1. This appeal has been presented in accordance with the provisions of Section 417, Criminal P.C. by the Legal Remembrancer to the Government of Bengal. 58 persons were placed on trial before the Additional Sessions Judge of Khulna on charges of rioting, murder, grievous hurt and causing disappearance of evidence. The jury returned an unanimous verdict of not guilty in respect of some of the accused and a majority verdict (6 against 3) of not guilty in respect of the remaining accused. The learned Judge accepted the verdict of the jury and acquitted all the accused persons. It has been contended on behalf of the Crown that in his charge to the jury, the learned Judge made so many mistakes in placing the evidence before the jury, that a completely erroneous picture of the evidence on record was given; that the learned Judge misdirected the jury as to the law applicable to the facts of the case; and that the learned Judge consistently refrained from drawing the attention of the jury to the evidence which supported the prosecution case, and in effect presented the case to the jury as though there was no reliable evidence for the prosecution.
2. Mr. N. K. Basu appearing on behalf of some of the respondents took a preliminary objection to the hearing of the appeal. Mr. Basu pointed out that the Government appeal was in respect of 58 accused persons, and orders had been passed directing issue of notice and re-arrest of all 58 accused persons. Notices had been served, however, on 40 only of the accused persons, and 40 only had been rearrested. Mr. Basu contended that as one appeal only had been presented, the appeal could not be heard until all the accused persons named in the memorandum of appeal had been served with notice and given an opportunity of contesting the appeal. Mr. Basu was unable to point to any provision of law directly bearing on the question, but he contended that the piece-meal hearing of the appeal was contrary to fundamental principles of criminal justice and was unknown to English law.
3. We are unable to accept this contention. It is obvious that the accused persons who have not received notice of the appeal, will not be governed by our decision, but we are unable to understand how they or the appearing respondents will be prejudiced thereby. In our opinion, there have been in effect 58 appeals against 58 different accused persons presented by the Local Government, and there would be no legal bar to the separate hearing of the appeal against each separate accused person. It is convenient to consolidate the appeals against the appearing respondents, but it is not legally necessary so to do. If effect were given to Mr. Basu's contention, it would mean that the appeal could not be heard so long as a single accused parson succeeded in evading service of notice, and the remaining accused might be detained in cusitody for an indefinite period. We are satisfied that it is not merely permissible bat desirable to hear the appeal in respect of those accused only upon whom notices of the appeal have been served.
4. As to the merits of the appeal, Mr. Basu did not dispute the Crown contention that the learned Judge's charge contained so many inaccuracies regarding the evidence as to make the presentation of the evidence materially incorrect: but he contended that the learned Judge's explanations of the law were correct and that in spite of the learned Judge's mistakes in presenting the facts, the appeal should not be allowed. It will suffice for the purposes of this appeal to give a very brief outline of the case for the prosecution and of the defence set up. Plot No. 1667 of mouza Atlia was mortgaged by Jogendra Nath Mazumdar, and the mortgagees sold their interest in the land to complainant Abdul Barik, and the complainant was in possession for some years prior to the date o occurrence. In a partition suit between Jogendranath Mazumdar and others, to which complainant Abdul Barik was not a party, a petition of compromise was filed and the suit was decreed on compromise. According to the compromise decree, this plot fell entirely to the share of Ratanmani Dasya and Rash Behari Tikadar. Thereafter possession of the land was disputed between Abdul Barik on the one hand, and Golak Tikadar on the other. The land is situated in mouza Atlia which is within police station Terokhada, disirict Khulna. The accused party are for the most part residents of Ghanashyampur, within police station Khalia, district Jessore. Atlia and Ghanashyampur are contiguous villages, the boundary of the two districts separating them from each other. The boundary was formerly a khal, but at the time of occurrence was a mere depression covered with grass. At 4 p. M. on 19th April 1940, a band of Namasudras from Ghanashyampur and neighboring villages assembled to take possession of the land and to attack Abdul Barik. They were armed with guns, spears, shields, etc. The Muslims of Atlia collected to oppose the Namasudras and One Masim Sheikh of Atlia was sent to Terokhada police station with the news that a breach of the peace was imminent. Before the police could intervene, the Namasudras advanced and the Mahomedans withdrew to the land of Gagan Sheik where they took their stand. The Namasudras attacked and several of their number opened fire. Three Mahomedans, viz., Daliluddi, Karim and Kami were shot dead. Nine others, viz., Emani Sheikh, Hazari, Sultan, Dhala, Alfu, Mokshed, Abdul Aziz Molla, Tofazzel Fakir and Abdul Majid Molla also received gunshot wounds and of these, Hazari and Emani subsequently died of their wounds. Other members of the Mahomedans party were injured by spears, daos, etc. The Namasudras dragged away the bodies of the three Mahomedans who were shot dead on the spot, and those bodies have not since been recovered.
