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In Re: Mylapore Krishnasawmi Alias A. Krishnasawmi Sarma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.33
AppellantIn Re: Mylapore Krishnasawmi Alias A. Krishnasawmi Sarma
Cases ReferredE. v. Russell
Excerpt:
.....act (i of 1872), sections 159, 160--refreshing memory--admissibility of notes in evidence. - - under the rigid rules of the common law variances between the indictment and the evidence as to material averments were fatal whether they affected the merits or not, and lord cardigan was acquitted on an indictment for shooting at his opponent in a duel because the prosecution failed to prove the opponent's full name as set out in the indictment. 22 it would, i think, be best to set out the words which it is intended to prove, as nearly as possible, but, so long as the substance of the words is set out, i find nothing in our law that requires that the words set out should be proved verbatim et literatim; 5. then too section 225 appears to me to be expressly aimed..........conflict between the evidence for the prosecution and the evidence for the defence, and if the defence witnesses can be believed the accused is entitled to be acquitted. i am, however, unable to accept their evidence, because it seems to me clear that the defence witnesses who speak to this meeting, have one and all come forward with a manifestly false story as to an incident which happened at this meeting, and that they have done so for the purpose of screening the accused. it is admitted that an interruption took place and that an attempt was made to stop the meeting by 5th witness for the prosecution who cannot have been specially prejudiced against the accused and his cause as he was one of the persons in karur whose assistance the accused had been recommended to seek. so much is.....
Judgment:

1. In this case the accused was charged with committing offences under Sections 124-A and 153-A of the Indian Penal Code, on the 10th March 1908, and with committing similar offences and also offences under Section 505, Clauses (a) and (r), of the Indian Penal Code, on the 17th March 1908. The charges in respect of the 16th March were not proceeded with at the trial and the accused was tried and convicted of having committed offences under Sections 124-A and 153-A, Indian Penal Code, on the 17th March 1908, and also of an offence under Section 505, Indian Penal Code,

2. In the argument before me no objection was raised to the form of the charge, but as the questions as to the proper form of charge are discussed by the learned Judges who heard the appeal and as these questions are of general importance I think it necessary to deal with them. With regard to setting out the words in charges of this kind it was held in England by all the Judges advising the House of Lords In Sacheverell's case 15 St. Tr. 466 that in all prosecutions by indictment or information for crimes and misdemeanours by writing or speaking, the particular words which are supposed to be criminal ought to be expressly mentioned in the indictment of information. This, I take it, was only an application of the general rule which required the offence to be stated with certainty. The question whether it was necessary to prove that the precise words charged in the indictment were actually used was raised by Mr. (afterwards Sir Samuel) Romilly on the trial of John Binns in 1797 and after Mr. Spencer Perceval had argued for the Crown, that the mode of proof for which Mr. Romilly was contending Would make it absolutely impossible ever to obtain conviction, it was ruled by Mr. Justice Ashhurst that it was sufficient if the Words proved were the same in meaning though not the precise words charged. R. v. Binns 26 St. Tr. 614. A rather stricter rule appears to have been applied by Wilde, C.J., Parke, B., and Maule, J. in E. v. Russell 6 St. Tr. N.S. 723 : Cro. Jao. 407 at page 746 who whilst ruling that all the words set out in the indictment need not be proved, but only so many of them as are in themselves sufficient to constitute the crime, were of opinion that the words proved must be proved as laid in the indictment, as otherwise there would be a variance between the indictment; and the evidence. Under the rigid rules of the Common Law variances between the indictment and the evidence as to material averments were fatal whether they affected the merits or not, and Lord Cardigan was acquitted on an indictment for shooting at his opponent in a duel because the prosecution failed to prove the opponent's full name as set out in the indictment. As pointed out by Mr. Justice Stephen in the History of the Criminal Law, the Legislature has never attempted a thorough reform of the English rules of criminal pleading and has been content in 14 and 15 Victoria 100, to guard against some of the more obvious miscarriages resulting from their strict enforcement.

3. I have stated what I understand to be the state of the English authorities as to indictments for seditious words, but I agree with Mr. Justice Benson that we have no concern with them, because as respects charges we are governed in this country by the provisions of the Code of Criminal Procedure which are not, and do not purport to be, an exact reproduction of the English rules as to indictments, and indeed were expressly framed in such a manner as to give no room for merely technical objections not going to the merits of the case.

