1. This is an appeal against convictions and sentences Under Sections 148, 147 and 325/34, Penal Code. Twelve persons were placed on their trial before the Additional Sessions Judge of Dacca and a common jury of five. The charges against them framed by the Sessions Court, were that they were members of an unlawful assembly the common object of which was severely to assault Khan Sahib Samsuddin Ahmed, that they were armed with deadly weapons and thereby committed an offence punishable Under Section 148, Penal Code; secondly, that they attempted to murder Khan Sahib Samsuddin Ahmed and thereby committed an offence punishable Under Section 307, Penal Code; thirdly, that they in furtherance of the common intention of all namely severely to assault Khan Sahib Samsuddin Ahmed voluntarily caused grievous hurt to him and thereby committed an offence punishable Under Section 326/34, penal Code. The charge framed by the Magistrate was dropped. The jury were unanimous in their verdict. They found five of the accused persons Kushai, Abdus Salam, Nawabali, Ledu and Falania not guilty of any offence. They found Karamali Sikdar, Boul Sikdar alias Abdul Hai and Kalu guilty of rioting being armed with deadly weapons and guilty of causing grievous hurt Under Section 325/34, Penal Code. They found four others namely Imanali Sikdar, Rokman Ali, Yakub and Budhai guilty of rioting Under Section 147, Penal Code, and guilty of voluntarily causing grievous hurt Under Section 325/34, Penal Code. The learned Additional Sessions Judge accepted the unanimous verdict of the jury and acquitted Nawabali, Faloo, Kushai, Salam and Ledu Sheik. He convicted Karamali Sikdar, Boul Sikdar, Kalu and sentenced them each Under Section 325/34, Penal Code, to undergo rigorous imprisonment for three and a half years and Under Section 148, Penal Code, to undergo rigorous imprisonment for two arid a half years. He convicted Imanali Sikdar, Rokman Sikdar, Yakub and Budhai of voluntarily causing grievous hurt and sentenced them each Under Section 325/34, Penal Code, to undergo rigorous imprisonment for three and a half years and he convicted them also of rioting and sentenced them each Under Section 147, Penal Code, to undergo rigorous imprisonment for two years, the sentences in the case of all the seven accused persons were to run concurrently. The seven accused persons have appealed against those convictions and sentences.
2. The case for the prosecution briefly is that Khan Sahib Samsuddin Ahmed had been the President of Hazratpur Union Board for 10 or 12 years. Towards the end of 1941 new elections to the Union Board and new election of the President of the Union Board became due. Khan Sahib Samsuddin Ahmed stood as a candidate in all the three wards of the Union Board and he was opposed in all the three wards. There was brisk canvassing and feelings ran high. The local Circle Officer anticipated trouble at the time of the elections and asked that armed police should be present when the elections were held. The election had to be postponed and canvassing continued up to the end of 1941 and during the opening weeks of 1942. In December 1941 Khan Sahib Samsuddin Ahmed complained to the police that some of his opponents were threatening the people in the locality to prevent them voting for and supporting him. On 9th February 1942 Khan Sahib Samsuddin Ahmed accompanied by a few followers went out canvassing. In the afternoon of that day he went with his followers towards Talipur village partly for the purpose of canvassing and partly for supervising an enclosure which was to be erected there. After making certain enquiries at Talipur he proceeded thence towards village Niltek. As he was on his way he heard a cry that people were approaching to assault him. He turned back and found a group of people, 30 or 40 in number, approaching to attack them. Among the 30 or 40 people approaching were the seven appellants. Imanali appellant struck the Khan Sahib on the back with a lathi. Karamali Sikdar appellant struck Khan Sahib on the right leg with a lathi whereupon the Khan Sahib fell on the ground. The other appellants then struck him in various parts of the body. Two of his companions succeeded in warding off some of the blows, and one of these companions stood over the Khan Sahib after the latter fell to the ground and warded off blows with the lathi which he was carrying. At this stage Karamali Sikdar appellant gave orders to his son Boul appellant whereupon Boul struck the Khan Sahib on the right side of the neck with a big dagger. The Khan Sahib grasped that dagger in his two hands and in so doing received injuries on his thumb and finger. Korban Dhali and Forman Dhali, Khan Sahib's followers pushed Boul Sikdar back. At this stage Karamali took a chen dao from the hands of Kalu appellant and struck Khan Sahib a blow therewith on the right side of the head. Thereafter the Khan Sahib and his party began to run