Kunhi Raman, C.J.
1. This batch of criminal appeals is brought on behalf of the accused persons who were convicted by the learned Sessions Judge of Parur in S.C. No. 1 of 1951. The 1st accused was convicted of the offence of murder under Section 301 of the Travancore Penal Code and sentenced to rigorous imprisonment for life. The records are submitted for confirmation of this conviction and sentence in Referred Trial No. 15 of 1951. Since these appeals arise out of the judgment pronounced by the Court below in S.C. 1 of 1951 they were all posted together, the contentions urged on behalf of the appellants being practically the same, except in the case of the 6th accused appellant on whose behalf it is contended that there is an additional point to be considered by this Court regarding evidence about his identity.
2. The court below tried 21 persons who were charged with various offences and acquitted four of them. The remaining 17 were convicted. After filing his appeal, accused No. 10 died, but since the sentence passed upon this accused includes a fine the appeal does not necessarily abate. The learned Public Prosecutor who appears on behalf of the State asks for time to ascertain whether the conviction in respect of the sentence of fine should be supported in appeal. Appeal No. 78/1951 was accordingly adjourned for one week to enable the Public Prosecutor to make a report. The remaining 16 appeals were heard and this judgment deals with these 16 appeals.
The following is a tabular statement of the 16 appeals showing the number of the accused persons who are the appellants therein:
1st accused Cri. App. No. 97/51 & Ref.Trial 15 of 1951.2nd accused ...89/513rd accused ...72/514th accused ...73/516th accused ...74/517th accused ...75/518th accused ...76/519th accused ...77/5111th accused ...79/5112th accused ...80/5113th accused ...81/5114th accused ...82/5116th accused ...83/5118th accused ...84/5119th accused ...85/5120th accused ...86/51
3. The court below has acquitted accused Nos. 5, 15, 17 and 21 and there is no appeal brought on behalf of the State from these orders of acquittal.
4. The case for the prosecution was that a mob of 26 persons who are alleged to be members of the Communist group of politicians attacked a small body of policemen consisting of one Head Constable and 5 constables in the course of which a constable was stabbed to death. The remaining five persons sustained bodily injuries as a result of the attack made upon them by the accused. Of these 28 persons, seven absconded and they were not traced by the Police before the trial commenced in the court below and that is why at the trial there were only 21 accused who were prosecuted.
5. The incidents mentioned by the witnesses for the prosecution took place in the Malayalam year 1123 i.e., nearly four years ago, at a place in the erstwhile Travancore State known as Koothattu-kulam within the jurisdiction of the Sessions Court of Parur. The accused persons are reported to be prominent members of the Communist group which predominated in the place of occurrence. There was evidence called by the prosecution to describe the propensities of these accused persons. This, however, was not necessary for the purpose of the case because the court is not concerned with the shade of political opinion of persons charged with offences. The learned Counsel for the appellants commented adversely upon this type of evidence called at the trial and argued that it was irrelevant and unnecessary for the purpose of this case and that it has prejudiced the mind of the trial court against the accused persons.
The learned Public Prosecutor in answer to this argument has stated that originally the intention of the prosecution was to charge the accused not only for the offence for which they were tried, but also for the offence of waging war against the State. This was ultimately abandoned on the strength of the advice tendered by the learned Counsel who now appears for the appellants before this Court and who was then the Advocate General of the erstwhile State of Travancore. Seeing that the contemplated charge of waging war against the State was abandoned, there was really no necessity for calling witnesses to prove the earlier incidents that took place in the locality where the offences were committed for the purpose of elucidating the political views of the accused persons. But such evidence in our judgment could not have prejudiced the accused, since the trial court was concerned only with the criminal acts done by the accused on the date of occurrence which resulted in a breach of the peace and injury to the victims and not with the political views of the accused.
6. At the trial, the main charge against the accused was that they were members of an unlawful assembly which resorted to rioting armed with deadly weapons and that some of the members of this assembly committed specific acts of violence for which the remaining members of the assembly also have incurred constructive liability being offences committed in prosecution of the common object of the assembly.