4. Under sect ion 221 (3) of the Code of Criminal Procedure, as the law does not give offences under Sections 124-A and 153-A any specific name, so much of the definition of the offence in list be stated as to give the accused notice of the matter with which he is charged. Then tinder Section 222 the charge must contain particulars as to the time and place of the alleged offence, and under Section 228 when the offence is such that the particulars mentioned in Sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose. Illustration (c) which is nearest to the present case is as follows: 'A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.' Similarly a charge under Section 124-A. or 153-A which did not contain particulars of the words alleged to have been used would, in my opinion, offend against the section as has been held by this Court recently In Re: Chidambaram Pillars case (1909) 1 Ind. Cas. 22 It would, I think, be best to set out the words which it is intended to prove, as nearly as possible, but, so long as the substance of the words is set out, I find nothing in our law that requires that the words set out should be proved verbatim et literatim; and if the charge is in English and the words uttered were in Tamil, I find nothing in our law requiring that the actual words should be set out in Tamil.

5. Then too Section 225 appears to me to be expressly aimed amongst other things at other objections on the ground of variance between the charge and the evidence [See illustration (b)] as it provides that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or such particulars shall be regarded at any stage as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. I am, therefore, of opinion that it is. enough if the substance of the words used is set out in the charge and that it is enough if the substance of the words proved to have been used is the same as that of the words set out in the charge.

6. To come now to the facts of the present case, the accused gave his age as 18 years, stated that he was a failed Matriculate' and described himself as a Swadeshi preacher. He further stated that he had been lecturing on home industries, and also abut boycotting foreign articles and about national education; but if the police reports of his speeches during his stay at Karur from March 14th to 20th are at all correct, he by no means confined himself to these topics, but seems to have taken an active part in the political agitation that was going on about that time. Up to the time of the accused's arrival in Karur Government had not sanctioned the institution of any prosecution for sedition, and as appears from the evidence and was observed by the Sessions Judge and Mr. Justice Benson, it does not appear that the notes of the accused's statements at Karur were taken with an immediate view to his prosecution or that the local police anticipated any. sanction to prosecute being given. What appears is that the authorities considered it necessary that they should be kept informed of what the accused and people like him Were saying in the districts, Accordingly he was kept under observation, and some of the Salem police accompanied him from Salem where he had been lecturing to Karur and that he was kept under observation by the Karur police who were instructed to take notes of his speeches and submit copies of them; and similar arrangements appear from the statements of the accused to have been made when he left Karur for Trichinopoly on the conclusion of his stay. The Inspector at Karur, defence 21st witness, did not consider the accused's speeches, of sufficient importance to attend himself, but left the duty to the station writer, 2nd witness for prosecution, and the Head Constable, 4th witness for prosecution. These observations as to the general attitude of the authorities and the local police appear to me to be material on the question whether the 2nd and 4th witnesses for prosecution had any motive for fabricating seditious utterances and putting them into the mouth of the accused as alleged for the defence. It should further be observed that the riots at Tinnevelly took place on the morning of the 13th March and that soldiers from a native regiment stationed at Trichinopoly were at once requisitioned for the purpose of quelling any further disturbances. These facts appear from the evidence to hare become known in Karur by the 17th, as they obviously must, seeing that Karur is a station on the south-west line between Salem and Erode.

7. Now as to what took place at the meeting on the 17th there is a direct conflict between the evidence for the prosecution and the evidence for the defence, and if the defence witnesses can be believed the accused is entitled to be acquitted. I am, however, unable to accept their evidence, because it seems to me clear that the defence witnesses who speak to this meeting, have one and all come forward with a manifestly false story as to an incident which happened at this meeting, and that they have done so for the purpose of screening the accused. It is admitted that an interruption took place and that an attempt was made to stop the meeting by 5th witness for the prosecution who cannot have been specially prejudiced against the accused and his cause as he was one of the persons in Karur whose assistance the accused had been recommended to seek. So much is common ground and the difference is as to what the accused said to provoke the interruption. According to the defence witnesses the interruption was provoked by some remarks of the accused us to the necessity for reducing military expenditure and spending more on Education. It appears to me quite incredible that the expression of such a trite and harmless sentiment could have led the 5th witness for prosecution to attempt to stop the meeting, or have led to the talk as to the arrest of the accused which the 2nd witness for defence speaks to, and I am unable to place any credit in witnesses who come forward with such a story.

8. Of course it is not enough to disbelieve the evidence for the defence. The Court must satisfy, itself that the evidence for the prosecution is such as may safely be acted on and is sufficient to establish the guilt of the accused.