away. As people working in the fields approached, the accused also fled to the west. Khan Sahib Samsuddin Ahmed was taken home and was ultimately attended by a doctor at his village home and subsequently sent to the Mitford Hospital for treatment and medical examination. (After referring to the medical evidence and to the evidence of alibi of certain accused the judgment proceeded.) None of the other accused offered any evidence to show that they could not have been present at the place of occurrence. These other accused, therefore, relied on the defects of the prosecution case and argued that the evidence to establish their presence was unsatisfactory, unreliable and unconvincing. Before drawing our attention to any alleged misdirections in the charge to the jury Mr. Carden Noad for the appellants drew our attention to the nature of the evidence against the accused Karamali Sikdar, Faloo alias Falania and Ledu Sheik and again to the nature of the evidence against Abdus Salam and Budhai. Mr. Carden Noad argued that the evidence against Karamali Sikdar, Faloo and Ledu Sheik was almost identically the same. The same witnesses implicated these three accused persons. The same witnesses described the occurrence and ascribed the same part to these three accused. Moreover, the same defence witnesses deposed to the same alibi for these three accused persons. D.Ws. 1 to 5 all asserted hat these three accused persons were at Kaladia H. E. School throughout the day on 9th February 1942. Mr. Carden Noad argued that the evidence for and against these three accused persons is indistinguishable; yet the jury have found the accused Karamali Sikdar guilty and have found the accused Faloo alias Falania and Ledu Sheik not guilty. Similarly with regard to Abdus Salam and Budhai one witness only deposed against these two accused persons. His evidence against them in the same. It is impossible from his evidence to distinguish between the two accused persons. No defence witness was examined on behalf of either of these two accused persons. Each of them asserted that he was elsewhere at thetime of the occurrence. Neither of them made any attempt to prove that his assertion was true. In respect of these two appellants Mr. Carden Noad has contended that the evidence is indistinguishable; yet the jury have found Salam not guilty and nave found Budhai guilty Under Section 147 and Under Rule 325/34, Penal Code. From these facts Mr. Noad has argued that the jury in fact made a confusion in their verdict and that the verdict as given by them does not represent their real opinion. Mr. Carden Noad went further and suggested that this view was clearly enertained by the learned Additional Sessions Judge himself. To support this contention Mr. Carden Noad view our attention to the last question put to the jury when their verdict was obtained. The question is: Have you made any confusion as to names?' The answer was 'No'.
3. It has been argued before us and strenuously argued that in view of the facts stated above the jury made a confusion as to the names and that the verdict given by them does not represent their true verdict. We are enable to accept this contention. The mere fact that in the written record the evidence against two persons seems to be the same does not mean that the impression created by the witnesses on the mind of the jury necessarily the same with respect to the two accused persons. The manner in which the witnesses deposed as they implicated one or the other may have varied. the opinion formed by the jury from the appearance of the accused may have had some effect. It seems to as impossible to argue that because the written record seems to be the same with regard to two different accused, the jury in distinguishing between the cases of those two accused must necessarily have been in a state of mental confusion. In any case so far as the present accused is concerned, this argument is scarcely applicable at all events to the case of Karamali Sikdar. There was one important piece of evidence against Karamali Sikdar which was not present in the case of Faloo alias Falania and Ledu Sheikh. It was the case or the prosecution that Khan Sahib Samsuddin Ahmed lost consciousness shortly after the occurrence and did not regain his senses until about. 9 P. M. When he regained his senses the Circle Officer was present and questioned him. The Circle Officer deposed that Khan Sahib Samsuddin Ahmed then described the occurrence and named 8 or 10 of his assailants. The Circle Officer was not able to remember the names of any of these assailants except Karamali Sikdar. The Circle Officer was; definite that Samsuddin Ahmed immediately after recovering consciousness named Karamali Sikdar as one of his assailants. In view of this evidence it is impossible to argue that the jury had no reason for distinguishing between the cases of Karamali Sikdar and the cases of Faloo alias Falania and Ledu Sheik.
