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In Re: Balam Pateyya and ors. - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtChennai
Decided On
Reported inAIR1941Mad339
AppellantIn Re: Balam Pateyya and ors.
Excerpt:
- - the strike is formed about one and a half months ago and is getting from bad to worse day by day. the sub-inspector, tanuku, enquired into this and tried his best to arrange a compromise but in vain. the kammas are rich and obstinate. the edigas are poor but desperate. it is not known whether the members of the jury were furnished with a copy of the counts or whether a translation was furnished to them, and one can very well imagine the state in which their minds were at the end of the charge, and the clearest indication of that state is furnished by the inconsistency between the verdict of the jury and the opinions of the same gentlemen as assessors in respect to the same occurrence backed by the same evidence. it is the exceptional cases which contemplate joint trials in respect.....pandrang row, j.1. this is an appeal from the judgment of the sessions judge of 'west godavari dated 7th may 1938 in s.c. no. 6 of 1988 on his file. the case related to certain occurrences which took place in the village of mukkumala on 15th august 1937. the trial in the sessions court began only on 2lst march 1938 and went on for nearly a month and a half. there were 24 accused and the number of witnesses examined for the prosecution were 51 and a fairly large number of exhibits were filed on both sides. to add to the complexity and the difficulty which the case must have presented to the jury who in respect of some of the counts acted as assessors and also to the trial judge, the charges against the accused were on no less than 66 counts and the occurrences related to about fifteen.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the judgment of the Sessions Judge of 'West Godavari dated 7th May 1938 in S.C. No. 6 of 1988 on his file. The case related to certain occurrences which took place in the village of Mukkumala on 15th August 1937. The trial in the Sessions Court began only on 2lst March 1938 and went on for nearly a month and a half. There were 24 accused and the number of witnesses examined for the prosecution were 51 and a fairly large number of exhibits were filed on both sides. To add to the complexity and the difficulty which the case must have presented to the jury who in respect of some of the counts acted as assessors and also to the trial Judge, the charges against the accused were on no less than 66 counts and the occurrences related to about fifteen different places, the first occurrence being at the hamlet of the Edigas in the village known as the Edigagudem, the next being the gingelly fields near it, the third occurrence being between the washerman's hut and Edigagudam and the remaining occurrences having taken place in various houses belonging to the Kammas in the village, the houses being twelve in number. The first count was in respect of rioting with deadly weapons against all the twenty-four accused; counts 2 to 7 related to offences of causing grievous hurt with dangerous weapons, i.e., offences under Section 326, Penal Code, some of the counts being against a few of the accused and the others being against the rest constructively by the operation of Section 149, Penal Code; counts 8 to 29 related to hurt with a dangerous weapon, an offence under Section 324, Penal Code, some of the counts being under that section alone against some of the accused and the others being against the remaining accused constructively by the operation of Section 149, Penal Code; counts 30 to 44 were in respect of the offence of mischief punishable under Section 440, Penal Code, against all the accused in the various houses in which mischief is said to have been committed. So far as this offence is concerned, it must be mentioned that there was no charge under Section 149, Penal Code. Counts 45 to 56 were counts relating to the offence of housebreaking punishable under Section 455, Penal Code, against all the accused in the respective houses referred to in the counts; counts 57 to 62 related to the offences of dacoity punishable Under Section 398, Penal Code, against all the accused in respect of the various houses referred to in the counts; the remaining four counts 68 to 66 related to the offence of theft in a building against all the accused in the respective houses referred to in the counts. Counts 45 to 66 were tried with the aid of a jury and the jurymen acted as assessors in respect of the other charges which were triable with the aid of assessors.

