1. In this case 13 accused were tried before the Sessions Judge of Tinnevelly, as to all of them with having formed an unlawful assembly on or about 6th December, 1924, with the common object of forcibly taking a marriage procession through non-Nadar streets and with the intention of causing hurt to the non-Nadars and committing mischief, thefts and dacoity in regard to their property, etc., offences punishable under Sections 147 and 323; as to accused Nos. 1, 3 and 7 that they being members of the aforesaid unlawful assembly, were armed with guns and accused Nos. 2 and 4 with aruvals [Small swords.--Ed.], etc., an offence under Section 148; as to accused Nos. 8, 11 and 13 that they, in the course of the same transaction as the rioting and in furtherance of the common object, stole a cart, an offence under Section 370; as to accused Nos. 2, 5 and 7 that they broker into the house of Karuppayi and committed theft of a trunk, etc., offences under Sections 454. and 393; as to accused Nos. 1, 4, 6, 7, 10 and 12 that they in furtherance of the common object committed dacoity in the house of Kamakshi Ammal wherein accused Nos. 4, 10 and 12 removed articles of property, goats, grains, vessels, etc., and accused Nos. 6 and 7 forcibly removed the ear jewels of Kamakshi, an offence under Section 395; and as to accused Nos. 2, 5, 8, 11 and 13 that they as members of the said unlawful assembly, in prosecution of the common object of which accused Nos. 4, 6, 7,10 and 12 committed dacoity, also committed an offence under Section 395 read with Sections 34 and 149.
2. It will be observed that the trial was complicated by the fact that certain charges and surely those under Sections 379, 459, 392, 395 read with Sections 31 and 149 are charges triable by a Jury, whereas the charges under Sections 147, 148 and 323 are charges triable by the Sessions Judge with assessors. The learned Judge summed up the case at some length to the Jury with regard to all the charges, but when he came to write his judgment with regard to the charges triable by himself with the assessors, he agreed throughout with the Jury except as to finding accused Nos. 5, 6 and 9 guilty of arson. He convicted all the accused of rioting under a. 147; accused Nos. 1, 3, 7, 8, 2, and 4 under Section 149; accused Nos. 8, 11 and 13 under a. 379, accused Nos. 1, 2, 5 and 7 under Sections 454 and 392; accused Nos. 1, 4, 6, 7, 10 and 12 under Section 393; and accused Nos. 2, 5, 8, 11 and 13 constructively under Sections 395 and 149.
3. Appeal is taken with regard to several points in the learned Judge's procedure. It is first said that the judgment is not in accordance with the requirements of the Or. P.C., Section 367, in that it does not contain the points for determination, the decision thereon and the reasons for the decision. It will be seen from what I have said about the judgment that it has really only a reference to the charge to the Jury which was held not to be a sufficient compliance with the requirements of the Code by a Bench of the Bombay High Court in Queen-Empress v. Dattu Rat. Un. Cr. C.426. It is . very difficult to lay down any hard and fast rule and I do not in this case in the least propose to do so as to what amount of judgment a Judge should write in any particular case and particularly in a case of this kind where he and the Jury are in fact performing two separate functions at the same time; but this point weighs with me in the present case. All the accused have been convicted under Section 147. On appeal the defence would, no doubt, be embarrassed by want of discussion on the part of the Judge as to the evidence which he believes as against each of the accused. The learned Judge in his charge says in para. 10 : 'If you believe the evidence, there is sufficient evidence to prove that these accused committed rioting. But whether you do or do not believe, it is a matter for you to decide and I think etc.' One cannot conjecture what part of the evidence for the prosecution weighed with the Jury as assessors in coming to a conclusion on this charge, the learned Judge not having set out any reasons specifically why he agrees with the Jury although he says that he agrees for reasons set forth in his charge. As pointed out by Mr. Ethiraj, without going deeply into the evidence--and in this case I am certainly not going to do that--there are varying and discrepant statements on the part of the prosecution as to, for instance, the weapons carried by several of these accused. It may be that the Jury were able to carry these things in mind in arriving at their opinions as assessors. But from the point of view of a Counsel arguing an appeal oa behalf of the accused, I quite realise that there may be a good deal of difficulty and embarrassment. I am the last person to insist that that a lot of unnecessary writing should be done by probably a very husy Sessions Judge, but I do not think in this case it is unfortunate that the Judge did not enter more into details. If he had merely said 'I believe P. W. so and so or better still P. Ws. so and so speak against such and such accused and such other witness against the other accused and I believe them,' it would be quite sufficient in my view; I think, therefore, that I must hold that the judgment is insufficient.
