Trevelyan and Banerjee, JJ.
1. In this case two persons have been convicted by a Judge and jury, and, of course, in accordance with the law, it is necessary for us to find a defect in the charge, or in some other portion of the procedure, before we can interfere with the conviction. On the question of sentence, however, that is in our hands.
2. The occurrence which led to this charge was a dispute about the possession of an orchard. It was claimed by Esaf, who is one of the appellants before us. The case of the prosecution is that the two appellants, with others, went to this orchard for the purpose of gathering the fruit of some mango trees growing there, and an altercation arose between them, and a man named Nidu, who was acting on behalf of the rival claimants to this orchard. In the end it is said that the accused Sabir struck Nidu on the head with a lathi, and that two days afterwards Nidu died. Sabir has been convicted under Section 304 of the Indian Penal Code of causing the death of Nidu, and there is no matter in the charge affecting his conviction under this section which can be impugned. The only question, so far as he is concerned, is the question of punishment. He has been sentenced to seven years' rigorous imprisonment. That, of course, is a very heavy punishment. There is in his or the circumstance that there was no premeditation before this attack was made. It was, apparently, the result of momentary excitement, and there was, so far as we know, only one blow struck. On the other hand, in the case of attacks or assaults where a blow so severe as to cause a man's death is given, and where weapons, which are in efficient hands unquestionably lethal, are used, it is impossible to inflict a light punishment. We do not think we would be erring if we were to reduce the sentence on Sabir to three years' rigorous imprisonment. We do not think we can reduce it to anything less, and accordingly we direct that the conviction be upheld and the sentence reduced to three years' rigorous imprisonment.
3. The case with regard to Esaf stands upon an entirely different footing. He has been convicted under Section 148 and Section 304, read with Section 149, of the Penal Code. It is not disputed that there is no case against him under Section 148 of the Penal Code. That section says: 'Whoever is guilty of rioting being armed with a deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, shall be punished,' etc., and so on. The learned Sessions Judge is under the impression, acting upon what he calls the analogy of Section 146 of the Code, that if one member of an unlawful assembly is armed with a deadly weapon, or a weapon of offence, the other members' of the assembly can be charged under Section 148. That is not so. It is only the actual persons who are so armed who can be charged under that section. The only way in which one person can be made liable for the acts of another is under Section 149. There being no case under Section 148, we think that the conviction is wrong under the latter section and must be set aside.
4. There is also, we think, no case under Section 149, read with Section 304. It was not really argued that the members of this assembly knew it to be likely that homicide would be committed in prosecution of the object of that assembly. With regard to the common object charged, as to which we shall refer presently, that is to say, the taking away the mangoes from the trees, the learned Judge has, we think, in his charge, extended the phraseology of Section 149 too far, and having regard to the part which Esaf is proved to have taken, assuming the evidence to be true, in this matter, we think it would be straining the law to apply to it the provisions of Section 149 and make him liable for the death of this unfortunate man Nidu.
5. Now comes the real question in the case, and it is the only question which has presented any difficulty to us. Although Esaf may not be properly convicted either under Section 148 or Section 149 of the Penal Code, still it is competent to the Court to convict him under another section, which is one of the component parts of Section 148, namely, Section 147. As there was a conviction under Sections 148 and 149, it was unnecessary for the Judge to take the verdict of the jury under Section 147, but if there had been an acquittal under those sections, the Judge would have been bound to take their opinion as to whether Esaf was guilty of rioting, and, therefore, guilty under Section 147. It follows that; before we can acquit him altogether, we are bound to see whether he is entitled to an acquittal under that section also.
