1. The six appellants before us form the third batch of persons tried for complicity in the Vizagapatam-Grdavari rebellion which broke out in August, 1922. The Agency Additional Sessions Judge has convicted them all of offences punishable under Sections 121, 121-A, 122, 143, 147 and 148, Indian Penal Code, and ha has convicted only the first and third appellants of an offence under Section 397, and the rest of offences under Section 395, Indian Penal Code, and has sentenced the 1st accused to death and the other five to transportation for life.
2. The first thing to be considered is whether the charge is in order both, as regards the unrepresented appellants, accused 2 to 6, and as regards the first appellant, although his vakil has not raised the defence that the conviction of his client is bad for misjoinder; nor does it appear that misjoinder of charges was made the ground of any objection when the appeals of the batches already disposed of were heard. There are eight counts in the charge. Of the first two counts one consists of a charge for waging war and another of a charge for attempting to wage war, which all form part's of Section 121 by the definition in the Code. It was unnecessary to have two counts for the same offence seeing that the dates and places are the same. Then the third count is that the accused conspired to wage war, an offence under Section 121-A, and the fourth is that they collected arms and ammunition, an offence under Section 122. It was unnecessary to have these counts in the charge as there was clear evidence that these men did much more than merely conspire and make preparations for war. The fifth charge relates to the murder of eight Police Officers. The accused have all been acquitted of this charge and it is unnecessary to consider it further. The sixth count that you and others did loot the Police Stations above mentioned' (of which there are eight) on dates not specified and that you 'did extract supplies of food and other articles by force or threats from the villagers of various villages' on dates not specified, is too vague. Each looting of a village or Police Station should have been treated as a separate offence if it was intended to try any or all of the accused for dacoity apart from waging war. The convictions of the 1st and 3rd accused under Section 397-daooity armed with a dangerous weapon and of accused 2, 4, 5 and 6 under Section 395 of dacoity, must be quashed, as the charges did not give them sufficient notice and particulars of what they had to meet but the validity of the conviction under Section 121 is not affected by the striking off of the convictions for other offences forming component parts of the offence of waging war, and. the accused cannot be said to have been prejudiced in their defence on the charge for waging war, as the acts of dacoity were all merely some of a series of incidents which want to make up the continuing offence of waging war within the meaning of Section 235(3), Criminal Procedure Code.
3. The Judge has not passed separate sentences for each offence. The combined sentence of transportation for life imposed for the offence under Section 121 cannot be reduced in the case of those accused against whom there is evidence of participation in that crime, as that sentence is the minimum prescribed by law under 8. 121.
4. It was decided by Oldfield and Ramesam, JJ., in one of the appeals arising out of the Malabar rebellion, R.T. No. 80 of 1922, that the waging of war (or 'adhering to the King's enemies' as treason is sometimes described in England) is essentially a continuing offence, in which several incidents, which may in themselves be separate offences, may be comprised. I see no reason to think it is otherwise. Rebellion implies a state of being rather than the doing of any act, although for a conviction it is necessary to prove that some overt act was committed by the offender. Rebellions and war continue until they are suppressed by capture or destruction of the rebel forces or by the rebels laying down their arms and making their submission as subjects to their Sovereign and receiving his pardon. What was held by the Privy Council in Subramania Aiyar v. King-Emperor (1901) 25 Mad. 61 to vitiate a trial was the joinder of more than three offences of bribery and extortion extending over 21/2 years at one trial without separate charges for each offence as that was a direct contravention of Sections 233 and 234, Criminal Procedure Code. When a series of acts are so connected by community of purpose and continuity of action as to form not only one transaction but a single offence, proximity of time between the performance of the various acts composing that offence not being the sole test of the unity of the transaction, Section 235 authorizes persons accused of doing those acts to be charged and tried at one trial for them all : vide Emperor v. Sherufalli (1902) 27 Bom. 135 Emperor v. Datto Hanmant Shahapurkar (1905) 30 Bom. 49 which lay down the principle, that intervals of time between the commission of a series of acts do not necessarily import want of continuity when the aims of those jointly tried have throughout been directed to one and the same objective, and Choragudi Venkatadri v. Emperor (1910) 33 Mad. 502. Subramania Aiyar v. King-Emperor (1901) 25 Mad. 61 was not a case of misjoinder of persons. Section 239, Criminal Procedure Coda, (as amended), Clause (d), authorizes the trial of more persons than one on one charge and at one trial if they are accused of different offences committed in the course of the same transaction. If an offence is a continuing one, I do not find any real difficulty in regarding it as a continuous transaction. In the course of committing; a continuing offence like waging war them-may be many minor incidents which of themselves constitute different offences. To take the example of another offence of a continuing nature, the offence of being a member of an unlawful assembly (Section 