7. As already stated, the case for the prosecution is that Koothattukulam is a Communist stronghold as mentioned in the Judgment of the court below. There were certain other criminal proceedings started against some members of the Communist party in that locality. While the prosecution for such prior incidents was going on in the criminal courts, some of the accused persons absconded, prominent among them being the second accused in the present case while some others were reported to be evading arrest. To effect the arrest of these persons the Head Constable who was examined as P. W. 1 at the trial of this case and three constables (P.Ws. 5 and 6 and Oommen, who was alleged to have been killed by the 1st accused in the course of the incidents narrated by the witnesses in this case) were specially deputed to go to the locality. P.W. 2 is described as a Police Constable belonging to the Intelligence Section of the Police Department. He was also sent to the locality to watch over the activities of the accused persons and their followers.
While these Police officers were engaged in tracing the persons they were deputed to arrest, they came to know that a meeting of the communists of the locality was fixed to be held at 5 P. M. on 14.12.1123 in the premises of a school in Koothattukulam Pakuthy. According to the evidence for the prosecution, about 30 communists attended that meeting which was held in the afternoon of the relevant date and it terminated at about 6-30 P. M. The meeting seems to have been attended by the 2nd accused who was one of the persons wanted by the Police. P.Ws. 1, 5 and 6 and the deceased constable Oommen were observing what was happening at the meeting and observing also the presence of the persons who were wanted by the Police. Two other constables, P.Ws. 2 and 3 attached to the Koothattukulam Police Station also attended the meeting with the object of making a report of its proceedings. They informed P.W. 1 the Head Constable and his party that the 2nd accused was seen by them at the meeting and that after the meeting terminated, he was proceeding towards the west along the Thodupuzha Koothattukulam Road.
The party of these six Policemen, therefore proceeded along that direction with the object of arresting the 2nd accused. They sighted the 2nd accused at a place about 100 feet to the east of a toddy shop in the vicinity. Ext. A, is a warrant issued by the First Class Magistrate of Moovattupuzha to arrest the 2nd accused who was wanted in C. C. 252/1121. This warrant had been endorsed to P. W. 1 the Head Constable, and he had this document in his possession. When the Police party accosted the 2nd accused, P.W. 1 duly produced this warrant and informed the 2nd accused Narasimha Iyer that he was effecting his arrest under this warrant. Narasimha Iyer, the 2nd accused offered resistance. Thereupon, the party of Policemen had to prevent his escape from lawful custody by taking hold of him. when he found that arrest was inevitable, he is alleged to have shouted out loudly calling a communist comrade of his by name Varkki to come to his aid since he was being arrested by the Police.
This person Varkki is one of the accused whose arrest has not been effected and therefore he was not tried in the court below. On hearing the cry for help of the 2nd accused, the prosecution witnesses say, 27 persons who evidently had just left the meeting, appeared on the scene armed with deadly weapons consisting mainly of sticks and rushed at the party of Policemen. This group of individuals was led by the 1st accused and Varkki who were in front of the mob. The 1st accused happened to be having a dagger in his possession and Varkki is alleged to have had a heavy club in his hands. Of the remaining 25 persons, the 7th and the 14th accused did not have any weapons in their hands. All the others were also armed with dangerous sticks. When they were making a rush towards the Police party, they are alleged to have shouted what is described as their habitual war cry 'Inquilab Zindabad'. This mob contacted the Police party in front of the toddy shop already mentioned. Varkki is alleged to have begun the affray by striking a blow with the stick in his hand on the head of Police Constable Oommen and then striking another blow on the head of P.W. 1.
The 1st accused then used the dagger or knife in his possession for stabbing Oommen on his back. This stab punctured the left lung of the victim and he collapsed as a result of the wound sustained by him. The remaining accused who had come up by that time, are alleged to have dealt a number of blows with sticks on the other police officers. The two accused persons who were not armed are alleged to have struck the Policemen with their bare hands and fists. The object of this attack, as already indicated, was to rescue the 2nd accused from the custody of the Police. The 2nd accused also exerted his utmost to extricate himself from the hold of the persons who had effected his arrest. He was ultimately extricated from their grip and ran away.
Since this was the main object of the assailants, as soon as the object was attained they left the scene, again shouting their slogan 'Inquilab Zindabad'. The surviving Policemen then naturally devoted their attention to their colleague who had fallen as a result of the stab wound inflicted by the 1st accused. They found that he was dead and they had his body removed to the Koothattukulam Police station where an inquest was held.