9. The most serious utterances charged against the accused are that he referred to the destruction of public buildings in the recent riots and suggested that the people of Karur should act in the same manner and that he referred to the native troops and said 'Why should they not exert on behalf of the Swadeshi cause and to help our Mother, use their guns to shoot the white faces?' Now the 5th prosecution witness is positive that it was the suggested destruction of public buildings and shooting at the white faces that led him to interrupt the meeting and I see no reason to disbelieve him. It is true that in the Sessions Court he gives the words thus:

10. Natives who love their country are taken as Sepoys and are paid a small amount and they are trained to use guns. Why should not we, who have been trained in the use of guns, turn the guns upon the white faces and so obtain Swaraj.' But it appears to me that here ' we who have been trained in the use of the guns' must, having regard to the context, mean ' those of us who are sepoys' and not the audience who are debarred from the use of the guns under the Arms Act; and I see in his deposition in the lower Court, filed by the defence as Exhibit I, the witness in the lower Court when his memory was fresher gave the words as Why should not our Swadeshi low paid men turn their guns on the white faces and we usurp the Government?' In this he is corroborated not only by the police witnesses, 2nd and 4th witnesses for prosecution, but also by the 6th and 7th witnesses and by the 8th witness for the prosecution as to the destruction of the buildings-what followed he did not hear well-and also by prosecution witnesses Nos. 9 and 10. Prosecution 6th witness says that after referring to the demolition of the Courts, the accused said : In the same way, why should not all of us work in the cause of Swadeshi?' and that he understood him to mean that they should cause rioting, and prosecution 7th witness says that after referring to the demolition the accused added-'Why should not we in Karur be similarly in harmony?' and that he understood him to mean that they should cause a similar disturbance. I do not think the words spoken to by these witnesses taken in the connection in which they state they were uttered are susceptible of explanation as an appeal for harmonious co-operation in the cause of Swadeshi. As to the general credibility of prosecution witnesses Nos. 5 to 10, I agree with the observations of Mr. Justice Benson and need not repeat them. As against the evidence of these witnesses we have the incredible story of the defence witnesses that the interruption by the 5th witness for prosecution was occasioned by the accused's remarks in favour of reducing military expenditure and spending more money on Education, remarks further which the prosecution witnesses say they never heard. As further discrediting the defence evidence as to the nature of the accused's speech on the 17th, I may refer to facts proved by the Tahsildar who was called by the defence that the reports which reached him as to the accused's speech were such as to lead to his taking action and sending for the police when he was informed that notes had been taken of the speech by the police under instructions. I may also refer to the action of the temple authorities, who after this speech refused to allow the accused to make any further speeches in the temple, and were in consequence referred to by him in terms which were not intended to be complimentary as appears from Exhibit G, the report by prosecution 2nd witness of the accused's speech on the 20th.