143, Indian Penal Code), the members of it may commit several acts which amount of themselves to separate offences, and while Section 149 provides that they are not responsible for offences committed by the general body before those individual persons join or after they leave the body, I have never heard it suggested that all the members cannot be tried at one trials for the main offence under Section 143 as well as for those other offences which have been committed by any member in pursuance of the common object during the time when they are present in the assembly. To take another instance of a continuing offence culpable homicide by starving a child to death by persons, legally bound to maintain it, illegally omitting to feed it the acts or rather omissions might extend over a long period with occasional interruptions during which food might be given, closed by the culminating event of the child's death, and yet the whole would be one transaction with a single objective. It would be absurd to charge the guardians for withholding food from the child only on the day of its death when the cause of death was continuous and systematic-starving. In the present case the matter is simplified by the fact that the accused are charged not merely for committing; several offences in one transaction, but for the same offence, in which several other offences are combined, thus bringing the case within the scope of Section 235(3). Accused 4 and 6, according, to the evidence, only took part in the second campaign; the first incident of which was the looting of Anantagiri village on 10th March, 1923, and the last of the attack on Paderu Police Station on 22nd September, 1923. There is no evidence that accused 4 and 6 took part in the first campaign which lasted from August 1922 to November, 1922. There was an interval between November, 1922 and March, 1923 during which no overt acts on the part of the rebels were reported. These two accused were only seen in the company of other rebels after the 1st May, 1923. The fifth accused was first seen by P. Ws. 61 and 62 at Chintalapoody on the 30th October, 1922, upon which occasion constables were captured by the gang and Government rations loot--ed. As the rebel gang led by Srirama Raju did not cease their operations or make their submission during the period in which these accused are charged, with committing acts of waging war, I do not think that it was illegal to charge and try them simultaneously for the same offence of waging war under Section 121, Indian Penal Code, with other members of the gang who were inspired by a common object of subverting the Government and destroying its forces, 'offence' being defined in Section 4(I)(o), Criminal Procedure Code, as an act made punishable by law, and, 'act' being defined in Section 3(2) of the General Clauses Act, as including a series of acts, so that an offence is really an act or series of acts made punishable by law. The charging of accused 1 and 2 with the attack on the Police Station at Paderu, which took place after these two accused had been arrested and kept in custody, and the charging of accused 4 to 6 with attacking Chintapalli and other Police Stations, which were looted before these men joined the rebel gang, were pieces of carelessness which should have been avoided; but I cannot hold that it vitiated their trial for waging war so long as there was evidence to prove that they took part in attacking other Police Stations and villages which were properly mentioned in the charges as acts of waging war. I think however that accused 4 and 5, who looted no Police Station and fought in no engagements with the forces of the Crown, must have been prejudiced by not being informed in the charge what acts of theirs constituted waging war specifically, and what charges they had to meet, and I consider that the conviction of these two accused should be quashed and that they should be re-tried by the Additional Sessions Judge upon properly drawn-up charges, having reference to the part they took in specified incidents within the dates mentioned in the charge under Section 121.
5. The accused were all acquitted on the 8th count in the charge of mischief by fire by burning the Government rest-house at Koyyur and the sheds at Gudem. It is unnecessary to say more about that offence.
6. As regards the sixth accused the earliest incident about which there is any evidence of his participation in the rebellion is the attack on Paderu Police Station on the 22nd of September, 1923, which occurred after the arrest of the first accused on the 18th September and the second accused on the 14th September. As the continuance of the offence of waging war does not depend on the presence of particular rebels in the rebel band and as there is evidence that the gang continued under the leadership of Srirama Raju even after some of his adherents were killed and captured, I do not find the charge and trial of this accused along with other participators in the offence under Section 121 to be illegal-vide Section 239, Clauses (a) and (d). If the leader, Srirama Raju, who was present throughout both campaigns, had been on his trial along with these accused, could it be said that any of those who joined his following at a later stage of the rebellion could not be tried along with those who deserted him at an earlier stage, seeing that all were charged with having committed the same main offence of waging war under his leadership at one time or another? I think not. Then on what principle, it may be asked, does Sri Rama Raju's absence from the dock alter the position of those who are present? I do not understand Clause (a) of Section 239 as applying only to offences of a continuing nature Supposing two murders were committed in the course of one transaction and that A took part in both but B in the first only, A and B could be tried jointly for the same offence, viz., murder, but the charge would contain two counts against A and only one against B.