2. The entire trial was held jointly and there was no separate trial in respect of any counts. In the result thirteen out of the twenty four accused were convicted on various counts - six Edigas and seven Malas, and these are the appellants in this appeal. Most of the appellants have been convicted under a very large number of counts ranging from 18 to 24. The sentences have however been ordered to run concurrently in all cases and the longest sentence was only three years on the ground as stated in the judgment that though the offences were grave, the rioters had behaved with moderation and they had been on remand for several months and also because most of the offences were practically parts of one transaction. This observation of the learned Judge that most of the offences were practically parts of one transaction shows that the learned Judge himself was not quite sure that all the offences were actually parts of the same transaction. It is obvious that unless all the offences were parts of the same transaction, there could have been no joint trial held according to law in respect of all the offences. This point will have to be considered at greater length later on after giving a brief description of the facts of the case.

3. It is not disputed that there had been trouble between the Kamma community on the one hand and the Ediga and Mala communities on the other in the village for some time before the occurrence. The trouble was mainly due to a dispute about wages, the Kammas being generally speaking, employers, and the Edigas and the Malas being generally labourers employed by the Kammas. A fairly accurate account of the state of affairs about a week or so before the occurrence is to be found in the special report sent by the Sub-Inspector to the joint Magistrate (Ex. B) on 8th August 1937. As observed by him, the fight by the labourers against their employers had already begun and there were complaints made to the authorities by both parties. The Sub-Inspector warned both parties and asked for instructions. The Sub-divisional Magistrate appears to have been of the opinion that the state of affairs did not warrant any action on his part. To this effect he made an endorsement on the report on 13th August 1937. On the same date the Inspector of Police appears to have sent a report to the joint Magistrate (Ex. E-1) praying for action to be taken under Section 107, Criminal P.C., against ten members each of the two parties on the following grounds:

The strike is formed about one and a half months ago and is getting from bad to worse day by day. The Sub-Inspector, Tanuku, enquired into this and tried his best to arrange a compromise but in vain. The Kammas are rich and obstinate. The Edigas are poor but desperate. Their feelings are highly strained and they are trying to avenge each other. Even in my enquiry both parties abused each other and the situation is serious. Unless both parties are bound over they are determined to commit a breach of the peace.

4. Unfortunately, for reasons which are not discoverable on the record, the joint Magistrate does not appear to have taken any action in the matter as requested by the Inspector of Police, and two days after the date of the report the trouble came to a head, and there was undoubtedly a serious breach of the peace in the village owing to the clash between the warring communities in the village. There can be no doubt that the beginning of the clash was provoked by the unwarranted action of some of the Kamma community in going to the hamlet of the Edigas and searching the house of one of the Edigas on the pretext that certain hay had been stolen and was secreted in the house. No attempt has been made before me on behalf of the Crown to justify this action on the part of the village Munsif and there is no doubt that it was this raid into the house of one of the Edigas by the village Munsif and some of the Kammas that was the immediate cause of the clash. The clash was thus sudden and was not the result of any previously concerted action on the part of the appellants, and it is impossible to say that the events that took place at Edigagudam and even the events that took place in the gingelly fields immediately afterwards in which two or three people were beaten are parts of the same transaction as the events that followed after a large number of Edigas and Malas had collected subsequent to these events and made a rush to the village in which the Kamma houses were situated.

5. There was in my opinion no justification for regarding all the events that took place on that day in the village as parts of the same transaction, and it was not right to try the cases in respect of all these occurrences in one trial. The danger of the joint) trial in this case is indeed apparent on the most cursory examination of the judgment itself. The large number of the counts on which the trial was held led to a lengthy trial spread over nearly a month and a half and must have necessarily confused the minds of the jury the members of which also acted as assessors in respect of some of the counts. The result of such confusion is apparent, for it is clear from a mere perusal of the verdict of the jury on some counts and the opinions of the jurymen as assessors in respect of the connected counts arising out of the same occurrences, that they are absolutely inconsistent. To put it in other words, even where the occurrence is one and the same in the sense that it took place in the same house and the evidence regarding the occurrence was the same but different offences were committed, for instance, hurt, mischief and housebreaking and dacoity, the members of the jury gave a verdict which is inconsistent with their opinions as assessors in respect of the counts on which the trial was with the aid of assessors. This is absolutely inexplicable except on the supposition that their minds were so confused by reason of the length of the trial, the volume of the evidence and, if one may say so without meaning any disrespect to the learned Sessions Judge, the very lengthy and not very clear charge which he delivered to the jury. The summing up appears to have lasted from 11 in the forenoon till about 7 in the evening, an ordeal which most people would find it difficult to stand without some untoward reaction in their minds.

