1. The two appellants before us have been convicted by the unanimous verdict of a jury of offences under Sections 147 and 353 of the Indian Penal Code and they have, each of them, been sentenced to one year's rigorous imprisonment under the provisions of Section 147 and to the same sentence under Section 353, the sentences to run concurrently.
2. The principal matters urged before us on behalf of the accused with regard to the charge were as follows: First, it is said that there was misdirection as the law was not explained under Section 353. This point, however, was abandoned, as clearly at page 17 of the copy of the charge, which is before me, the law under Section 353 is explained to the jury. But the point, it appears, was taken under a misapprehension and having regard to the omission of a passage of the charge from the copy of the charge supplied to the learned Counsel for the appellants. The second point urged was that there was misdirection owing to the case of the individual accused not having been placed before the jury and it is urged that the offence with which they were charged and of which they were convicted under Section 352 is essentially an individual offence and that accordingly the learned Judge in charging the jury should have placed before them the evidence that there was against each of the accused separately. It is further stated that when the learned Judge does explain to the jury the law under Section 353 he tells them that the offence would be complete if the Sub-Inspector and his party were deliberately pushed by these two accused persons, but it is said that he has failed to tell them that there was no evidence given by any witness for the prosecution that the two appellants actually pushed the Sub-Inspector and his party. Thirdly it is said that the learned Judge erred in his charge to the jury because he left it to them to find out the common intention and the common object, instead of asking them, as it is said he should have done, if the common object charged was proved and reference was made to certain passages in the charge, which are at page 18 of my copy, where he asked the jury what was the common object of the assembly at the cross-road and also to a passage at page 24 of my copy where he asked the jury to decide what the common intention of the mob at the crossing was; and this point has been somewhat amplified by the learned Counsel for the accused, who laid stress on the fact that the common object could only be of obstructing and assaulting whereas the learned Judge is said to have used in his charge to the jury other words such as: 'resisting, disturbing and overawing public peace.' It is said, so far as the charges of obstruction and assault are concerned, that the accused have been acquitted under Section 152 which deals with obstruction. That they also have been acquitted of offences under Sections 332 and 333 which deal with assault, and it is, therefore, said that) the jury may have been misled by the words which the learned Judge used in his charge and that the conviction may have taken place owing to this misdirection.
3. Then criticism is directed to the reference made by the learned Judge in his charge to the sections of the Police Act. It is said that this Act was not invoked by the accused and that) the learned Judge may have confused the jury by his reference to certain sections of that Act. Next, it is said that the Judge was wrong in referring, as he has done, to the fact that no written statement was filed and in stating to the jury that the only thing that was in writing which had been proved was the bail petition which concerned Abdul Gani and Abdul Gani alone and that it had little bearing on the present occurrence. A farther criticism is directed to the points raised in the grounds of appeal under the heading V, Sub-clauses ' f ' and ' k', it being stated that the learned Judge should not have charged the jury as he did that it was dangerous to lay stress on the fact of the lack of education and fanaticism of the assembly in the absence of evidence whether the assembly consisted of educated and fanatic persona or not. An objection is also taken to the words set out in paragraph V (k) of the grounds which I need not refer to in detail. It is not, I think, necessary to deal in detail with all these points.
4. So far as the matters set out in para graph V (b), (f) and (k) of the grounds are concerned those seem to us very small matters and we do not think that even if they are objectionable from the point of view of the accused there was any real likelihood that the jury would have been effected by matters of that kind.
5. So far as the reference to the Police Act is concerned we think that the learned Judge was bound to make some reference to that Act, It is true that the Act was not invoked by the accused in their favour but it does appear that the licenses given to the Moharrum procession, in the course of which the riot took place, were licenses given under the provisions of the Police Act, and having regard to the fact that this matter was before the jury it was necessary for the learned Judge to give some explanation to the jury as to why a license was necessary for this procession and why the various things which were done. In She course of the procession might have become illegal, and, therefore, we do not think that it was wrong for the learned Judge as he has done, to refer to the clauses of the Calcutta Police Act, and we do not think that any real criticism can be directed against the manner in which he has referred to these clauses. If any criticism at all can be directed under this head it will be, we think, against the somewhat lengthy reference made to those sections but it is impossible from merely reading the heads of the charge to know whether the learned Judge's remarks were unduly lengthy on this point or not. After all a matter of this kind should be laid before a jury in extenso rather than in a brief form which might cause doubt and difficulty to their minds.
6. So far as the cases of the individual accused are concerned, we do not think that there is much in that point. After all, of the three persons charged, one of whom was acquitted, all were charged with offences arising out of the same set of circumstances. Therefore, we do not think that; the jury are likely to have taken a wrong view, or to have come to a wrong conclusion because the separate-matters proved against the two accused who are before us were not placed before them.
7. There remains the point upon which most stress has been laid and which we think did present some difficulty, namely, with regard to the way in which the common object was placed before the jury. But after all, one has got to remember that a caramon object may change in the course of an occurrence.
8. A crowd may have a common object at one time and may have another common object as things develop and it may well be that there are various common objects in the course of an occurrence, and these all have to be placed before a jury for the jury to decide, if any of them has been proved against the accused and if so which of them. Now it seems to me that although there are the two passages at page 18 and at page 24 of my copy of the charge, to which we have already referred, the learned Judge really does define for the jury the common object which they had got to consider, and he defines it in these terms at page 20 of the copy of the charge which is before me.
9. He says 'The Crown case, therefore, is that the mob had a premeditated object of disturbing the public peace and resisting, obstructing and overawing the police by criminal force and assaulting the police.' Now a reference to Section 141 of the Indian Penal Code shows the various common objects which make an assembly of five or more parsons an unlawful assembly are (1) to overawe by criminal force or show of criminal force any public servant, (2) to resist the execution of any law and (3) by means of criminal force or show of criminal force to compel any person to do what he is not legally bound to do or omit to do what he is legally entitled to do, and reference is also necessary to the 3rd act of common object there stated. This being so, we have got to consider whether the passage to which we have referred really goes beyond the common objects set out in Section 141 so as to prejudice or to have been likely to prejudice the Jury in coming to the conclusion at which they arrived. We do not think after careful consideration that any real objection can be taken to the way in which the common object was placed before the Jury. It is true that certain words have been used which do not specifically occur in the instanced set out in Section 141. But after all, taking them as a whole they do not seem really to go beyond what is in substance sot out in this section and the result is that we do not think that there was any likelihood of the accused having been prejudiced by the way in which the common object was placed before the Jury in the charge of the learned Judge.
10. Lastly, we are asked to interfere on the ground of sentence. But after all, the matter was a serious one. At the time of religious festivals there is a grave risk of the public; peace being endangered by matters such as arose in the course of the present occurrence. Some akaras had assembled and others were assembling at the cross-roads and there seems to me no doubt upon the evidence that in spite of the orders and endeavours of the Police the accused were making their way with their akaras towards a Hindu temple where Ramayan had been sung on the previous evening. So far as the individual accused are concerned, we do not think that it is disputed that they really were the persons who were in charge of some of the akaras and who were, therefore, doubly responsible for what happened on that occasion. Under the circumstances, we are not prepared to say that the sentence of one year's rigorous imprisonment that has been passed upon the accused is unduly severe or is a sentence which under the circumstances, we ought to reduce.
11. For these reasons the appeal is dismissed.