7. As regards the merits of the conviction, there is overwhelming evidence against the first accused that he took part in the attacks on the Police Stations of Chintapalli, Krishanadevipeta, Rajavommangi, Addatigala, Chodavaram, Annavaram and Malkanagiri in the depositions of P.Ws. 6, 7, 9, 11, 36, 13, 43, 44, 49, 53, 54, 56, 71, 86 and of other acts of violence which are spoken to by P.Ws. 90, 91, 39, 41, 40, 48, 117, 59, 60, 72, 64, 82, 96, 100 and 65 and other witnesses. His name is mentioned in Exhibits S, XX, ZZ, GGG, UUU (2), TT (1), BBB. (1), T (12), VVV, XXX, but not in Exhibits T.VV (1), SS (2), CCC and AAA. Of these witnesses some speak to the same occasion but most of them to different occasions. The cumulative effect of this evidence is very great and leaves no room for doubt that the first accused committed the offence of waging war. P. Ws. 6, 7, 9, 36, 49, 56, 62, 63, 39 and others say that the first accused was a leader or sirdar under Srirama Raju and carried a gun, (some say a 303 rifle) and posted guards. P.Ws. 23 and 24 say that he was among those who fired at the Police at Onjeri ghat where a constable was killed. The schoolmaster of Gudem, P. W. 8. says that he was one of the leaders who persuaded people to join the rebels. There is not much evidence that he organised the rebellion but there is a large amount of evidence that he took a leading part in it including the cutting of P.W. 90's ear. In his appeal petition and his statement to the Lower Court he pleaded that he remained with Srirama Raju under compulsion and that guards were set to prevent him from running away. Several of the accused in this case have excused themselves on the plea that they were made to help the rebels. If all these pleas were true the band could not have held together for one day. As observed in the judgments disposing of the appeals of those previously convicted the nature of the country made escape easy. It is impossible to believe that the leader of the rebellion had enough staunch followers to spare to guard those in his band who were unwilling to remain with him if so many wished to desert.
8. There can be no doubt of the guilt of the first accused. His conviction should in my opinion be confirmed and seeing that he was a ringleader among the rebels and probably was one of those who took life at Onjeri, if not at other places the sentence of death imposed on him, I think should also stand.
9. As regards accused 2, 3 and 6, we have been referred to the evidence connecting them with the offence which is tabulated) at the end of the judgment. The 2nd; accused was seen by P.W. 9 and another witness carrying an ammunition box but he was also seen by P.W. 11 patrolling-with a gun and a sword; so it appears' that he was found competent and willing and so was promoted to a post of greater trust under the leader of the band. I find that there is ample evidence to convict all these accused of the offence of waging war. The sentence imposed on them is the minimum allowed by the Code. Their appeal should, in my opinion, be dismissed, but as my learned brother is of opinion that the conviction of accused 1, 2, 3, 4, 5 and 6 is bad, the case will be laid before a third Judge under Section 429, Criminal-Procedure Code.
10. With great respect I find myself unable to agree with my Lord in this matter. I regret this extremely, note only because I recognize that my Lord's-opinion is likely to be of much more value-than my own, but also because, if my view is adopted, it will involve throwing; away the time and labour spent on this-case in the Sessions Court for reasons not directly connected with the guilt or innocence of the accused.
11. Eight charges were framed against thesis accused who are the appellants before us. On two of these charges all of them were acquitted. On the remaining six-charges all of them were convicted, on Charge 6 accused 1 and 3 being convicted of using deadly weapons in dacoity, punishable under Section 397, Indian Penal Code, and the rest being convicted of dacoity punishable under Section 395, Indian Penal Code.
12. Charge 1 is that all the six accused waged war against the King-Emperor, as offence punishable under Section 121, Indian Penal Code. Seventeen separate incidents said to have occurred within dates more. than 15 months apart, are mentioned in the charge, and at first sight it might appear that the Sessions Judge intended' to charge the accused with that number of successive offences of waging war which would offend against the rule that no one can be tried at one trial for more than three separate offences of the same kind nor even for three such offences if not committed within a year. But it was decided in Referred Trial 80 of 1922s that the offence of waging war, punish able under Section 121, Indian Penal Code, is a continuing offence, and I am content to follow that decision. I agree that Charge 1 is not illegal by reason of contravening Section 234, Code of Criminal Procedure, by mentioning more than three offences spread over a period longer than a year.
