1. The appellants are four brothers Anirudha Mana; Madchab Mana, Gopal Mana and Gobinda Mana. They were all found guilty under Section 147 and under Section 304 (second part) read with Section 34, Indian Penal Code and each of them was sentenced to undergo two years' rigorous imprisonment on the first count and ten years' rigorous imprisonment on the second count, the sentences to run concurrently.
2. The story told for the prosecution was this. On 28th November the complainant Baikanta went to out paddy grown by him on a plot of land which his father had bought many years previously from the aunt of the appellants. He had with him, ten labourers. The appellants and others interfered and when he persisted in cutting the paddy, they assaulted him and the labourers. The result of the assault was that three of the labourers Jitu Das, Kailash Pradhan and Naba Jana received Injuries which proved fatal.
3. The charges framed against the accused by the committing Magistrate were under Section 147 and Section 304, Indian Penal Code. The common object in the former was said to be that 'of causing hurt to Baikunta Panda and his men.' In the latter the names of the three dead men were inserted in one charge.
4. The learned Judge amended the charge under Section 304 by inserting the words 'in furtherance of your common intention, namely, to prevent Baikunta Panda from cutting paddy from his land and thereby' before the words 'committed culpable homicide,' and by adding Section 34 to Section 304, Indian Penal Code.
5. He also drew up three separate charges of culpable homicide, in regard to Jitu Das against Aniruddha, Gopal and Madhab, in regard to Kailash Pradhan against Gobinda and Madhab, in regard to Naba Jana against Gopal and Madhab. In each of these charges he referred to Section 34, Indian Penal Code and in formulating the charge he used these words 'In furtherance of the common intention of you all, to wit, to prevent Baikunta Panda to cut the paddy grown by him In the disputed plot.'
6. Objection is taken on behalf of the appellants to these charges, and also to the learned Judge's direction in regard to the meaning of Section 34, Indian Penal Code.
7. In my opinion the charges are thoroughly bad. On the allegations it was right that there should be a charge of rioting although I think that the common object was wrongly stated. The cause of the fray was the claim to the land, and the charge under Section 147, Indian Penal Code, should have dealt with that. This, however, is not the subject of the objection, and I merely mention it in passing.
8. After the charge of rioting there should have been charges in regard to the fatal injuries caused to each man, with reference to Section 149, Indian Penal Code, that is to say, there should have been charges under Section 302 and Section 304 and Section 825, Indian Penal Code read with Section 149 in regard to the injuries caused to Jitu Dass, another set of charges on the same lines in regard to the injuries caused to Kailash Pradhan, and a third set in regard to the injuries caused to Naba Jana.
9. Then there should have been charges against Individuals in regard to individual acts, that is charges of causing death, causing grievous hurt, or simple hurt, as the case may be. These charges would have enabled the Judge to advise the Jury as to the result of finding that possession was not with Baikunta, or of finding that the particular acts of violence lay outside the common object of the unlawful assembly.
10. Instead, however, of framing the charge in this well recognised form; and of using section which is obviously applicable, the learned Judge had recourse to a section which I think can hardly have been applicable on any view of the facts. More than this in making use of it he employs language which from the outset indicates a failure to understand its true purport, for the common intention which ho mentioned in the amended charge and the new charge was 'to prevent Baikunta from cutting paddy on his land.' The learned Judge has thus treated Section 34 as almost identical with Section 149, forgetting that Section 34 refers to 'a criminal act done by several persons in furtherance of the common intention of all ' while Section 149 alludes to an offence committed by any member of an unlawful assembly in prosecution of its common object.
11. Turning from the charges to the learned Judge's summing up I think his directions regard to the effect of Section 34 are at least defective. After reading and explaining the Section he said; ' This Section is framed to meet a case in which it is difficult to distinguish between the acts of the individual members of a party, or to prove exactly what part was taken by each of them. This is not very satisfactory, but perhaps the explanation which is not reproduced was better. Next in stating the points for decision he asked the Jury to decide whether in furtherance of their common intention to prevent Baikunta from cut-ting the paddy the accused caused death. He ought to have asked the Jury whether the injuries to Jitu, Kailash and Naba were criminal acts done by several persons in furtherance of the common intention of all. Later he asked the Jury to consider whether the acts were done in furtherance of the common intention to prevent Baikunta from cutting the paddy. Those are words which would have done fairly well for a charge under Section 149, Indian Penal Code, but they are inaccurate as applied to Section 34, Indian Penal Code for the latter Section refers to oases in which several persons both do an act and intend to do that act: it does not refer to oases like the present) where several persons intend to do one act such as preventing the cutting of paddy, and some one or more of them do an entirely different act.
12. The verdict of the Jury was that each of the accused was guilty under Section 304 read with Section 34 but they did not say whether their verdict was in regard to the collective charge, or one or more of the specific charges.
13. These remarks may seem to lay undue stress on mere technicality, so I wish to say why I think the faults I have mentioned were prejudicial to the aroused. The reason is this. There is no finding that each of the accused himself inflicted fatal injuries, or which of them did so; one of them at least has been found guilty of causing death constructively, although the Jury was not asked to determine whether the act, whichever it was, was done by several parsons, and although they have been told wrongly about that common intention. I feel no doubt that in this respect there has been prejudice.
14. There is yet another objection to the charges and the verdict. It is that Section 34 which is based on a common intention cannot possibly be use with the second part of Section 304 which expressly excludes intention. Personally I do not think that it could be used with the first part either, except possibly in very rare cases. However the point is that the Jury have found the accused guilty of committing culpable homicide by doing an act with the knowledge that they were likely to cause death, but without any such intention, in furtherance of a common intention. It is the badly framed charges and the defective summing up that have led the Jury to this logical verdict.
15. These are defects which vitiate the trial, and there is no alternative but to order a fresh trial.
16. As the learned Judge's summing up has bean read and criticised I should like to point out that the references to ' disturbed possession ' are obscure: the existence of a standing crop of paddy shows that some one had exercised possession a few months earlier, and in such circumstances the expression seems ill-chosen, at any rate without more explanation as to its precise meaning.
17. I agree.