4. Mr. Carden Noad next argued that there were misdirections in the charge to the jury. The alleged misdirections will be considered seriatim. In the first place Mr. Carden Noad drew our attention to the evidence of two choukidars Mongal Chowkidar, P. W. 15 and Gobinda Mondal Chowkidar, P.W. 16. Mongal Chowkidar deposed in his cross-examination as follows:
I know some of the accused from before. I did not see the accused other than Akubali and Kalu. I do not know the other people who came with Kalu and Akub Ali. I knew Karamali, Nawabali from before and no other accused.
Gobinda Mondal Chowkidar deposed in his cross-examination: 'I saw only Kalu (accused) of village Khana Kandi amongst the assailant party. I did not see Nawabali Hazi. I know Karamali Hazi from before. I did not see him there.' In dealing with this evidence the learned Judge addressed the jury as follows: 'It has been argued that the evidence of the two chowkidars that they recognized only Yakub alias Akubali and Kaloo and no other men raises a strong suspicion that the accused Karamali, Nawabali and others were not there. These chowkidars admit that they knew Karamali and Nawabali from before. You will consider this point.' Mr. Carden Noad has argued before us that this is an inadequate presentation of the evidence of the two chowkidars and that the learned Judge ought to have emphasised the evidence more strongly and to have pointed out that the evidence of these witnesses if true was sufficient to establish the innocence of Karamali Sikdar and Nawabali at least. I am not impressed by this argument. The learned Judge dealt with the evidence of these two witnesses in cautious and restrained language. He might easily have placed before the jury arguments suggesting that these chowkidars who asserted that they could not recognise well-known people in the locality in broad daylight might have been suppressing the truth. He might equally have emphasised the evidence more strongly in favour of the accused as Mr. Carden Noad has suggested. But the fact that he has contented himself with placing the evidence and has avoided extreme or over-emphatic language does not in my opinion amount to a misdirection.
5. Mr. Carden Noad then drew our attention to the evidence of the main prosecution witnesses to the occurrence namely P. W. 1 Khan Sahib Samsuddin Ahmed, P. W. 3 Korban Dhali, P. W. 4 Forman Ali Dhali, P. W. 7, Wahid Ali, P. W. 11 Syed Aulad Hossain alias Fagad Mia and P. W. 12 Mohamad Jan and argued that these witnesses have given not merely substantially the same description of the occurrence but have given descriptions which agree in so many details that it must be held that their evidence was given in parrot fashion each repeating the same story. Mr. Carden Noad contended that the learned Judge ought to have told the jury that evidence given in such a parrot fashion is not reliable and should be distrusted. Here, again, the fact that the written record of the evidence of each witness bears a strong resemblance to that of each of the other witnesses does not necessarily mean that the witnesses were deposing in parrot fashion. These witnesses deposed in answer to questions put to them by one who desired to elicit from each of the witnesses all the important details. The evidence was recorded by a Judge who had heard the whole story given and knew the details which were considered relevant. In these circumstances it is not strange that the details should have been obtained from the various witnesses in the same Order and recorded in the same order. The fact remains that the learned Judge did not note with regard to the evidence of these witnesses that they deposed in a manner which suggested that they were all reciting the same story, and in the absence of anything to indicate that the learned Judge himself thought that they deposed in parrot fashion it seems to me unreasonable to argue that the learned Judge ought to have told the jury that such was the method of their deposition.