8. This was followed by a Police investigation and 28 of the accused persons were charged by them. Out of these 28, they succeeded in arresting only 22. Out of the 22, one escaped while he was in custody from the Central Prison at Trivandrum. The remaining 21 persons were tried in the court below.
9. All these 21 persons were not, however, arrested at the same time. In the beginning the Police were able to effect the arrest of only 16 out of the 21. Thereupon, a preliminary enquiry was started against these 16 persons in P.E. 33 of 1123. Subsequently, seven more persons were apprehended and then another preliminary enquiry - P.E. 34 of 1950 - was started. As a result of both these preliminary enquiries, 22 accused persons were committed for trial to the Sessions Court at Parur. It was after the order of commitment was passed, that one of the 22 persons escaped. The learned Judge started the trial of the remaining 21 accused persons.
10. P.Ws. 1 to 12 are the eye-witnesses who actually saw the incident and the rescuing of the arrested second accused from the custody of the Police Officers, especially P. W. 1 who had the warrant of arrest with him There is no doubt from the evidence of these witnesses that in response to the cry for help which emanated from the 2nd accused when he was arrested and held by the Policemen to prevent his escaping from their custody, the remaining accused persons rushed up with the object of rescuing the 2nd accused Narasimha Iyer from Police custody. That was certainly their common object as found by the, learned trial Judge. The evidence of the important eye-witnesses was read out to us and we entertain no doubt about the correctness of the finding recorded by the learned trial Judge on this point.
In our judgment, however, the assembly became unlawful when they reached the vicinity of the toddy shop in front of which the 2nd accused was being held by the Policemen who had effected his arrest. It was then that they conceived the idea of liberating their comrade from the custody of the Policemen and resorted to violent action including the use of force and 1st accused perpetrated the murder of Oommen, one of the Police constables. We are not prepared to subscribe to the view which we find expressed in the judgment of the learned trial Judge that even when the communist meeting was convened at 5-30 in the vicinity of the place where the arrest was effected, the 2nd accused and his companions had entertained the idea of enticing the small band of Policemen in the locality to a fight under the impression that by force of their numbers they could easily overcome the activities of the Police. Nor are we satisfied that they had any idea of humiliating the Police force as a whole by defeating half a dozen Policemen in a fight.
On the other hand, in view of the evidence called at the trial, we are inclined to hold that there was nothing unlawful or illegal about the meeting that was held prior to the occurrence, because at that time, there was no prohibition imposed by the Government on communists or any members of other political parties in the State holding a meeting. Whether in the speeches that were delivered at the meeting, views were expressed which might bring the speakers within the purview of the criminal law of the State, is not elucidated by the evidence of the witnesses at the trial. The object of the prosecution was to establish that at the time that the Police party who had arrested the 2nd accused was attacked by the mob, they constituted themselves into an unlawful assembly with the object of rescuing the 2nd accused from custody. This has been established and it is also evident from the fact that after the rescue was effected, the mob disappeared from the scene without continuing their attack on the Policemen.
Therefore, there is no doubt that there was an unlawful assembly. There is evidence to show that 1 Nome of the members of the unlawful assembly were armed with dangerous weapons. The 1st accused had a sharp instrument like a dagger or knife in his possession. The weapon that was used in stabbing Oommen does not seem to have been recovered. The dagger which is produced as M.O. II in court was alleged to be in the possession of the 1st accused when he was arrested a few days subsequent to the occurrence. It does not really matter whether it was M.O. 2, the dagger, that was used by the 1st accused in stabbing Oommen. There is no doubt that a sharp weapon was used for stabbing the victim and that as a result of the stab, he died, thereby making the person Who inflicted the injury liable for murder. The possession of these dangerous weapons by the members of the mob and the force that they used for the purpose of rescuing the 2nd accused from the custody of the Policemen made the persons who participated in the unlawful assembly liable for rioting armed with deadly weapons.
11. The learned Counsel for the appellants has raised a contention that the 2nd accused was not lawfully arrested by P.W. 1 under the warrant Ext. A and that he was, therefore not in lawful custody when he was rescued by the accused persons who participated in the riot. This contention is based upon the wording of Section 63 of the Travancore Criminal Procedure Code. This section corresponds to Section 75 of the Indian Code of Criminal Procedure, the wording of both provisions being similar. According to this section, every warrant of arrest issued by a court shall be in writing signed by the Presiding Officer...and shall bear the seal of the court. Sub-section (2) lays down that every such warrant shall remain in force until it is cancelled by the court which issued it or until it is executed. The warrant in the present case which has been marked as Ext. A does bear the seal of the court of the Magistrate who issued it. After issuing the warrant, since the 2nd accused was wanted in connection with the trial of C.C. No. 252 of 1121 in the Court of the First Class Magistrate of Muvattupuzha there was a direction endorsed on the warrant requiring the Policeman who was entrusted with it to arrest and produce the accused by the date to which the case stood adjourned.