4. The learned Public Prosecutor says that, if I find that the judgment is defective but do not find that the charge to the Jury is also defective, to avoid a further trial, he would be willing to submit to a reduction of sentence in the case of all the accused; that is to say, to confirm the convictions only and the sentences inflicted on the accused, in consequence of their convictions by the Jurors.
5. I must then proceed to the charge to discover if that is open to any of the objections that have been argued . before me by Mr. Ethiraj with regard to it.
6. Three points have been urged as necessary in a charge of this description; and this necessity has been frankly admitted by the learned Public Prosecutor. They are (1) that the defence of each of the accused should be considered, (2) that the common object must be set out and (3) that the case against each of the accused must be considered separately. With regard to the first of these points, it has been practically abandoned. D. Ws. Nos. 1 and 2 gave evidence as to alibi on behalf of the first accused and that question has been specifically dealt with in the charge. The other four defence witnesses do not support any of the accused in particular. They, I understand, speak generally as to the complainants beginning the quarrel. As to the common object it is, in my opinion, very fully set out in the beginning of the learned Judge's charge to the Jury. It begins by saying that the 13 accused are charged with forming themselves into an unlawful assembly with the common object of taking the marriage procession through non-Nadar street, etc. He then explains that, if several persons had the common object of ' throwing stones, so as to hurt their opponents and their opponents were hurt by the stones, the prosecution need not prove who actually threw the stones. Then he says that accused Nos. 8, 11 and 13 are charged that in furtherance of the common object they committed theft of a cart and so on throughout the charges. It is pressed that the charge with regard to dacoity has not been properly explained by the learned Judge, in that he says: ' Then in the same way accused Nos. 1, 4, 6, 7, 10 and 12 are charged with having committed robbery in the house of Kamakshi Ammal inasmuch as if five or more persons commit robbery it is called dacoity, they are charged with dacoity.' Mr. Ethiraj lays special stress on the fact that the learned Judge should have said that, if five or more persons commit robbery conjointly, it is called dacoity, etc., and that this omission of the word 'conjointly' is fatal to the validity of the charge on that point. Again, the learned Judge, when he comes to the end of his charge on the consideration of what may be called the crimes consequent on the unlawful assembly and the rioting, namely, arson, theft, shooting, dacoity, stealing, etc., says this:--'If you find that these isolated incidents are true by incidents' he means the crimes which occurred at or about the time of the rioting and did occur, then you must consider whether they were in prosecution of the common object of the assembly or whether most of the Nadars simply intended to take this marriage procession through the streets and had no intention of committing any crimes, because if crime in this case was not the common object of the assembly, then only those persons would be actually guilty who committed the acts: If, on the other hand, crime was their common object, they all would be guilty whether they actually committed the crimes or not.' Really it is an explanation of what he said in the early part of his charge. So then with regard to the common object, I think the case was quite sufficiently placed before the Jury and so was the explanation of the law thereof. With regard to the omission which does occur of the word 'conjointly' I think it must be held that the learned Judge meant--and I think it may be assumed that the Jury understood that he meant--that, if five or more persons committed robbery together in a body it was dacoity. I do not see why we should assume that the Jury would be misguided so as to think that, if five different robberies were committed in five different parts of a town by five different people or in five different towns for that matter, it would amount to the distinctive offence of dacoity. Therefore, I think so far there is nothing in the objections that have been made to the charge.
7. The third point is perhaps a more important one, and that is, that the case against each of the accused has not been considered separately in the charge; that is to say, althought as pointed out, by the learned Public Prosecutor, the separate crimes so to speak are all set out and the accused involved in them are also mentioned, the evidence against each accused separately has not been dealt with by the Judge. The charges that were before the Jury were theft, house-breaking, dacoity and the last charge.