6. It is very difficult in a case where the trial has lasted for more than a month and a number of witnesses were examined, for the members of the jury to carry in their minds any clear idea either of the demeanour of the witnesses or of the particular charges to which the evidence of a particular witness relates and this inability to remember is not removed by the long charge, a charge so long that before one got to the end of it, one must necessarily have forgotten something of the beginning or the middle. The difficulty was increased by reason of the fact that the ordinary precaution of stating to the jury the evidence as against each of the accused was not followed in this case. The evidence was undoubtedly marshalled and ably marshalled, by the learned Judge as regards each particular count or connected sets of counts, but unfortunately no attempt was made either at the beginning or at the end to indicate to the jury what was the evidence against each particular accused and in respect of each particular count. It is not known whether the members of the jury were furnished with a copy of the counts or whether a translation was furnished to them, and one can very well imagine the state in which their minds were at the end of the charge, and the clearest indication of that state is furnished by the inconsistency between the verdict of the jury and the opinions of the same gentlemen as assessors in respect to the same occurrence backed by the same evidence.

7. A joint trial in respect of very large number of counts is very much to be deprecated even though the law may not prohibit it. It is one thing to say that a joint trial was legal but quite another to say that it was proper in the circumstances. No doubt, joint trials would be legal in certain circumstances, but the general rule is that there should be a separate trial in respect of every separate charge. It is the exceptional cases which contemplate joint trials in respect of a number of charges, and there is no rule of law which compels a Judge to hold a joint trial. Even where a joint trial is permitted by law, it is open to him, and in a case like this it would have been expedient also to have held separate trials. The usual course adopted in such circumstances is for the Public Prosecutor to be asked to select what he considers to be the best case from his point of view and to try that case first and leave the other charges to be tried if necessary later on after the result of the first trial is known. This practice is in accordance with common sense and does justice to the accused and does not result in the confusion that we find in the present case as a result of the joint trial held in respect of so many as 66 counts.

8. After going through the charge to the jury, I am of opinion that it has not been fair to the accused and that it contains several misdirections. There has also been an improper exclusion of relevant evidence which was attempted to be let in on behalf of the accused. The learned Judge did not lay sufficient stress oh the fact that all the witnesses for the prosecution were interested, when he was charging the jury as to the evidence on particular counts. I wish to mention an instance or two as examples, as there are several such instances to be found in the charge. For instance, in dealing with counts 33, 47 and 60 in paras. 65 to 67 of the charge, the learned Judge first of all points out that the witnesses who speak to those counts are P.Ws. 18 and 47. Towards the end of para. 67 he points out that P.W. 47 does not speak with any personal knowledge as to what happened. It was thus clear that there was only the evidence of P.W. 18 in respect of these counts. He has pointed out at the same time that according to the evidence of P.W. 18 the events in the house were witnessed not only by himself but also by his wife, his daughter, his brother's wife and his brother's daughter who were in the house at the time of the occurrence. None of these have been examined. The witness also spoke to the commission of dacoity in his house, the dacoity consisting in the fact that a sum of Rs. 100 is said to have been demanded by the accused under threats and that actually he was beaten thereafter. Fortunately for the accused so far as the count of dacoity was concerned, the learned Public Prosecutor stated that the accused were entitled to the benefit of the doubt; otherwise I should not have been surprised if the jury had returned a verdict of guilty in respect of this count also.