6. Thirdly, Mr. Carden Noad drew our attention to the fact that four persons were named as witnesses to the occurrence in the first information report who were not examined as witnesses in the Court of Session. Mr. Carden Noad has argued that the directions given by the learned Judge regarding the non-examination of these witnesses was insufficient. On this point after drawing the attention of the jury to the evidence showing that these persons had been named as material witnesses and drawing their attention to the fact that they had not been examined as witnesses the learned Judge then gave the explanation which had been offred by the prosecution for the non-examination of the witnesses. He observed as follows:
7. 'The prosecution explains that as Ekabbar, Muksbudali, Ayetali and Nadu were not actually present at the time of assault and as they are also related to the accused party they have not been examined.' The learned Judge proceeded to give the evidence on record regarding the relationship between these persons and various members of the accused party. Having done so he explained the law on the subject in these words: 'The law on this point is that no particular number of witnesses is required to prove a fact. It is the quality of evidence and not quantity that counts. But all material witnesses must be examined and if any such is left out without any sfficient explanation you may draw a presumption that such witness if produced, would not have supported the prosecution case. If, however, the case loses nothing by his absence no presumption adverse to the prosecution need be drawn. As to whether a particular witness is material or not or whether the explanation of the prosecution for not producing any material witness is sufficient or not, you are the sole judges.' There can be no doubt that the learned Judge gave a correct exposition of the law. Mr. Carden Noad's objection to this exposition is that in addition to giving a correct explanation the learned Judge added this sentence. 'If, however, the case loses nothing by his absence no presumption adverse to the prosecution need be drawn.' Mr. Carden Noad has argued that the inclusion of this sentence in the explanation destroys the value of the explanation given and is in itself a misdirection. The sentence in English is not easy to understand and it must be remembered that the charge to the jury was given in Bengali and consequently the actual sentence was almost certainly in other words. I am not satisfied that the inclusion of this sentence in the explanation when the rest of the explanation is obviously correct and complete amounts to a misdirection.
8. Mr. Carden Noad next drew our attention to the learned Judge's references to the evidence of alibi given on behalf of the accused. The learned Judge suggested to the jury that the mere fact that an accused person was proved to be at a place 2 or 3 miles distant from the scene of occurrence an hour before the occurrence took place was not inconsistent with his having taken part in the occurrence. Mr. Carden Noad asks us to hold that from the nature of the occurrence it could not have been premeditated and that therefore as the accused could not have known where their victim was to be at 4-30 P. M. on 9th February 1942, they could not possibly have been at a place 2 or 3 miles from the scene of occurrence at 3-30 P. M. and have taken part in the occurrence at 4-30 P.M. This is an argument which might reasonably have been addressed to the jury. But the omission of this particular argument from an otherwise satisfactory charge can scarcely be held to be a misdirection. Mr. Carden Noad then drew our attention to the evidence of P. W. 3 Korban Dhali who admitted that he was short-sighted and that he was unable to identify the accused persons from a distance of 8 or 10 cubits though he was able to identify thern when he went close up to them. Mr. Carden Noad argued that the learned Judge ought to have drawn pointed attention of the jury to this evidence and asked them to distrust the evidence of identification given by this witness. This witness is Korban Dhali, the person who is said to have stood over Khan Sahib Samsuddin Ahmed during the attack. If his description of the occurrence is true, the people whom he recognised must have been in close contact with him during the occurrence and there seems to be no reason why he should not have been able to recognise them during the occurrence. The mere fact that he was short-sighted and unable to recognise people at some little distance away does not seem to me a fact of such importance that the learned Judge ought to have emphasised it in his charge. These are all the criticisms which Mr. Carden Noad made of the charge to the jury. I am unable to agree that any of these indicates that there was a misdirection in the charge or that the verdict of the jury was erroneous on account of such misdirection. We have read the charge carefully. The charge is worded in cautious and restrained language. It is fair and in my opinion complete and it seems to me that the charge marshals the evidence fairly and puts a clear and correct view of the evidence before the jury. In my opinion, it is impossible to find serious fault with the charge or to hold that there is any misdirection in it. In this view the convictions must be upheld. (His Lordship then upheld the convictions but modified the sentences and concluded.) The appeal is disposed of accordingly. The appellants must surrender to their bail and serve out the remaining term of their sentences.
9. I agree.