8. With regard to these charges, the theft of the box, etc., that is to say, the 5th paragraph of the charge, the accused involved are set out as being accused Nos. 2, 5 and 7 and the evidence against them is said to be of Periakamakshi Reddi, P.W. No. 18. Karupayee's evidence (P.W. No. 13) is also referred to and some explanation of hers about how the house door was opened is also placed before the Jury. The learned Judge points out: 'There seems to be a confusion about the door and the box.' But if you believe her story it would be proof against the 2nd, 5th and 7th accused that they committed house-breaking.' The learned Judge goes on;--'Other witnesses say that they saw all this looking up Subba Reddi's street from the west and you can consider whether on that point they can be believed that they were there.' There seems to be nothing in the objection made with regard to this charge of theft.
9. With regard to the dacoity which is para. 6 of the charge, the evidence of Kamakshi Ammal, who is the 14th witness, is set out and she says that accused Nos. 4, 10 and 12 entered the house. The Judge asks the Jury to consider why, if they were looking in this fashion, they took only a box from Karupayee's house instead of the wholesale thefts that they made from Kamakshi's house. The Judge points out that she was corroborated by her granddaugter P.W. No. 15, Lakka Ammal. The evidence of the bandsmen, P.Ws. Nos. 6 and 7 is also put before the Jury. I cannot say that there is any misdirection with regard to this charge.
10. With regard to the theft of the cart which is the subject of para. 4 of the charge this involves accused Nos. 8, 11 and 13. The evidence of P.W. No. 16 is put before the Jury as also that of P. Ws. Nos. 12 and 18.
11. With regard to the last charge which is concerned with the common object and with the constructive criminal liability, the latter is a question of law, and the common object, I have already held, was sufficiently laid before the Jury. I have examined this matter in some detail and I think it is quite clear that with regard to the Jury charges, no valid objection can be urged to the Judge's charge. I have already dealt with the matter and the judgment.
12. Now the question is, what to do? It is, of course, open to me to direct a re-trial by the learned Sessions Judge on the non-Jury charges. But the learned Public Prosecutor strongly urges me not to do this if possible owing to the length of the time that has elapsed and the great desirability of not stirring up further faction in this very factious village. The learned Public Prosecutor conceded that there is very little evidence, if any, against the 9th accused on the charges of which he has been convicted. As a matter of fact, he was charged with all the others with rioting, etc, and with instigating accused Nos. 5 and 6 to set fire to the house of Peraisami Achary. This latter is an assessor's case and the accused were acquitted on the charge by the learned Judge who believed the evidence of P.W. No. 6 in preference to the prosecution, so that all that is left against accused No. 9 is the general charge under Section 147 and the only thing said incidentally against him is that 'the other accused had sticks.' He is, I am told, nowhere mentioned by name in the evidence and except with regard to the arson he is nowhere mentioned by name that I can find in the charge to the Jury. I, therefore, think that he well may be acquitted. I accordingly acquit him.
13. Difficulty has arisen with regard to accused No. 3. He has been convicted of rioting and of rioting with deadly weapons, an assessor's case. I having held that the judgment of the learned Judge is defective and he would in the ordinary course have to be re-tried. Mr. Ethiraj, however, who appears for him in order to avoid this does not press His objection, to the judgment with regard to this accused alone who has been sentenced on the whole to two years. With regard to the rest of the accused, as their convictions by the Jury are the only ones that now stand, their sentences are thereby automatically reduced to one year. I think, it would, under the circumstances, be unfair that the 3rd accused should have more severe sentence than they. I, therefore, the Public Prosecutor not objecting, reduce the sentence on the 3rd accused to one year.
14. Convictions in the case of accused Nos. 8, 11 and 13 by the Jury were for the theft of the cart already referred to. The actual criminal act was the moving of the cart for about 50 yards. Their sentences are with the rest automatically reduced to one year each. I think they may be further reduced by three months in each case so that the sentences on accused Nos. 8, 11 and 13 will be 9 months instead of one year. The fines will remain in each as also the order as to compensation.