9. The verdict of the jury was (by a majority of one) a verdict of guilty in respect of count 47 and in respect of count 33 they gave their opinions as assessors, as follows : four of them to the effect that none of the accused was guilty and one to the effect that accused 6 and 18 were guilty. This verdict and these opinions are, in my opinion, directly attributable to the failure on the part of the learned Judge to have warned the jury against acting on the uncorroborated testimony of an interested witness like P.W. 18, whose evidence about a part of the same occurrence namely the dacoity, was such that the Crown itself was prepared to advise that the accused were entitled to the benefit of the doubt. On the same evidence, it is impossible to justify the verdict of guilty by 3 to 2, while in respect of another part of the same occurrence backed by the same evidence the majority was 4 to 1 to the effect that none of the accused was guilty. It is impossible to my mind to account for these extraordinary aberrations, so to speak, of judicial opinion delivered by members of the jury in their dual capacity, except on the ground that they did not know what they were doing because of the length of the trial and the length of the charge and the complexity of the case occasioned by the joint trial on a large number of counts. Such a trial not only prejudices the accused but also works havoc in the minds of the jury and makes it very difficult if not impossible for them to express any rational opinion on the matters remitted to them for judgment. On the other hand, instead of warning the jury in respect of the remaining counts namely 83 and 47 - count 60 having been practically abandoned by the Grown - that it was not safe to convict in view of the interestedness of the witness and the absence of corroboration, the learned Judge thought it fit to dismiss the argument to this effect by the accused's counsel in the following words in para. 67 of his judgment:

One of the arguments of accuseds' counsel was that in every case in which there was no corroboration, it would be safer for you to reject the testimony. Such a condemnation of uncorroborated testimony is not correct. There is no principle which debars you as judges of fact from relying upon such testimony. No particular quantum of proof is required to prove any fact. In order to hold any fact proved you require only such evidence as would satisfy a reasonable man that the fact is true.

10. While these observations cannot be said to be erroneous in law, they were undoubtedly not calculated to lead to a correct or just decision in a case of this kind. This was not a case in which these observations should have been made to the jury, which appear to have encouraged instead of discouraging them to accept the uncorroborated testimony, of an interested person while the prosecution had given no reason for not examining a number of other witnesses who were available at least for the purpose of corroboration though they were equally interested. Similar observations can be made in regard to a number of other counts dealt with in the charge of the learned Judge. It is not as if any particular observation was not in strict accordance with law or with the evidence in the case, but throughout it appears that wrong guidance was given to the jury by the learned Judge; where caution ought to have been imposed on the jury encouragement was given to them to accept evidence which was obviously to be treated with considerable caution. According to the learned Judge the parties were at bitter enmity and so far as the question of motive was concerned, either of the parties might have started the riot. When such was the position, it was obviously incumbent on the learned Judge to have warned the jury not once, but more than once wherever, the evidence was very scanty and lacked corroboration, where corroboration was available, to treat the uncorroborated evidence offered on behalf of the Crown with caution and to accept it only after a careful examination thereof. In several places the learned Judge himself remarks that even as regards the material portions of the prosecution story the truth had not been placed before the Court by the prosecution. For instance, in para. 95 of his judgment, he says that he has no hesitation in discrediting the story related by the, prosecution as regards theft of hay. He did not accept the broad case for the prosecution that there was an unlawful assembly, of the Malas and Edigas from the very beginning whose common object was not only to beat the members of the Kamma community but also to invade their houses, break the doors and windows, cause hurt to, the inmates and to commit theft, dacoity, etc. So far as the first part of the occurrence is concerned, he appears to have come to the conclusion in para. 95 of his judgment that there must have been a free fight between the Malas and Edigas on the one hand and the Kammas on the other in Edigagudam in the course of which both parties sustained injuries, and that it was only thereafter that the Edigas and Malas gathered in large numbers and marched into the, village and committed several acts of vandalism. Vandalism is one thing and dacoity and theft are quite different, and the learned Judge failed to point out the difference between vandalism and dacoity or theft to the jury when he asked them to give their verdict on counts relating to dacoity and theft.