The arrest could not be effected by that date. The case was consequently adjourned to a later date and a similar endorsement for the production of the accused on the adjourned date was again made on the warrant. We find that owing to the inability of the Police officer to execute the warrant according to these directions, a series of subsequent endorsements had to be made on the warrant and on a piece of paper annexed to the warrant fixing the date by which it should be executed. It is only the warrant that bears the seal. These subsequent endorsements do not bear the seal of the court. This is made the ground for attacking the validity and legality of the warrant by saying that these endorsements which are really extensions of the period for which the warrant was issued are not valid or legal, because one of the essential conditions prescribed by the relevant section of the Criminal Procedure Code has not been complied with inasmuch as no seal was affixed to these endorsements.
The learned Public Prosecutor contends that the warrant does not in terms specify that it is to remain in force only for a particular period. It bears the seal of the court that issued it. The directions endorsed on the warrant and in the paper annexed to it are merely directions given to the Policemen to whom the warrant was addressed and absence of the seal on these endorsements cannot invalidate the warrant itself. This contention in our judgment is well founded, especially in view of the second part of Section 63 of the Travancore Code of Criminal Procedure (Sub-section 2 of Section 75 of the Indian Criminal Procedure Code) according to which the warrant shall remain in force until it is cancelled by the court which issued it or until it is executed. In the present case until the arrest was actually effected by P.W. 1, the warrant was not cancelled by the court which issued it. Therefore, the period during which the warrant remained in force did not expire prior to the date on which it was executed by the arrest of the 2nd accused. There is, therefore no substance in the contention of the learned Counsel for the accused appellants.
12. The nest question for consideration is as to the nature of the offences that were committed by the accused persons who have been convicted by the trial court. Taking the case against the 1st accused, the view taken by the learned trial Judge is that he caused the death of Police constable Oommen and thereby became liable for the consequences of his conduct individually and that criminal liability for this incident is not shared by the other members of the mob. According to the learned trial Judge, it was not the common intention of the mob to commit murder. There is nothing to show that the other members of the mob were aware of the fact that the 1st accused did have a sharp weapon like a knife or dagger in his possession and that he was going to use it to stab Oom-men. We are entirely in agreement with this view taken by the learned trial Judge. There is no constructive liability in the circumstances incurred by the other members of the mob for this act of stabbing done by the 1st accused. It is only the 1st accused that is liable for this offence committed by him.
There cannot be any doubt that it was the 1st accused who stabbed and killed Oommen, because it is spoken to by all the eye-witnesses, P.Ws. 1 to 12. We have also scrutinised the evidence of these witnesses. There is nothing which detracts from the credit of these witnesses and their evidence regarding the brutal act committed by the 1st accused has not been shaken in cross-examination. The finding that the 1st accused is guilty of murder inasmuch as he caused the death of constable Oommen by stabbing him with a sharp weapon and puncturing his lung is, in our opinion, correct. We accordingly confirm the conviction under Section 301 of the Travancore Penal Code and the sentence of rigorous imprisonment for life passed by the learned Sessions Judge on the 1st accused.
The learned trial Judge has also found him guilty under Section 140 and has found that he has incurred constructive liability for offences under Sections 222 and 332 read with Section 141 of the Travancore Penal Code. That also is fully supported by the evidence in this case and although it is immaterial whether these convictions for less serious offences are confirmed or not in view of the fact that the shorter terms of imprisonment passed upon the 1st accused in respect of these offences are directed to run concurrently with the sentence of rigorous imprisonment for life, we must say that in our judgment these convictions are also correct. Therefore, the conviction under Section 301 and the sentence of rigorous imprisonment for life passed on the 1st accused are confirmed in Referred Trial No. 15 of 1951, and his appeal No. 97/1951 is dismissed.