6. The objection made on his behalf to his being convicted under that section arises from the allegation of the prosecution, and the charge made, and the charge of the Judge, with reference to what is stated to be the common object of the assembly. In the charge upon which he was tried there is, apparently, a reference made to the common object of this assembly being to take the mangoes. It is pointed out by the learned Counsel that, though it is not drawn very artistically, that is what the charge means, and practically says. The learned Judge, in his charge to the jury, with reference to this question, after going into other matters, to which it is not necessary here to refer, says this: 'If you find that Kunjo Babu, that is the rival claimant, was in possession of the orchard, and if you find that these two accused with others, amounting to five or more in number, went to this orchard to gather the mango fruit there, and to enforce a supposed right to such fruit by Esaf, you can conclude that in so doing these two accused, and the others with him, were then members of an unlawful assembly, because you can safely consider such act on their part to be calculated to cause wrongful loss, and annoyance to Kunjo Babu and to be criminal trespass.' That so far is perfectly right, and in accordance with the charge. The Judge goes on to say: 'The next question is, was any force used by any member of such assembly in furtherance of that common object, i.e., in taking away the mangoes? This depends upon how far you believe the evidence for the prosecution, which is to the effect that when Nidu protested, some one called out to bring his head to him, whereupon Esaf, Sabir, and the others surrounded Nidu and Bakhar, and Sabir struck Nidu with his lathi on his head with such force as to fracture his skull and so cause his death. If you accept this evidence and find that Sabir then struck Nidu on the head with his lathi, you will also find Sabir and Esaf guilty, as charged, of the offence of rioting with a deadly weapon.'
7. Then he goes on: 'On the next charge you must be satisfied that Sabir struck Nidu this blow which killed him, and that it was struck in furtherance of the common object of the assembly then, and that Esaf knew that in accordance with the general object such blow would probably be delivered. This again depends on whether or not you believe the evidence that this blow was struck by Sabir. With regard to Esaf, it is not denied that he was present on the occasion, but it is urged that he is in no way responsible for what happened to Nidu. What was then the general object of this assembly?' He then goes on, and this is an important part of his charge: 'If you believe the evidence, it was to carry out the order to bring Nidu's head, because he prevented Esaf and the others from taking these mangoes, the purpose for which they had assembled.' So we have here the Judge directing the jury that the general object of the assembly was to carry out the order to bring Nidu's head, the general object at that particular time. At first the general object was to take the mangoes, but as the proceedings developed, the object changed to one to injure Nidu, for, of course, the words do not really mean to bring his head, but to injure him.
8. Now, the jury having convicted under Sections 148 and 149, before we can say that there ought to be a conviction under Section 147, we must be satisfied that the jury have found an unlawful common object. It is impossible for us to say, on the findings, whether they have given their verdict upon the unlawfulness of the common object to injure Nidu, or the unlawfulness of the common object to take the mangoes. It may well be, and, in dealing with these matters one is bound to consider the matter most favourably to the accused, that they preferred to accept the view that the common object was to injure Nidu, inasmuch as it did away with the necessity of coming to any conclusion on the question of the possession of the orchard. If they found that the common object of the assembly was to injure Nidu, that would be enough, and they need not find the other. But there is no charge whatever on this head; an entirely different common object has been charged,
9. Our attention has been called to Section 225 of the Code of Criminal Procedure, which provides that 'no error in stating the particulars required to be stated in the charge, and no omission to state those particulars, shall be regarded at any stage of the case as material unless the accused was misled by such error or omission.' In a case of this kind there may be evidence of a variety of common objects, but here, so far as we can see, it is impossible for us, on the evidence as it stands and having the charge there is at present, to say that the jury accepted either one or the other of those common objects. They accepted one, it is true, but which one they accepted it is impossible for us to say. It may make a difference in the case if, as a matter of fact, they accepted the case that the common object was to injure Nidu. But that was a common object that was never charged at all, and the accused person had no opportunity of meeting it. Of course, the finding of the jury with regard to the common object may have very great effect upon the seriousness of the crime and, therefore, on the punishment.
10. In the result, we think we are bound to set aside the conviction of Esaf, but we think that this case is not one which we can deal with ourselves, and we accordingly direct that it be retried under a properly framed charge under Section 147 of the Penal Code, and that, until the trial, the accused Esaf be released on bail to the satisfaction of the Magistrate.