11. In several places in his judgment, it is very clear that a good portion of the prosecution evidence was disbelieved by the learned Judge. He concedes in para. 101 of his judgment that all the material prosecution witnesses are Kammas and that it was possible for the prosecution to obtain the testimony of disinterested witnesses belonging to Brahmin and Vysia communities in the village. He says that while this is a ground for scrutinizing the evidence with care, it is not proper to condemn the evidence as a whole. The charge delivered by the learned Judge does not however show that the jury were asked to scrutinize the evidence with care, and if there was any scrutiny, the result of the scrutiny by the jury and by the Judge shows that the scrutiny must have been exceedingly, slipshod. Otherwise there would, not have been the numerous inconsistencies that are to be found between the opinions of the jury as jurymen and as assessors, and also between what the Judge stated in his judgment and the convictions recorded by him. As an instance of the latter, I might mention that while in para. 142 the learned Judge has recorded the opinion that there was no identification of any of the accused as regards count 43, he has actually convicted a number of accused under that count. He has moreover convicted various accused persons under Sections 440 and 149, Penal Code, while as a matter of fact there was no charge under Section 149 in respect of any of the counts relating to Section 440, Penal Code. It would also appear that the judgment and the finding are inconsistent so far as count 42 is concerned.

12. I shall go on to indicate briefly the various other defects which are to be found in the charge. The learned Judge omitted to tell the jury that there was no mention of the commission of any house breaking or dacoity in the first report of the occurrence Ex. P. He also omitted to mention to the jury that even in the charge sheet only one dacoity was mentioned whereas in the evidence no less than six dacoities were spoken to. The result of this is seen in the fact that in the case of two dacoities (counts 57 and 58) the jury returned a verdict of guilty by a majority. The inconsistencies between the verdict of the jury as a jury and the opinions of the members of the jury as assessors are to be seen in the following instance. On counts 57 and 58 by a majority of 3 to 2 the jury returned a verdict of guilty against accused 1 to 4, 7, 13, 14, 17 and 18. On the connected count 34, that is to say; the count relating to the occurrence in the same place regarding which the evidence is the same, the opinion of the assessors was in the case of two not guilty and in the case of two other assessors, that accused 1 to 3 and 13 were guilty and in the case of the remaining assessor that accused 1 to 3 were guilty. These opinions and the verdict are not reconcilable. In respect of these very counts also, the learned Judge omitted to direct the jury that the accused implicated by the witnesses were only accused 1 to 3, 13, 14 and 17. If this had been pointed out, it is not likely that the jury would have returned. a verdict even by a majority against accused 4, 7 and 18 who were not implicated by the witness in the dacoity.