5. The defence case seems to have been that Golak Tikadar was in possession of the disputed land; that the Mahomedans gathered to take forcible possession and drove the Namasudras to Ghanashyampur; and that friends of the Namasudras came up with guns to protect them, and in exercise of the right of private defence, shots were fired at the Mahomedans. Charges under Section 302, Penal Code, were framed against some of the accused, charges under Section302/84, Penal Code, against some others, and charges under Section 302/149, Penal Code, against all the accused. In explaining the law regarding the charge under Section 302/149, Penal Code, the learned Judge observed:
If accused 1 to 4 are found by you not to be guilty under Section 302, Penal Code, but found constructively guilty of it under Section 34, Penal Code, the other accused cannot be convicted under Section 302/149, Penal Code, as if by double construction.
But as I have already stated at the outset, if you do not find accused 1 tp 4 guilty under Section 302, Penal Code, accused 1, 2 and 4 to 6 guilty under Section 326, Penal Code, but guilty of murder or grievous hurt under Section 302 or Section 326 read with Section 34, Penal Code, you cannot find the other aocused guilty under Section 302 or Section 326 read with Section 149, Penal Code.
Mr. N. K. Basu supported this interpretation of the law, and referred to the judgment of Field J. in, Empress v. Jhubboo Mahton ('82) 8 Cal.
739. in support of his argument. Field J. however merely observed:
But it may be a question whether in this case Jhubboo, being thus constructively guilty of murder, could be said to have committed the offence of murder within the meaning of Section 149, so as to make the other prisoners by a double construction, guilty of murder. On these essential points, no direction whatever was given to the jury.
6. Thus it will be seen that Field J. did not purport to examine the question and decide the point of law, he merely expressed some doubt in the matter. In our opinion, if the relevant sections are examined and the underlying principles borne in mind, there can be no doubt that the learned Additional Sessions Judge's direction on this point was wrong. Section 149, Penal Code, reads:
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence is a member of the same assembly, is guilty of that offence.
7. Section 9, Penal Code, provides that "unless the contrary appears from the context, words importing the singular number include the plural number, etc." Therefore, since the context does not suggest anything to the contrary, the opening words of Section 149, Penal Code, may be read as " If an offence is committed by any member or members of an unlawful assembly, etc..." and the section itself will apply in terms to cases where the offence in question is committed not by a single individual but by several individuals acting in concert. Moreover, according to the definition of "offence" in Section 40 of the Code, the word 'offence" as used in Section 149 denotes anything made punishable by the Code. Where a person becomes liable in respect of a criminal act done by him in furtherance of the common intention of himself and others and is punishable in respect of his part in the act he is himself guilty of an offence. The offence of which he may be guilty may be different from that of the others engaged along with him in the commission of the criminal act (Section 38) but it will nevertheless clearly be an offence within the meaning of the word as used in Section149 of the Code.