13. But in my opinion there are other fatal defects in Charge 1, The charge is to the effect that all the six accused between 22nd August, 1922 and 18th December, 1923 attacked and looted and attempted to loot eight specified Police Stations and attacked the forces of the Crown at nine specified places and did thereby wage war against the King-Emperor, committing offences punishable under Section 121, Indian Penal Code. No date is given for any of the 17 incidents mentioned. It is clear from the wording of the charge that the waging of war with which the accused are charged is in respect of the 17 incidents specified. Mr. Adam urges that, as waging war is a continuing offence, it would have been quite legal to charge the accused with waging war within certain dates and in a certain area without mentioning any particular incident. That may be so. But in this case particular incidents have been specified, and the accused have been informed by the charge that it is the accusation that they took part in those incidents which they have to meet. The incidents have not been mentioned in the charge as instances of their waging war or as illustrations of the way they did it : it is alleged against them that they took part in those incidents and thereby waged war. The prosecution have therefore to prove that the accused took part in those particular incidents or in some of them. If they fail to prove against any particular accused that he took part in any of these incidents, that accused must be acquitted on this charge. Evidence that he took part in other incidents of the rebellion might be used to corroborate evidence that he took part in these incidents or some of them but by itself cannot prove him guilty on the charge as framed. No evidence has been produced that accused 4 or accused 5 had anything to do with any of the 17 incidents mentioned in this charge. In my opinion accused 4 and 5 must therefore be acquitted on this charge. It may be possible to try them again for waging war by taking part in other incidents of which evidence has been given but which are not included in this charge; but with that we are not now concerned.?
14. A less simple question is whether it was legal to try accused 6 with accused 1,2 and 3 on Charge 1. The evidence against accused 1 on this charge is that he took part in attacks on 6 Police Stations the earliest being the attack on the Chintapalli Station on 22nd August, 1922 and the latest that on the Malkanagiri Station on the 11th June, 1923, and that he also took part in the attacks on the forces of the Crown at Onjeri and Damanapalli on 3rd September, 1922 and 24th September, 1922, respectively. The evidence against accused 2 is that he took part in the attacks on 2 Police Stations on 23rd August, 1922 and 19th October, 1922 respectively and in the 2 attacks on the forces of the Crown at Onjeri and Damanapalli in September, 1922. The evidence against accused 3 is that he took part in the attacks on 3 Polype Stations between 23rd August, 1922 and 11th June, 1923 and in the attacks at Onjeri and Damanapalli in September, 1922. There is also evidence that accused 1 was arrested on 18th September, 1923 and accused 2 on 14th September, 1923. The earliest and only incident mentioned in Charge 1 in respect of which there is any evidence against accused 6 is the attack on Paderu Police Station on 22nd September, 1923. That attack was more than 3 months after the latest of the 17 incidents mentioned in the charge in which according to the evidence accused 1 or accused 3 took part and 11 months after the latest of the incidents in which accused 2 took part. It was also after the dates on which accused 1 and 2 had been arrested and had disappeared from the scene. The finding of the Sessions Judge is that accused 6 only joined the rebels about 29th August, 1923. One witness, P. W. 112, mentions that accused 6 was present when rice was extorted by some rebels at Bodatharampalem in April, 1923. But apparently neither the prosecution nor the Judge relies on that evidence. There is no suggestion that the prosecution at any stage had evidence, which failed for any reason, that accused 1, 2, 3 or 6 took part in any of the 17 incidents other than those I have mentioned in respect of them. We must take it that the prosecution case was that they took part only in those of the 17 incidents respectively. The question is could accused 6 be tried legally for waging war at Paderu on 22ad September, 1923 with accused 1 and 2, who by that date had been arrested and had disappeared from the scene, with accused 1 and 3, who were charged with committing other acts of war but none later than June, 1923, and with accused 2, who was charged with none later than October, 1922? I speak of accused 1 and 3 not being charged with any act later than June, 1923, and accused 2 with none later than October, 1922 because the mere inclusion in the charge framed by the Sessions Judge of allegations that accused 1, 2 and 3 took part in the attacks on Paderu and other Stations, etc., which the prosecution had no intention of proving and knew in respect of Paderu Station to be untrue so far as accused 1 and 2 are concerned, or of allegations that accused 6 took part in incidents earlier than the date when according to their case he joined the rebels cannot help the prosecution. If the prosecution has evidence and sets out to prove that A, B and G has each committed a separate murder, their joint trial cannot be made legal by framing a charge that all of them committed all 3 murders. The charge in a Sessions trial must be based on evidence given before the committing Magistrate. A mis-joinder of persons cannot be escaped by deliberately making the charge wider than the evidence produced to support it in order to represent all the persons tried as accused of all the offences or incidents included, though there is no prospect nor intention of proving more than that each is guilty of some of them. It may be noticed in passing that apart from any legal defect in it Charge 1 has been framed with so little care that it includes one attack on a Police Station and 7 attacks on the forces of the Crown with which there is no evidence to connect any of the accused in this case. Remembering that waging war has been held to be a continuing offence, the utmost that Charge 1 can be taken legally and effectively to allege against accused 1, 2, 3 and 6 is that accused 1 waged war from 22nd August, 1922 to 11th June. 1923, that accused 2 waged war from 23rd August, 1922 to 11th June, 1923, accused 3 from 23rd August, 1922 to 11th June, 1923, and accused 6 only on 22nd September, 1923. When the dates are set out like that, it is certainly a very surprising charge.
