1. This Rule was issued calling upon the District Magistrate of Mymensing to show cause why the Criminal' Appeal No. 91(a) of 1923 filed in the Court of the Additional Sessions Judge should not be re-heard, or why such other or further order should not be made as to this Court may seem fit and proper.
2. When the rule came on for hearing the learned Vakil in support of the Rule was heard at considerable length. No cause was shown on behalf of the Crown. An explanation was submitted by the Additional District Magistrate of Mymensing, in which nothing was said about the question of the re-hearing of the' appeal.
3. It was urged on behalf of the petitioner that the learned Sessions Judge had failed to come to an independent decision of his-own upon the evidence adduced in this, ease and that his judgment was not in; accordance with law. The judgment complained against ran as follows : I had the misfortune to preside over the trial of the counter case. Appellants' pleader, however, declines to move for a transfer-
He argues that the lower Court's judgment is largely in favour of the accused, that it was not the appellants who had the main reason for enmity, and that the Court finds that complainant's party first attacked the appellants.
He also urges that the man shot was no enemy of the appellants. It is however not always the man actually aimed at who gets hit, while on the other hand when persons are roused, there is apt to be little discrimination between enemies and neutrals.
I have considered the medical evidence and I do not conclude that the alleged gunshot wounds are self-inflicted or anything but gunshot wounds.
It is urged with some reason that the man named as having fired the gun was admitted in appellants' ejahar to have been present, whereas he has brothers and had he been the culprit, he could have been omitted. This argument is not conclusive and in any case the lower Court's sentences make the matter one not worth discussing.
The lower Court's judgment is extremely carefully thought out and very reasonably fits in with the evidence given. I see no reason to differ from him, and no reason for upsetting his findings of a separate and successive riot nor his sentences.
The appeal is dismissed and appellants must surrender to their bail.
4. Section 424, Criminal Procedure Code, read with Section 367, Criminal Procedure Code, lays down what the contents of a judgment of any appellate Court other than a High Court should be, and it is argued that the judgment of the learned Sessions Judge in this case does not satisfy the requirements of the law. It is urged that where the law allows an appeal, the appellant is entitled to have from the Court of appeal that has to deal with them an explicitopinion on the question of fact involved in the case and that the Court of appeal should take its own view of the evidence after perusing the record. It is further urged that the judgment of the Court of appeal should be such that this Court an a Court of revision, might on looking into the judgment be in a position to judge for itself what the case was and how far the Court of appeal had considered the evidence as bearing on the guilt or innocence of the individual accused before the latter affirmed the judgment of the trial Court.
5. These propositions are incontestable. Applying the rules involved in these propositions in the judgment of the learned Sessions Judge in this case, it appears to-us that there has been no proper compliance by the learned Sessions Judge with the provisions of the law. Beading the judgment set out above, it is impossible to make out what the case was, in respect of which an appeal had been carried to the Court of the Sessions Judge. No doubt a few points which were urged before the learned Sessions Judge are noticed in his judgment, but taking the judgment as a, whole, it appears very doubtful, to say the-least, whether the learned Sessions Judges had really considered the evidence on the record, bearing on the guilt or innocence of the individual accused. We are not at all certain whether the learned Sessions Judge has not allowed his judgment to be warped by what he had come to know in the counter case to which reference is made by the learned Sessions Judge. In the case of a joint trial, the judgment of an appellate Court, dealing with the case of several accused, should show on the face of it that the case of each accused has been taken into consideration and should state, as has been observed in many cases by this Court, reasons, as far as may be necessary, to show that the appellate Court had devoted judicial attention to the case of each accused. We hold that the judgment of the learned Sessions Judge in this instance is contrary to these principles.
6. The case for the prosecution was that on 29th May, 1922, one Mahamadali and his brothers, Abedali and Sabedali, went to the house of one Imambux to dine thereon the occasion of the Id festival and that when they were about to start for home, they heard a cry outside the house of Imambux and found some 25 men armed with guns, daos and spears. The said. Mahamadali and Imambux advanced a little and protested, whereupon the accused No. 1, Inatullah Sircar, aimed a gun at Mahamadali and shot him on the thigh. Mahamadali fell down and the men.. of the attacking party ran away.
7. The case for the defence was that the accused were not guilty and that on the day of the alleged occurrence, the accused No. 1, together with his brother, Mahamadali, and another person, went to a village called Bhaluk Ghapra to dine at the house of one Debi Mandal on the occasion of the Id festival and that on their way home at a place near the houses of Fazar Mandal and Ali Mandal, some 25 men armed with various weapons came towards them and attacked the accused No. 1 and his two companions. The accused No. 1 and one of his companions ran to the house of Fazau Mandal for shelter, but the accused No. 1's brother Maharnadali was overtaken by the attacking party, composed of Mamudali and others and that Mahamadali was speared through the chest and that thereafter the attacking party fled. The accused No. 1's brother Mahamadali died in consequence of the wound. Mamudali and the men of his party were committed to the Court of Sessions, but were acquitted. It was suggested on behalf of the defence that in order to prevent the real facts from coming to light, Mamudali and the men of his party started the present case, which was a false one, against the accused.
8. In the trial Court 12 witnesses on behalf of the prosecution and 6 on behalf of the defence were examined. The learned trying Magistrate convicted the accused No. 1 under Sections 324 and 148, Indian Penal Code, and the rest of the accused under Section 1.18, Indian Penal Code, and sentenced the accused No. 1 to undergo rigorous imprisonment for three months under each of the sections, the sentences to run consecutively, and each of the rest of the accused to three months' rigorous imprisonment. [His Lordship then quoted certain extracts from the judgment of the trying Magistrate and proceeded.]
9. It is clear that the case against the accused was not free from difficulty and having regard to the judgment of the learned trying Magistrate, it was the duty of the learned Sessions Judge to consider fully the various, points referred to above in the judgment of the learned trying Magistrate. It is not necessary to go so far as to suggest that the learned Sessions Judge has not considered a single one of the above points, he has noticed a few points; but we are satisfied that the accused have not any assurance whatsoever from the judgment of the learned Sessions Judge that the evidence in this case bearing on the guilt or innocence of the individual accused has been judicially considered by the learned Sessions Judge and that adequate reasons have been given by the learned Sessions Judge for affirming the judgment of the learned trying Magistrate in the manner in which it has been done.
10. The memorandum of appeal contains 17 grounds; can we say that the important points arising on the memorandum of appeal and on the judgment of the learned trying Magistrate have been really considered by the learned Sessions Judge? The answer to the question is in the negative. We, therefore, make this Rule absolute and set aside the judgment of the learned Sessions Judge and direct that the appeal of the accused should be reheard by an officer other than the learned Sessions Judge, Mr. D. Vaughan Stevens.