8. From general principles also, it is difficult o understand why a member of an unlawful assembly should not be liable for an offence jointly committed by two or three members of the assembly if that offence was committed in prosecution of the common object of the assembly or was such as the members of the assembly knew to be likely to be committed in prosecution of the common object. To take an example, if in the course of a riot, a man is seized, flung over a cliff and killed, there seems to be no reason for making a distinction between the ease where the victim was flung over the cliff by a single man, and the case where the victim was seized by several men and flung over the cliff. The guilt of the members of the assembly who took no part in the flinging remains the same, and is determined solely by a consideration of the question whether the injury to the victim was committed in prosecution of the common object of the assembly or was such as the other members knew to be likely to be so committed. We are satisfied that Section 149, Penal Code, applies equally in cases where offences are committed by single members of the assembly and in eases where offences are committed by two or more members of the assembly acting in furtherance of a common intention. If an offence is committed, whether by a single member of the assembly or by a group of members, the other members of the assembly may be liable under Section 149, Penai Code.
9. In view of Mr. Basu's argument, it will suffice to give one or two examples of the learned Judge's mistakes in placing the evidence before the jury; it will not be necessary to set them all out at length and show the effect they must have had on the jury. For instance, it was common ground during the trial that the clash between the parties occurred somewhere about 5.80 p.m. or 6 p.m. The learned Judge repeatedly told the jury that in the F. I. R. the complainant stated that the clash occurred about 4 p.m., and he asked the jury to draw a conclusion adverse to the prosecution. The complainant did not state in his F. I. R. that the clash occurred about 4 p. m. He stated that news was sent about 4 p.m., to the thana that the parties were preparing to fight and that the fight took place thereafter. The prosecution adhered to this case throughout. The learned Judge in addressing the jury, told them that they should first determine who was in possession of plot NO. 1667 and he drew their attention to a statement of Jogendranath Mazumdar in the petition of compromise in the partition suit to which I have referred above. The learned Judge omitted to point out that there was no evidence of possession by the accused party, and that the statement of Jogendranath Mazumdar, being a statement in his own interest, had practically no value, if it was admissible in evidence at all. The learned Judge drew the attention of the jury to an entry in the general diary of police station Therokhada to the effect that a constable named Mir Aminuddin had been deputed that afternoon to a place called Balordhona and to certain evidence on record shewing that in Order to go to Balordhona from the thana, one would naturally go via Atlia. From this the learned Judge asked the jury to draw the inference that this particular constable was a competent witness and had been withheld, and consequently to draw the further inference that if examined he would not have supported the prosecution version. In one place, the learned Judge went so far as to describe Mir Aminuddin as the most competent witness on certain points, though there was no evidence on record to show that he was at all competent to depose in the matter.
10. The learned Judge placed certain arguments before the jury suggesting that the F.I.R. was lodged at a late stage and was antedated. He omitted to place any of the considerations before the jury, which tended to show that such a theory was untenable. The learned Judge then proceeded to assume, as though it had been positively proved that there had been such a delay in lodging F. I. R. and in taking the wounded to hospital--and asked the jury to draw inferences adverse to the prosecution therefrom. This was in spite of the fact that all the direct evidence on record was that there had been no such delay and the greater part of the circumstantial evidence was inconsistent with such delay.
11. Several dying declarations were recorded by a Magistrate. Two of the persons who made such declarations, died shortly after making them. The investigating officer deposed that the dying men also made statements to him before they died, and he gave the substance of those statements apparently from memory. The learned Judge drew the attention of the jury to an incorrect statement in the F. I. R. lodged by one of the accused persons, and then remarked:
Curiously enough in all the dying declarations of the injured persons recorded by the Deputy Magistrate ... there was an echo of Debnath's incorrect statement ....