15. I think it is clear - and I understand that to be also my Lord's view - that the trial of accused 6 on Charge, J., with accused 1, 2 and 3 can be legal only if the attack on the Police Station at Paderu on 22nd September, 1923 can be treated as part of the same transaction as that in which accused 1 and 3 were engaged in June, 1923 and earlier and accused 2 on and before 19th October, 1922, the date of the attack on the Rampa Chodavaram Station, the last of the 17 incidents in which accused 2 is shown to have taken part-an incident which occurred 10 months before accused 6 is shown to have joined the rebellion. These widely separated incidents can only be treated as parts of one transaction within the meaning of Section 239, Code of Criminal Procedure, if the whole insurrection can be treated as one transaction in that sense. Is that a fair or reasonable interpretation of the word 'transaction' as used in that section? If that interpretation is to be adopted, then 10 rebels might be tried together for 10 separate acts committed by them respectively at separate times and places over a period of many years if only they were all committed in furtherance of the same rebellion. In my opinion 'transaction' as used in Section 239, Code of Criminal Procedure, must mean something less wide than that. It has been suggested that, if waging war is a continuing offence and that offence may continue for a long period, then, so long as it continues, how so many incidents it embraces, it must be one transaction within the meaning of the section. I must admit that at first sight that argument attracted me. But, with respect, an examination of the section, I think, shows that it is unsound. The first class of persons whom the section allows to be charged and tried together are 'persons accused of the same offence committed in the course of the same transaction.' There is something rather curious about those words. What is the meaning there of the words 'in the course of the same transaction?' The provision relates not to persons accused of the same kind of offence, but to persons accused of the same offence. Would it not have been enough to provide that persons accused of the same offence may be charged and tried together? What is the meaning of adding the qualification 'committed in the course of the same transaction'? We cannot treat those words as meaningless or redundant, at least we are not at liberty to do so until we are satisfied that it is impossible to attach any significance to them. Now, if we apply this provision to non-continuing offences, that is, offences embracing only one incident, such as murder, we cannot reasonably speak of two persons being accused of the same murder committed in the course of the same transaction. If we do so, the words 'committed in the course of the same transaction' are clearly redundant and add nothing to the meaning. But, if we apply the provision to a continuing offence, it is possible to give a meaning to those words. Applied to a continuing offence they will have a meaning if we read 'committed in the course of the same transaction' as having a restrictive effect. A non-continuing offence is necessarily one transaction a continuing offence may or may not be so : persons accused of the same continuing offence may be tried together so far as their offence is confined to one transaction. If the provision is interpreted in that way, it has an intelligible and practicable meaning. In my opinion it must be so interpreted. If that interpretation is correct an offence cannot be treated as necessarily one transaction-merely because it is a continuing offence. On the contrary the section implies that a continuing offence may embrace more than one transaction, but, only so far as it is concerned with one transaction, can more persons than one be tried together for it. If we apply this to waging war, the section allows us to try several persons together for the same continuing offence of waging War within the limits of one transaction but not if the offence alleged covers more than one transaction. Under Section 239(d) several persons may be charged and tried together when accused of different offences committed in the course of the same transaction; but 'transaction' there must have the same meaning as in Section 239(a).