13. The next person whose case has to be dealt with is the 2nd accused who has brought criminal appeal No. 89/1951. This was the accused whose arrest was effected by P.W. 1 assisted by his comrade and it was with the common object of rescuing the 2nd accused from the custody of the Police that the rioters attacked the Police. There is no doubt that the 2nd accused was arrested by the Policemen under the leadership of P.W. 1. P.Ws. 1 to 12 speak about this incident. There is also no doubt that the 2nd accused attempted to run away from their custody. Nor can there be any doubt in view of the evidence of P.Ws. 1 to 12 that he was forcibly rescued from the custody of the Police officers mainly at the instance of the rioters and also by the efforts of the 2nd accused. The learned Judge in the court below has however convicted the 2nd accused under Section 139 of the Travancore Penal Code also.
It is strange that no objection was raised to this part of the judgment of the learned trial Judge by the advocate appearing for the appellants. It was really the learned Public Prosecutor who invited our attention to the fact that the conviction of the 2nd accused under Section 139 cannot stand. This was very fair on the part of the learned Public Prosecutor. What he points out is that the unlawful assembly gathered and developed into a mob of rioters with the object of rescuing the 2nd accused from the custody of the Police officers who had effected his arrest. It was the right of the 2nd accused in the hands of the Police and his cry for assistance that led to the formation of the unlawful assembly which subsequently developed into a riot. The 2nd accused was not a member of that assembly and consequently merely because their object was to rescue the 2nd accused from the custody of the Police Officer who had arrested him, he cannot be made liable for rioting. The conviction of the 2nd accused under Section 139 of the Travancore Penal Code is therefore not correct.
The conviction under Section 139 of the Travancore Penal Code and the punishment of one year's rigorous imprisonment awarded therefor are set aside. But there is ample evidence to support the convictions and sentences under Sections 221 and 332 of the Travancore Penal Code, although the liability under the latter section cannot be said to be constructive liability since he was not a member of the unlawful assembly. It is direct liability that was incurred by him. The convictions and sentences under these sections are confirmed. This appeal is allowed to this extent.
14. It would be convenient at this stage to deal with certain other questions of law raised in the arguments of the appellants' learned Counsel before disposing of the remaining appeals. One of the points raised in the supplementary grounds of appeal is that the charge is defective. We have gone through the charge. The only defect in it is that it is verbose and too elaborate. But it cannot be said that any of the allegations made against the accused persons is not disclosed in the charge or that the accused persons are likely to have been misled by any defect in the charge. All the necessary particulars that are required for putting the accused on notice of the case against them are to be found in the charge. Therefore, there is no substance in this contention.
15. The next point urged is with reference to the requirement of Section 342 of the Criminal Procedure Code according to which after the evidence for the prosecution was closed it is incumbent upon the court to ask questions to the accused to enable him to explain away the circumstances appearing in evidence against him. There is no doubt that elaborate questions were not put to the accused drawing the attention of each one of them to all that was disclosed in the evidence for the prosecution. But one has got to remember that the defence of the accused persons is a total denial of their presence on the occasion and denial that they committed any of the acts mentioned by the prosecution. In view of these circumstances we are not prepared to say that the questions that were put to the accused under Section 342 of the Indian Code of Criminal Procedure are defective or are not sufficient.
Learned Counsel for the appellants bases his arguments on the recent decision of the Supreme Court reported in Tara Singh v. The State (1951) 2 Mad L.J. 291. There were material errors in the case which their Lordships were dealing with and that was the reason why a retrial was ordered. In the leading judgment in the case it is stated as follows with regard to the failure to comply with the provisions of Section 342:
I do not suggest that every error or omission in this behalf would necessarily Vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the decree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, disregard of the provisions of Section 342, Criminal Procedure Code, is so gross in this case that I feel there is great likelihood of prejudice.
The learned Judges go on to state that this was not the only error in the case in question and the other mistakes are narrated subsequently.
It will be seen that reference was made in - the judgment to an earlier Privy Council case which was regarded as authority on the point. That is the case of 'Dwarakanath Varma v. Emperor reported in 1933, 64 Mad L.J. 466 : A.I.R. 1933 P C 124 at 130. There the defect consisted in an omission to put an important question relating to the medical certificate that was granted by a witness who was charged with perjury. Without giving the accused an opportunity of explaining certain scientific facts observed in the body of the victim, the court told the jury that the 'absence of blood in the body cavity was a vital point'. Their Lordships say that if this was the position it was incumbent upon the court to call the accused's attention to this point and ask for explanation under Section 342 of the Code of Criminal Procedure, There again it was not laid down that any defect in observing the provisions of Section 342 would vitiate the trial.
