful assembly and one of them to wit, accused 1, had committed violence with a deadly chopper in furtherance of their common object. We need not consider here whether accused 2 to 6 had used force.
11 Furthermore, while Section 149 creates an offence the punishment for it must depend on the offence of which the offender is by that section made liable. There is, therefore, no meaning in charging a person merely with Section 149 as the learned Judge has done in the case. The only purpose such a charge can serve is to create confusion in the minds of the accused persons as to whether they are directly charged with the other offences mentioned or only constructively read with this section.
Indeed that argument was raised in this case. A charge for Section 148 read with Section 149 will not, as explained above, lie. In the manner in which charges have been framed against these persons they can complain that they do not know whether each of them is sought to be directly made liable for causing wrongful restraint or only constructively of that offence read with Section 149.
12. Had the learned Judge charged accused 2 to 6 directly with the commission of offences punishable under Sections 147 and 341 and constructively of murder read with Section 34 and/or Section 149 no exception to the form of the charges could, in our opinion, have legitimately been raised by the defence. The cause of the prosecution would also have been well served by charges framed in the above terms. If so advised a charge against these accused persons under Section 341 read with Section 34 and/or Section 149 would not also have been redundant. Each of them is constructively liable for the wrongful restraint caused by the others among them.
13. For the foregoing reasons, we allow these appeals, set aside the convictions and sentences passed by the lower court against the appellants and direct that they be retried according to law. The reference will stand rejected.
14. Pending retrial the prisoners are committed back to the custody of the Quilon sessions Court. The Inspector-General of Prisons will do the needful immediately to transfer them from the Central Prison, Trivandrum to Quilon. Order accordingly.