16. We must return to the question whether an insurrection including many different incidents and extending over a long period can be regarded as one transaction within the meaning of Section 239, Code of Criminal Procedure. I can find no reported case in which 'transaction' has been given so wide a meaning. It can hardly be denied that in ordinary parlance no one would think of speaking of a long-continued insurrection as a transaction. Is there anything in the section or the connected sections or the Code to justify us in giving the word so extended a meaning? The general rule is laid down in Section 233 of the Code for every distinct offence there shall be a separate charge separately tried. The principle obviously is that the accused person shall have a simple allegation to meet and the Court a clear issue to try. But to the general rule certain exceptions are made. One person may be tried at one trial for three offences of the same kind committed within a year (Section 234); one person may be tried at one trial for several offences forming parts of the sama transaction (Section 235); one person may be tried at one trial for several offences or for alternative offences if it is doubtful which of those offences the facts which can be proved will constitute (Section 236); and lastly more persons than one may be tried together at the same trial for the same offence committed in the course of the same transaction, for three offences of the same kind committed by them jointly within a year, for different offences committed in the course of the same transaction, etc. (Section 239). The object of introducing these exceptions to the general rule is to prevent unnecessary duplication of proceedings. On examination it will be seen that all these except ions can be interpreted so as not to conflict with the general principle that the accused person should not be perplexed and the Court should not be confused by complicated or numerous or disconnected allegations. In interpreting these exceptions it must never be forgotten that they are exceptions to the general rule and therefore to be interpreted with strictness and, so far as they affect the defence of accused persons, with the utmost strictness. To my mind it is entirely wrong to approach the interpretation of the word 'transaction' in Section 235 or 239 with the idea of ascertaining how far etymologically it will extend, how far the thread of continuity implied in it can be stretched, how far we can strain its meaning without an obvious breakdown. In Choragudi Venkatadri v. Emperor (1910) 33 Mad. 502 Benson, J. remarked that the provisions of the Code regarding charges are designed to simplify and define within reasonable limits the charges that may be tried at one and the same time and so avoid the embarrassment of the accused. It is very desirable that Public Prosecutors and the Courts should give full effect to the spirit of the provisions of the Code instead of straining them to cover doubtful cases. With those observations I respectfully agree. Can we consistently with the spirit of the Code stretch the ordinary meaning of the word transaction so as to make it embrace all the incidents of a long continued rebellion spread over a wide area and extending over many months? This case itself I think illustrates the mischief of such an interpretation. At the trial accused 6, an ignorant hilllman, had to stand in the dock for more than a fortnight and listen to the examination of 96 witnesses before a word of evidence was given against him. It is unlikely that at the end of that time he was bewildered and befogged about the case? It is clear that the Sessions Judge himself was confused by the complexity of the proceedings, as he fell into the remarkable error of convicting accused 4 and accused 5 on Charge 1, though there is no evidence at all that they had anything to do with any of the incidents included in that charge. I am now concerned, however, not directly with any prejudice which the form of the charge may have caused to the accused, but with its legality. In my opinion, the word 'transaction' in Sections 235 and 239 of the Code must not be interpreted in any special or artificial or conventional or technical way but as it is ordinarily used by men of education and common sense. If you cannot speak of a series of events as a transaction in the ordinary sense in which that word is used, you cannot try a number of persons together in respect of those events by attributing a special and unusual meaning to the word in Section 239 of the Code. Can we in any ordinary sense of the word say that accused 9, when he attacked the Ratnpa Chodavaram Police Station in October 1922, was engaged in the same transaction as accused 6 when he attacked the Paderu Police Station in September of the following year? To my mind it is impossible to do so. If that view is correct, the joint trial of accused 2 and accused 6 was illegal and void. Similarly the trial of accused 1 and accused 3 with accused 6 was illegal. There are somewhat similar difficulties about the trial of accused 1, 2 and 3 together; but it is unnecessary to discuss them. If the trial of accused 1, 2 and 3 with accused 3 was illegal, we cannot exclude accused 6 from consideration and leave the trial of accused 1, 2 and 3 to stand good.
17. In my opinion the convictions of accused 1, 2, 3 and 6 on Charge 1 of waging war must be set aside and an order should be made for them to be retried for that offence either separately or, so far as there is evidence that they or any of them were' jointly concerned in incidents of waging war which were parts of one transaction, together.
18. Of the other charges on which the appellants have been convicted Charge 2 falls with Charge 1. Charges 3, 4, 6 and 7 without any specification of times and places are too vague to stand. In my opinion the convictions of all the accused on Charges 2, 3, 4, 6 and 7 should be set aside and they should be acquitted on those charges as it does not appear to be necessary to try them again for those offences.
19. When the case was referred to Krishnan, J. under Section 429, Criminal Pro. Code His Lordship delivered the following judgment:
20. This case has been referred to me under Section 429, Criminal Procedure Code, because of a difference of opinion between the learned Judges who heard the Appeals in the first instance. The learned Officiating Chief Justice was of opinion that the convictions and sentences of accused 1, 2, 3 and 6 should be confirmed and that the case against accused 4 and 5 should be retried : whereas my learned brother Reilly, J. who sat with him, was of opinion that the whole trial was vitiated as illegal and should be set aside; he directed that the 4th and 5th accused should be acquitted, and that accused 1, 2, 3 and 6 should be re-tried separately.