Our attention has been drawn to the questions put in the present case and we are not satisfied that there is any material error or omission in putting these questions or that prejudice has been occasioned or is likely to have been occasioned by any omission. In the first place there is no material disregard of the provisions of Section 342 and it can certainly not be said that there was gross disregard which is likely to occasion prejudice. There is therefore no substance in this contention either.
The next point urged is connected with the provisions of Section 71 of the Indian Penal Code. This section prescribes the limit of punishment for offences made up of several parts which by themselves also are offences under the Code. The contention of the learned Counsel for the appellants is that where there is a conviction for being a member of an unlawful assembly some members of which have committed offences in the prosecution of the common object of the assembly, the person who is made constructively liable for such offences cannot be punished for rioting as well for committing such offences constructively. On this point there has been a divergence of opinion in India. The High Courts of Calcutta, Patna and Madras have taken one view while the High Court of Bombay, Allahabad and Bangoon have taken a contrary view. The difference of opinion relates only to cases in which a person is sought to be made liable constructively for an offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly.
The view taken by the High Courts mentioned in the first category is that separate sentences passed upon persons for rioting and grievous hurt are not legal where it is found that such persons did not commit these offences individually but were guilty under Section 149 of the Penal Code, See Nilmony Poddar v. Queen Empress 16 Cal 442. In that case a Pull Bench of the Calcutta High Court took the view that separate sentences passed upon persons for the offences of rioting and grievous hurt are not legal where it is found that such persons individually did not commit any act which amounted to voluntarily causing hurt but were guilty of that offence under Section 149 of the Indian Penal Code. The earlier decision in Empress v. Ram Partab 6 All 121 was approved. It will be seen that the decision refers only to cases where constructive liability for grievous hurt is attributed to a person who is a member of an unlawful assembly which has been found to be guilty of rioting. If it is a case of grievous hurt caused individually by the accused concerned, then the decision will not apply and separate sentences can be passed.
The Judicial Committee of the Privy Council in Barendra Kumar Ghosh v. Emperor 52 Ind App 40 (PC) took the view that Section 149 creates a specific offence but at the same time agreed with the view expressed by the Calcutta High Court in 'Nilmony Poddar's' case mentioned above. The Madras High Court has adopted the same view as the Calcutta High Court in the case of Krishna Ayyar v. Emperor 1918 Mad W N 526 : A.I.R. 1919 Mad 353. After considering the divergent views expressed by the Calcutta and Bombay High Courts, the Madras High Court held that separate sentences under Section 149 or any other sentence passed for constructive liability incurred by the accused is illegal under the first paragraph of Section 71 even though the sentences are directed to run concurrently. The Patna High Court in the case of Paltu Singh v. Emperor (1918) 3 Pat 1 J 641: A. I. R. 1918 Pat 227 has adopted the view of the Calcutta High Court.
The Nagpur High Court in the case reported in Baldesingh v. Emperor A.I.R. 1940 Nag. 120 held that under Section 71 of the Indian Penal Code separate sentences for offences under Sections 148 and 325 read with Section 149 cannot be passed against the members of an unlawful assembly except against a particular member who actually caused grievous hurt. The Bombay High Court on the other hand has taken a different view in the Full Bench decision reported in Queen Empress v. Bana Punja 17 Bom 260. It was held that where an accused is convicted of rioting and constructive liability for hurt it is not illegal to pass two sentences for the two offences of rioting and for causing hurt provided the total punishment does not exceed the maximum punishment which the court might award for any one of the offences. It will be seen that this decision of the Bombay High Court was prior to the decision of the Privy Council in Barendra Kumar Gosh's Case in which their Lordships adopted the view that Section 149 creates a specific offence.
The decisions of the Allahabad High Court on this question do not seem to be uniform. (See, 6 All 121 the Full Bench decision in Queen Empress v. Ram Sarup 7 All 757, Queen Empress v. Bisheshar 9 All 645, Queen Empress v. Wazir Jan 10 All, 58 and Dharamdeo Singh v. Emperor 14 AIL 1 J 738. The Rangoon High Court had adopted the view expressed by the Bombay High Court in Nga Son Min v. Emperor AIR 1924 Rang 291. On a consideration of those divergent views we are inclined to follow the view adopted by the Calcutta and Madras High Courts.