13. Then again in respect of count 45 which relates to house-breaking, the jury found by a majority of 3 to 2 that all the appellants were guilty, while in respect of the same incident dealt with in count 81 which relates to mischief three out of the five assessors expressed the opinion that none of the accused was guilty, the evidence being the same. In respect of the same count 45 the only eyewitness who speaks to it, namely P.W. 41, mentioned only accused 1, 3, 4, 14 to 16, but this was not specifically mentioned to the jury in the charge. The result was that accused 15 and 16 who were mentioned by the sole witness were acquitted, whereas, several others who were not mentioned, namely 2, 7, 13, 17 and 18, were found guilty by the jury. This again is an inconsistency which deprives, in my judgment, the verdict of the jury of any real value as a judicial verdict. It is impossible really to treat a verdict of this kind with any respect when the same gentlemen in their capacity as assessors on the same evidence have expressed absolutely different and inconsistent opinions. Verdicts of this kind were really not entitled to acceptance, and unless the learned Judge who tried the case was himself in the same boat so to speak, with the jury, it is impossible to account for his acceptance of such verdicts in the face of the opinions of the jurymen as assessors given at the same time. A mere comparison of the opinions with the verdicts would have indicated to him the necessity of expressing his disagreement with the verdict of the jury and making a reference to the High Court. The acceptance of the verdicts in these circumstances shows that there has been a disregard of the duty of the Judge to consider the verdicts carefully before he expresses his agreement with them or decides not to express his disagreement. Instances of this kind may be multiplied, and they are all found in the memorandum of appeal: vide particularly paras. 13, 14, 15 and 16 of the grounds of appeal. I may here mention that the learned Public Prosecutor has not attempted any explanation of these inconsistencies when the appeal was argued before me and indeed no explanation seems to be possible. The inconsistencies are so gross and so glaring that the only explanation would be though it would hardly be a satisfactory explanation that all those who were connected with the trial were so confused at the end of it that they did not know what they were doing. Such an explanation would certainly not be very useful from the point of view of the prosecution. I come next to the contention that relevant evidence was excluded by the learned Judge during the trial. In the case of P.Ws. 23 and 24 there is specific proof that certain evidence was excluded : see pp. 96 and lop of the printed record. P.W. 23 who speaks to the commission of various offences in his house in respect of which convictions have been recorded, was asked in cross examination

when you went and reported to the Sub-Inspector at 1 o'clock you did not mention the names of any of the culprits

14. This obviously relevant and important question was objected to and was actually disallowed by the learned Judge. It must be remembered in this connection that in his evidence in the case P.W. 23 had implicated a number of accused and the case for the defence was that as a matter of fact the witness had not mentioned any of these accused to the police when questioned immediately after the occurrence. It was certainly relevant and important to elicit the fact whether as a matter of fact the witness had mentioned the names of any of the culprits to the Sub-Inspector at 1 o'clock that is to say, almost immediately after the occurrence. There was in my opinion no justification for exclusion of evidence of this kind; the question was overruled and the evidence was excluded by the learned Judge. A somewhat similar question was put to P.W. 24, namely 'Did you tell the Sub-Inspector that your brother paid Rs. 60 and your wife paid Rs. 15?' This was in connection with the allegation made in the evidence of the witness that these sums of money had been extorted from these people under threat of instant hurt. It is difficult to understand the reason for the objections to a question like this. Section 162, Criminal P.C., does not certainly stand in the way of such evidence being given. Apparently, by reason of the objection being sustained in reference to this question by the learned Judge, similar questions were not asked of the other witnesses for the prosecution. I may mention, however, in this connection that similar questions appear to have been asked of P.W. 27 and disallowed : vide p. 107 of the printed record. It is apparent, therefore, that there has been a serious exclusion of evidence which was perfectly relevant and which might have materially helped the defence in throwing doubt on the veracity of important prosecution witnesses.

15. I have said enough to show that the convictions of the appellants in this case cannot stand. There has been no proper trial; the trial that was held was not according to law; there was a wrongful exclusion of material evidence by wrongful disallowance of relevant and material questions which must have prejudiced the appellants' defence and there was throughout in the charge a failure to put points which were favourable to the accused before the jury. The judgment itself apart from the record of the case, clearly establishes the fact that in this case there has been no attempt to consider the case as against each of the accused, and the jury must have been considerably confused and misled by the defects in the charge. I am therefore of opinion that the appeal must be allowed. The convictions and the sentences in the appellants are hereby set aside and in view of the fact that the appellants have been in jail pending trial, some for six months or thereabouts and others for as long as ten months or so, it is in my opinion unnecessary to direct a retrial. Even otherwise I am of opinion after considering the evidence for myself that it is hopelessly lacking in quality and it is not likely that there would be a conviction if a retrial is held according to law. I therefore acquit the appellants and direct that the bail bonds executed by them be discharged.


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