1. The two appellants, Mofezuddi and Aizuddi, were placed on their trial before the learned Sessions Judge of Backerganj and a Jury on charges of rioting and other offences. The jury found both the accused guilty of offences under Sections 148, 302, read with 149 and 302, read with 34, of the Indian Penal Code. In addition, Mofezuddi was found guilty under Section 323 and Aizuddi under Section 324, Indian Penal Code, and the learned Sessions Judge, accepting the unanimous verdict of the Jury, has convicted and sentenced the accused.
2. The case was a very serious one which resulted in the death of a man named Nehal-ud-din. Eleven of the accused's party were placed on their trial more than a year ago, and were convicted in the Sessions Court. On appeal to this Court) their conviction under section 302 read with Section 149, Indian Penal Code, was set aside and they were all sentenced to undergo three years' rigorous imprisonment under section 148, Indian Penal Code.
3. The objections taken to the learned Judge's charge in the present case on behalf of the appellants are as follows : It is said in the first place that the learned Judge was wrong in omitting to tall the Jury the offences of which the first batch of accused had been convicted. What ho said was this : 'In considering the case against the two accused I must ask you to put of your minds the fact that eleven men have already been convicted for their part in the affair, and you should take this case entirely on its own merits on consideration of the evidence which has been produced before you.' I think that was a proper direction. If the Judge had gone further and told the Jury the offences of which the first batch of accused had been convicted and the sentences that had been passed upon them, I fancy objection might very likely have been taken. His duty at that moment was to warn the Jury that the present accused must have a perfectly fair trial, and that the Jury were not to be biassed by the result arrived at in the previous trial.
4. Secondly, it is said - and this is the principal objection - that the Judge has treated the evidence of Jabanulla wrongly. He referred to the evidence of this man three times, and, on each occasion he said that Jabanulla overheard some members of the accused's party proposing to kill Nehal-ud-din. The common object stated in the charge was 'to beat Nehal-ud-din,' and our attention is drawn to the fact that, in his examination-in-chief, Jabanulla used the word 'beat' while, in cross-examination, he used the word 'kill.' the Bengali word which the witness actually employed is not given by the learned Judge. It appears to mo that, in addressing the Jury the Judge ought to have told them that Jabanulla did not say 'kill' each time, or that he used a word which is capable of a more innocent meaning. I think it is quite possible that this error misled the Jury in finding that the intention of the party was to kill Nehal-ud-din. Supposing however, that the Judge had reminded the Jury that the witness used the word 'beat' on one occasion, the Jury would I infer have come to the conclusion that the common object of the party was to cause grievous hurt to Nehal-ud-din.
5. The third objection is this : It is said that Mofezuddi did not himself inflict any injury on Nehal-ud-din and that, therefore, in finding him guilty under Section 302 read with Section 149, Indian Penal Code, there has been a double use of the principle of construction. It is said that those who caused the death of Nehal-ud-din are guilty by construction and, therefore, in applying Section 149, there is a second use of the principle. Our attention has been drawn to certain remarks in the case of the Empress v. Jhubboon Mahton (1882) 8 C. 739. To my mind, the question in this case is perfectly simple. All the particular individuals who struck Nehal may all inter se he equally guilty by virtue of Section 34, Indian Penal Code. But the commission of a murder is an act which is quite independent of Section 34, and if a murder is committed by any member or members of an unlawful assembly in prosecution of its common object, all the members become guilty by virtue of Section 149. On that ground, therefore, I think it is quite wrong to say that there has been a double use of the principle of constructive guilt. Lastly, it has been urged before us that there ought to be uniformity in the convictions and punishments. With that general principle, of course, I agree. But it is impossible to apply this principle in all cases where there are two trials - one original and the other supplementary - one batch of prisoners being tried by one Judge and one Jury and the other batch by a different Judge and different Jury.
6. These are the objections which have boon raised against the charge of the learned Judge in the present case. The only one to which I think effect should be given is the second, and taking the view I do that the learned Judge was in error in repeating three times that Jabanulla talked of a conspiracy to kill Nehal-ul-din, I think the conviction under Section 302, read with Section 149, Indian Penal Code, and similarly the conviction under Section 302, read with Section 34, must be set aside. On the facts, however, I have no doubt that the Jury would have arrived but for such mis-directions at the finding that the accused committed an offence under Section 326 read with Section 149, Indian Penal Code. I, therefore, find, both the appellants guilty under Section 326, read with Section 149, and direct that they do undergo rigorous imprisonment for seven years each. The convictions under Sections 148, 323 and 324, Indian Penal Code, with the sentences passed under those sections will stand the sentences to run concurrently.
7. I agree.