In our judgment where a member of an unlawful assembly or of an assembly guilty of rioting incurs constructive liability for a distinct offence committed by one of the members of the assembly it will not be proper to pass separate sentences for rioting and for the offence for which constructive liability was incurred by the accused. If, on the other hand, it is not a case of constructive liability but is a case where a person has been convicted of rioting and also of a distinct offence committed by him there can be separate convictions under Section 149 and the distinct offence committed by the accused concerned and separate sentences also can be passed. In taking this view, we are following the decision of the Judicial Committee of the Privy Council in Barendra Kumar Ghosh's Case that Section 149 creates a specific offence.
16. Having dealt with the questions of law raised on behalf of the appellants which are relevant in dealing with the cases of the remaining accused we shall proceed to deal in the first instance with the cases of three of the accused persons whose convictions we are not able to uphold. The first of these is accused No. 6 who is the appellant in Crl. Appl. No. 74 of 1951. His name is George. But in the first information report his name is shown as Palakkulangarayil P. Varkey. There is no direct act of aggression alleged to have been committed by this man. He has been convicted on the ground that he has incurred constructive liability by remaining in the assembly after it has become unlawful and after it had developed into a riotous mob. There seems to be a reasonable doubt as to the identity of this accused especially in view of the fact that P.W. 23 mentions this accused person's name as George and not as Varkey. On considering the evidence which has been accepted by the learned trial Judge, we are incline* to hold that there is a reasonable doubt as to whether this accused person really was a member of that unlawful assembly. Giving him the benefit of the doubt, we allow Crl. App. No. 74/1951, set aside his conviction and sentence and acquit him. Cancel bail bond.
17. There are two other accused persons whose convictions also we are not inclined to uphold. These are accused No. 7, Eathose, who is the appellant in Crl. App. No. 75/1951 and accused No. 14 who is the appellant in Crl. App. No. 82/1951. The evidence of the witnesses called for the prosecution is to the effect that these two accused persons were not armed when they were seen as members of the assembly. P.Ws. 1 to 4 and 7 to 12 depose against the 7th accused and P.Ws. 1 to 4, and 7, 9, 11 and 12 speak about the 14th accused. There is a reasonable doubt as to whether they were not mere spectators who were watching the exciting events that took place on the date of occurrence. We are not prepared to accept the evidence of P.W. 2 that the 7th accused beat him with his bare hand.
It is not possible in a big crowd to watch one of the accused persons using his bare hand for beating the witness in question. In these circumstances we hold that it has not been satisfactorily established that these two accused persons (A. 7 and A. 14) were actually members of the unlawful assembly and not mere spectators. Giving them also the benefit of the doubt, we allow Crl. App. No. 75/1951 and Crl. App. No 82/51 and set aside the convictions and sentences passed upon the 7th and the 14th accused. Cancel their bail bonds.
18. The case against the remaining accused Will now be dealt with seriatim: Accused No. 3 is the appellant in Crl. App. No. 72/1951. P.Ws. 1 to 5 and 7 to 12 speak about the criminal acts done by this accused person. There is no reason why their evidence should be discarded or disbelieved. The incidents took place in the month of Karkatakom (July-August) at about 6-45 P.M. There is evidence to show that there was a slight drizzle at the time of the occurrence. It cannot be a heavy shower because if there was a heavy shower, the meeting called by the communist party would not have been held. The witnesses who are dependable refer to a slight shower and according to them there was sufficient light to see what was happening. There is no reason why the evidence of all these witnesses who have definitely deposed against the 3rd accused should be brushed aside. We see therefore no reason to interfere with the conviction of this accused person.
With regard to the sentence, however in the view that we have taken about passing sentence for offence for which liability is incurred constructively by an accused person who is already convicted under Section 140 for taking' part in the riot, the punishments awarded separately by the court below for such offences cannot be upheld. The separate sentences passed under Sections 222 and 332 are, therefore, set aside and the sentence of one year's rigorous imprisonment passed in respect of the offences under Section 140 of the Travancore Penal Code is confirmed. The appeal is allowed to this extent.