21. Both the learned Judges were agreed about certain minor charges framed against the accused. The main point on which they differed is on the question of the legality of the joint trial of all the accused chiefly on the first count in the charge. Under that count the accused were charged with the offence of waging; war against the King-Emperor under Section 121, Indian Penal Code. The charga says : 'That you the above accused (naming all six of them) did with others, at eight places (named) attack and looted or attempt to loot the Police Stations there and did at other places (named) attack the forces of the Crown and did thereby wage war against the King-Emperor.' The learned vakil for the 1st appellant (1st accused) urges that as it has been shown by the evidence in the case that the 6th accused joined the party waging war only long after the 1st and 2nd accused had ceased to be members of that party as they had already been arrested, the trial of the 6th accused with the 1st and 2nd accused and others jointly was not justifiable by anything in the Criminal Procedure Code. This argument was rejected by the Officiating Chief Justice but has been accepted by my learned brother Reilly, J.
22. No doubt, as Reilly, J., points out, the fundamental rule under the Criminal Procedure Code is what is stated in Section 233 that 'for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately;' but the section itself mentions the exceptions to it and refers to Ss 234, 235, 236 and 239. The learned Public Prosecutor contends that the joint trial of the six persons under Section 121, Indian Penal Code, is justified by Section 239(a).
23. There can be no doubt that there was a war being waged in the Eampa district and this case has arisen with reference to that war; it was started by one Srirama Raju who was the ringleader of the rebels from August, 1922, when the first attack on the Chintalapudi Police Station was made and continued for a long time thereafter. The question I have to decide is whether the six persons who have been tried together under the first count are not persons accused of the same offence committed in the course of the same transaction within the meaning of Section 239(a). There can be no doubt whatsoever that they are persons accused of the same offence because they were all charged under Section 121, Indian Penal Code, with waging the same war. Then the question is whether we can say that the offence was committed in the course of the same transaction so as to fall under Section 239(a).
24. The question of the legality of a joint trial, in my opinion, really depends upon the accusation made and not upon the; result of the trial : provided, of course : that the accusation is a real one and not; a mere excuse for a joinder of charges which cannot be otherwise charged. It. was so held in Abdul Salim v. Emperor A.I.R. 1922 Cal. 107 and I am prepared to follow it. It is not pretended here that there was any conscious attempt to join charges which could not otherwise be joined or that the charge as framed under count (1) was so framed for that purpose. The legality of the joint trial in this case has to be judged on the accusation and not on what was. subsequently proved. The charge certainly as worded in count (1) puts all the six; accused on the same footing as having; committed all the various crimes mentioned in it in the course of the rebellion. The fact that it was afterwards shown that some two people among the six had by reason of their arrest ceased to be members of the party before a third man joined it, I do not think, will really affect-the question at all.
25. The only question we have really to decide in the case is whether the various incidents mentioned in the charge were or were not parts of the same transaction. That the offence under Section 121 of waging war is a continuing offence has been laid down in this Court in R.T. No. 80 of 1922. It was followed by another Bench of this Court in Criminal Appeal No. 1891 of 1922 and I am prepared to follow that view. The waging of a war is clearly a continuing offence, it begins with the first act of war and goes on till the war is-ended in some manner as pointed out by the learned Officiating Chief Justice. It; may be, as Reilly, J., remarks, that the various incidents in a war may be so disconnected as to form different transactions. The question whether they form parts of the same transaction or must necessarily be held to be different trans actions has to be judged in my view on, the facts of each case.
26. In the present case there is no reason to suppose that the rebellion which was started by Srirama Rajn and continuously carried on by him and his followers for a considerable time was anything but a single transaction. It was carried on throughout under his leadership and he and his followers were animated through out with the same motive of overthrowing the British Government. There were both continuity of action and unity of purpose regarding the various acts charged against) the accused. No doubt several places were attacked and looted and more than one engagement was fought in which some deaths took place; but I consider that we are justified in holding on the facts that the whole thing was one and the same transaction. The point was not taken in the Lower Court and has therefore not been fully threshed out. But I agree with the learned Officiating Chief Justice that the joint trial of the accused for the offence under Section 121, Indian Penal Code, is not illegal.
