1. The appellants have been convicted of rioting and sentenced under Section 147 of the Indian Penal Code to two years' rigorous imprisonment each. There can be no doubt that on the 23rd of November last a serious fight took plane between the appellants on one side and the principal prosecution witnesses in this case on the other. Men of both parties were separately Bent up for trial on charges of rioting and other offences. The trial of some men of the complainant's party resulted in their acquittal and the trial of seven men of the appellant's party resulted in the acquittal of one of the seven and the conviction of the others as stated above.
2. From the portions of the evidence that have been read to us there seems to be very little doubt that what really happened was a mutual fight between the two parties, very probably pre arranged. But in reporting the matter to the Police both parties tried to make out a case of pure aggression by the other side. According to the accused, the occurrence took place at or near what is described as Atkayari plot and the actual beating is said to have taken place at a point marked 'A' in the Police map Exhibit 3, According to the prosecution, the occurrence took place at a spot marked 'a' in the map about half a mile to the east of the other plot. Every thing seems to point to the real occurrence having taken place at neither of these places. The jury, however, have expressly found that the occurrence took place at the spot where the prosecution witnesses say it did. It is contended and we think fairly contended that in coming to this conclusion the jury were not properly directed by the learned Sessions Judge. Several points in favour of the case for the appellants have been put to us by the learned Pleader who has appeared before us for them, But we do not propose to deal with these points seriatim. In judging the charge to the jury one cannot say that there' has been misdirection because every point in favour of the accused has not been put to the jury. The charge must be judged as a whole, and one must see whether judging it as a whole, the case for the two sides had been fairly put so that the jury can understand what they have to decide and came to a right Conclusion. What we find in the present charge is that it was never suggested to the jury that both the case for the prosecution and the case for the defence might be false. To exemplify this we may take one of the several points urged. In his comments on the evidence of the investigating Police Officer, the learned Judge remarks Ha (the investigating Police Officer) did not see any marks of struggle etc., on any of the spots where the occurrence is located by either side and in their vicinity.' In the first place there is a positive misdirection in saying that the investigating Officer found no marks of struggle in the vicinity of the place of occurrence as pointed out by the appellants. Both the map and his evidence show' that marks were found in plots marked II and III which are very near to the plot marked, 'A.' What we think is more serious in this connection is that the, evidence of the investigating Officer that he found marks of occurrence at other places than those alleged by the two parties, plots A' and a', was not put to the jury. One cannot but think that if this view of the case had been put to the jury it was very unlikely that they would have come to the finding that the place of occurrence was that described by the prosecution. There are several other matters which make it extremely improbable that that part of the prosecution story is true. Some of these have been put to the jury in the charge. But they have been put more from the point of view that the jury had to consider whether the place of occurrence was at' a ' or' A' and not from the point of view whether the prosecution had succeeded in proving the place of occurrence at a' and not anywhere else.
3. Also we cannot entirely approve of the manner in which the learned Sessions Judge has dealt with the discrepancies and contradictions in the statements of the prose(sic)antion witnesses in his charge He referred the jury to the speech of the learned Pleader for the defence. It is not necessary for him to repeat every thing that has been said in such a speech. But he ought to have drawn the attention of the jury to the more essential items and the strongest argument that had been advanced for the defense. A mere reference to the arguments of the Pleaders was insufficient.
4. Taking the charge as a whole we are not satisfied that the issue before the jury was properly understood by them. Taking this view we cannot uphold the conviction and we do not think, having regard to all the circumstances of the case, that any useful end would be served by ordering a re-trial. We accordingly allow this appeal and set aside the conviction of the appellants and direct that their bail-bonds be discharged.