19. The 4th accused is the appellant in Crl. App. No. 73 of 1951. The case against him has been spoken to by P.Ws, 1, 2, 4 and 8 to 12. Their evidence has been accepted by the learned trial Judge. We see no reason to disagree with him. There is, therefore no ground for interfering with the conviction of the 4th accused. For reasons already given in the case against the 3rd accused, the separate sentence passed under Sections 222 and 332 of the Travancore Penal Code are set aside and the' sentence under Section 140 confirmed.
20. The 8th accused is the appellant in Crl. App. No. 76/1951. Pws. 1, 2, 8, 9, 10 and 12 have deposed against him. Their evidence was accepted by the learned trial Judge. We see no reason to disagree with the conclusion reached by the trial court. For reasons already given in the case against the 3rd accused the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code are set aside. Cri. App. No. 76 of 1951 is allowed to this extent alone.
21. The 9th accused is the appellant in Crl. App. No. 77/51. P.Ws. 1 to 4 and 7 to 12 have given evidence against him. The evidence of these witnesses has been accepted by the trial Court. We see no reason to disagree with the decision of the trial court. But for the reasons already given in the case against the 3rd accused, the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code are set aside and to this extent this appeal is allowed.
22. Cri. App. No. 78/1951 : Regarding the 10th accused appellant in Cri. App. No. 78/1951 the learned Public Prosecutor reports when this judgment is being pronounced that the court may act under the provisions of Section 350 of the Travancore Code of Criminal Procedure and dispose of the appeal in view Of the evidence recorded at the trial and the findings of the learned Judge. We are satisfied that there was sufficient material for convicting the 10th accused. His appeal must accordingly be dismissed. Cancel all bail bonds.
23. The 11th accused is the appellant in Crl. App. No. 29/51. P.Ws. 1, 2, 4 and 6 to 12 are the witnesses who speak against this accused person. We see no reason to brush aside their evidence to disagree with the conclusion reached by the trial court. But for the reasons already given in the case against the 3rd accused the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code are set aside and to this extent this appeal is allowed.
24. The 12th accused is the appellant in Crl. App, No. 80/51. P.Ws. 1, 2, 4 and 10 to 12 have deposed against this accused person. There is no ground for discrediting their testimony. We therefore, accept their evidence and dismiss this appeal except with regard to the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code which we set aside for the reasons already given in the case against the 3rd accused.
25. The 13th accused is the appellant in Cri. App. No. 81/1951. P. Ws. 1, 2, 4 and 8 to 11 are the witnesses who have deposed against him. There is no reason why their evidence should not be accepted. We, therefore, see no ground for interference with the judgment of the learned trial Judge except with regard to the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code which we set aside for the reasons already given in the case against the 3rd accused. To this extent the appeal is. allowed.
26. The 16th accused is the appellant in Crl. App. No. 83/1951 P.Ws. 1, 2, 5 and 11 and 12 are the prosecution witnesses who have deposed against him. P.W. 52 (sic) was beaten by this accused person. We therefore, see no reason to disbelieve the evidence of these witnesses. But for the reasons already given in the case against the 3rd accused the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code are set aside and to this extent this appeal is allowed.
27. The 18th accused is the appellant in Cri. Appeal No. 84/51. P.Ws. 1, 2, 4 and 8 to 12 are the witnesses who have deposed against this accused person. There is no reason for discrediting their testimony. We, therefore, dismiss this appeal except with regard to the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code which we set aside for the reasons already given in the case against the 3rd accused.
28. The 19th accused is the appellant in Criminal appeal No. 85/1951. P.Ws. 1, 2, 4 and 8 to 12 have deposed against him. Their testimony there is no reason to discredit. We therefore confirm the conviction and sentence passed upon this accused except with regard to the separate sentences awarded under Sections 222 and 332 of the Travancore Penal Code which we set aside for the reasons already given in the case against the third accused.
29. The 20th accused is the appellant in Criminal Appeal No. 86/1951. P.Ws. 1 to 4, 7, 9 and 10 have deposed against him and there is also the evidence of P.W. 15 who says that he saw him running away after the occurrence. Believing the evidence of these witnesses we refuse to interfere with the conviction of this accused. But the separate sentences passed under Sections 222 and 332 of the Travancore Penal Code are set aside for the reasons already given in the case against the third accused. The appeal is allowed to this extent.