11. I have so far dealt with the case apart from the evidence of the notes taken by 2nd and 4th witnesses for prosecution. Now the Inspector of Karur, 21st witness for defence, speaks to a carbon copy of the notes of each speech taken by 2nd and 4th witnesses for prosecution having been filed in his office on the following day, and these carbon notes bear his intials and the date of the receipt. He also states that another copy was sent to the District Superintendent of Police. I attach no importance to the non-production of this copy, which was not called for by the defence, and would in the ordinary course have been sent on to the police higher authorities and then to Government and possibly by Government to its law officers before the present proceedings were sanctioned. The fact which I accept that the carbon copies, Exhibits E (1) and M (1) of the notes, Exhibits E and M of 2nd and 4th witnesses for prosecution, on the 17th were filed in the Inspector's office on the 18th March, in my opinion, shows that the notes Exhibits E and M were made sufficiently near the date of the meeting by 2nd and 4th witnesses for prosecution to entitle these witnesses to refer to them for the purpose of refreshing their memory under Section 159 of the Evidence Act, and to render the notes themselves admissible under Section 160, and it was not argued before me that they were not. But as detracting from the weight to be attached to them it was strongly argued by Mr. Rangachariar for the defence that the notes Exhibits E and M were not, and could not have been, taken down at the meeting by 2nd and 4th witnesses for prosecution as these witnesses swear they were. Now both the learned Judges who heard the appeal were struck by the great similarity of the notes, Exhibit E of 2nd witness for prosecution, and the notes, Exhibit M of the 4th witness for prosecution, and came to the conclusion that they could not have been produced independently. Mr. Justice Benson thinks Exhibit M was written afterwards by the 4th witness for prosecution in consultation with the 2nd witness for prosecution. Mr. Justice Sankaran Nair thinks that prosecution 2nd witness' notes, Exhibit E, were also written after the meeting, relying on the want of light and on the admission that the first two pages of Exhibit E containing the names of the persons present and the hour of beginning and ending were not written at the time, prosecution 2nd witness' story being that he came late and left two pages blank for this purpose. Mr. Rangachariar also relies on the remarkably neat and clean appearance of Exhibits E and M as showing that they do not contain notes taken down by the constables during the meeting, and also On the fact that in prosecution 2nd witness' notes of the speech on the 20th, Exhibit G, there is interposed a note by the witness as to the antecedents of one K.S.R. Chandra, which, however, the witness explains as having been made during an interval while the accused was distributing leaflets regarding a company about which the report shows he had been talking. I am not much pressed by the last objection or by the objection as to want of light and I cannot place any reliance on the evidence of the defence witnesses who say prosecution 4th witness did not take any notes. On the other hand I realise the force of the contention that the resemblance between Exhibits E and M can hardly be fortuitous, and I am also struck by the very neat and clean appearance of the books, Exhibits E and M, though on the other hand certain words to which my attention was directed for the Crown appear to have been written in a hurried manner and it appears by the evidence of 4th witness for prosecution that he was not able in the lower Court to read his notes themselves, Exhibit M, with facility owing to their having been written hurriedly, whereas he was able to road the carbon copy, Exhibit M (1), prepared next day. In these circumstances I hesitate to draw any definite conclusion as to what exactly happened-whether it was prosecution 2nd witness or prosecution 4th witness who wrote out his notes afterwards with the aid of the other's notes, or whether Exhibits E and M were both drawn up after some consultation by prosecution 2nd and 4th witnesses with the aid of notes taken by one or both during the speech. If anything of the sort was done, as I fear it was, it was of course very reprehensible as well as very foolish, but in the circumstances of this case I should be inclined to attribute it to a desire to give their work a good appearance rather than a desire to distort the accused's words. My conclusion that the statements of prosecution witnesses Nos. 2 and 4 as to how their notes Exhibits E and M were drawn up cannot be implicitly relied on, no doubt, detracts from the weight of their evidence as to what the accused said, but I am not prepared on this ground alone to reject it in the circumstances of the present case, corroborated as it is by the evidence of other witnesses whom I see no reason to disbelieve, and opposed only by evidence which appears to me to contain obvious fabrications intended to benefit the accused.

12. I may say further that the internal evidence of Exhibits E and M in my opinion goes to show that they are notes made at the time, or compiled from such notes. As to the alleged want of connection between the Tuticorin incidents and the shooting of the whites by Sepoys which is made to follow, the connection seems to me very clear. Sepoys had been sent for to quell the riots and it appears to me only natural that after referring to the riots the accused should have been led to speak of the Sepoys. The suggestion that the reference to the Sepoys did not immediately follow the reference to the riots appears to me to be opposed to the probabilities as well as to the evidence; and the fact that the accused is made to refer to the Sepoys later in his speech appears to me to be perfectly consistent with his having referred to them here also. As regards those portions of the speech which are not included in the charge, I do not think the references to Mr. or Colonel Boycott and to Mr. A.C. Hume can have been inventions of these two up-country constables who are not likely to have heard previously either of Captain Boycott or Mr. A.C. Hume. The accused on the other hand who says he was lecturing on boycotting would probably have heard of the former and very possibly of the latter. It is I think very likely that prosecution witnesses Nos. 2 and 4 misunderstood what the accused said about Captain Boycott; as to whether they also misunderstood the remarks about Mr. Hume's attitude, I have no means of judging. In conclusion I would observe that the accused has been convicted by the Sessions Judge and the Assessors who had the advantage of seeing the witnesses and I see no reason for disturbing the conviction.

13. As to the sentence, the words which the accused has been convicted of using, were-highly seditious and mischievous and though, the exciting news from Tinnevelly may have led the accused to go further than he would otherwise have gone, I cannot regard his speech on the 17th as an isolated act. The evidence as to his other speeches at Karur appears to show that there was a good deal of sedition mixed up with his Swadeshi preaching. I think, however, that in determining his sentence, his youth and inexperience and the probability that he was an instrument in the hands of others may properly be taken into account, and that in the circumstances of the present case those considerations warrant his being dealt with more leniently than an older and more experienced offender. The justice of the case will, I think, be met by a sentence of three years' rigorous imprisonment; and I dismiss the appeal and reduce the sentence accordingly.


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