29. The expression 'the same transaction' has been tried to be explained in several cases which have been brought to my notice. After all it cannot be said that any very satisfactory definition of the words has been given. Each case must be judged in my opinion on the facts of that particular case. Generally speaking I am prepared to follow the observations of the learned Judges in Choragudi Venatadri v. Emperor (1910) 33 Mad. 502 in which the effect of the previous decisions has also been considered as to the meaning of the expression. Abdur Rahim, J. says that the usual tests applied to decide whether different acts are parts of the same transaction are proximity of time, unity of place, unity of purpose or design and continuity of action. It is not necessary that all of them should be present to make the several incidents parts of the same transaction. Unity of place and proximity of time are not important tests at all; but the main test, so far as I can see, is the unity of purpose. Continuity of action goes with unity of purpose. If the various acts are done in pursuance of a particular end in view and as accessory thereto, they may, as Abdur Rahim, J. observes, will be treated as parts of the same transaction. In this case there was clearly unity of purpose and continuity of action in starting and carrying on the war. All the accused were throughout acting with the same purpose of subverting the Government in joining rebellion. In this connection it was urged that as there was a lull in the operations for three -months, as stated by the learned Sessions Judge in para 8 of his judgment, it broke up the war into two campaigns and there were therefore at least two transactions. I do not think the argument is right as in this case it cannot be said that at the time of the lull the rebels had abandoned their idea of fighting against the Government. They were only waiting for a more favourable opportunity of attacking the Government forces. I am, therefore, of opinion that as a question of fact, various incidents mentioned in count (1) of the charge were parts of the same transaction and that the trial of these accused together was justified under Section 239(a).
30. It was next contended that a single trial Under the sixth count of the charge also rendered it illegal even if the trial under the first count was proper. It was urged by the learned vakil for the 1st appellant that the charge included more than three offences of the same kind committed in the course of a year as it charges the accused with 8 separate dacoities; and therefore the trial was bad as Section 234, Criminal Procedure Code, justifies only a joinder of three such charges at one trial. If there were eight separate and independent charges of dacoity against the six accused, no doubt the objection would be a strong one; but the learned Public Prosecutor points out that these charges are not separate but are made of offences which had been committed in the course of one and the same transaction, namely the waging of the war. That seems to be so as the various dacoities were only incidents in the course of the war if the count of waging war failed count 6 also would fail. Count 6 begins by saying, 'that you and others in your attacks on the Police Stations above mentioned did loot the stations of arms,' etc., the words above mentioned referring to the first count. I think it is not straining its language too much to hold that the charge meant to accuse six persons of dacoity as having been committed in the course of the war and therefore the joinder of more than three charges would be justified under Section 239(d). It may be mentioned that the accused admitted that they did take part in the fituri rebellion and merely pleaded compulsion as their excuse. They were represented by a vakil and no objection was taken to the frame of any of the charges or to the joint trial in the lower Court. There is really no foundation for the suggestion that the accused were embarrassed or in any way prejudiced in their defence. They themselves never said so. However, if the ferial was illegal, no doubt, the question of prejudice will not arise. I, however, agree with the learned Officiating Chief Justice for the reasons above given in holding that the conviction cannot be set; aside on the ground that the trial was illegal.
31. On the merits the case of accused 1, 2, 3 and 6 has been hardly argued before me for it is clearly proved against them on the evidence. In fact, as I have stated already, it is not denied that these accused took part in the war. I confirm the conviction of accused 1, 2, 3 and 6 under Section 121, Indian Penal Code. As regards the sentence on the 1st accused, I shall deal with it presently. In the view I take it is unnecessary to consider their convictions under the other sections charged.
32. As regards the 4th and 5th accused, they are not shown to have looted any of the Police Stations mentioned in count (1) or committed any of the dacoities charged or to have fought in any engagement with the forces of the Crown. It is on this ground that Reilly, J. has directed their acquittal. It is, however, shown by the learned Public Prosecutor that there is a considerable body of evidence against them as set out by the learned Sessions Judge in the schedule to his judgment to show that they did take part in waging war though not exactly in the manner set out in count (1). In these circumstances, the proper order is, in my opinion, to quash the conviction of these two accused because they would certainly have been prejudiced by the way in which the charge was framed under count (I), and to direct them to be retried by the Agency Additional Sessions Judge upon properly drawn up charges under Section 121, Indian Penal Code.
33. As regards the sentence on the 1st accused, I am not satisfied that a differentiation should be made between him and the other accused who took part in the rebellion who are before me. The learned Officiating Chief Justice confirms the sentence of death passed on him on the ground that he was probably one of those 'who took life at Onjeri,' but there does not seem to be clear evidence of it he was acquitted of the charge of murder of the Police Officers. I would, therefore, alter his sentence and impose upon him the same sentence as the other accused have received, viz., transportation for life. With the alterations abovementioned, the appeals are dismissed.