and the learned Judge based his argument regarding the alleged antedating of the F. I. R. on this. As a matter of fact, there is nothing in any of the declarations recorded by the Magistrate to support this view. There was something in the evidence of the investigating officer as to what was said to him by the dying men, to support the argument; but this was comparatively unimportant as the investigating officer did not claim to have recorded the exact words and did not produce his own record of the statements, and as the learned Judge had already advised the jury not to believe the investigating officer that any statement by one at least of the dying men, had been made. On account of this supposed misstatement in the dying declarations recorded by the Magistrate, the learned Judge told the jury that those declarations could not be acted on and had practically no value. These instances will suffice to show how the evidence was misrepresented by the learned Judge. The instances could be multiplied. We are satisfied that the misrepresentations of fact were so numerous and so serious that they amounted to misdirection and that the misdirection caused the jury to return an erroneous verdict.
12. Mr. Carden Noad, appearing for the Crown, has argued that this Court is competent in appeal to review the evidence and if satisfied, to convict the respondents. We do not doubt that we have such power, but we consider that is eminently a case, which ought to be decided by a jury on a proper trial and with proper directions from the Judge. We do not therefore propose to examine the evidence against each accused in detail. On the other hand, though we consider the verdict of the jury was erroneous owing to misdirections in the charge, we do not consider it necessary or desirable to Order a retrial of all the respondents who have appeared before us. Bearing in mind that the occurrence took place nearly two years ago and that the appearing respondents have already been tried twice for this offence, and bearing in mind also the period they have been in custody since this appeal was admitted, we do not consider that the ends of justice require that the mere rank and file of rioters-those whose liability under Section 302/149, Penal Code, or Section 826/149, Penal Code, may be doubted--. should be retried.
13. In considering this aspect of the case, Mr. Carden Noad pointed out very fairly that though some of the Namasudras were armed with guns and though some of the Mahomedans were shot dead yet according to some of the prosecution witnesses, the latter even did not think the guns would be fired. Mr. Carden Noad conceded that the Namasudras who were not armed with guns, might reasonably have thought that the guns were there merely to overawe their opponents and would not be used: Consequently many of the Namasudras may not have known at first that murder was likely to be committed in prosecution of the common object. But, Mr. Carden Noad proceeded to argue, after three of the Mahomedans had been shot dead, the Namasudras advanced and attacked the others: all who remained in the unlawful assembly after the first shots were fired may reasonably be presumed to have known that murder was likely to be committed in prosecution of the common object of the assembly. We have borne these arguments in mind, and are of opinion that there is good ground for ordering a retrial of all those appearing respondents who were armed with guns, or who were alleged to have performed such overt acts as stabbing the wounded or dragging away the dead or dying Mahomedans. But there is no sufficient cause for ordering a retrial of those appearing respondents to whom no specific acts were assigned and whose liability is based merely on their alleged identification as members of the unlawful assembly. Where the evidence merely shows that a particular accused was recognised as one of the assembly, there is nothing to show that he continued as a member after firing was opened; and obviously it is too late now for the witnesses to remember with any accuracy at what stage of the proceedings they recognised particular accused persons. In this view we propose to allow the appeal but to direct a retrial of some only of the appearing respondents.
14. We desire also to make some observations to the procedure, which we think should be adopted in the retrial. Where a person is said to have been killed and his body taken away and destroyed by his murderers there is ample justification for framing charges under Section 302 and under Section201, Penal Code. But where in addition to the allegation that some victims have been murdered and their bodies removed, there is clear evidence that others have been murdered whose bodies have not been removed and destroyed, no useful purpose is served by framing charges under Sections 201 and 302 in respect of the persons whose bodies have been removed. The framing of a large number of charges serves merely to confuse the jury, and the offence of murder is satisfactorily established if the murder of one out of a number of victims is proved. In our opinion, the Judge who may preside over the new trial would be well advised to take up only the charges under Section 148, Penal Code, the charges under Sections 802, 302/34 and 302/149, Penal Code, in respect of those persons only who died subsequently and on whose bodies post mortem examination was held, and under Sections 826 and 326/34, Penal Code, and under Sections 326/149, Penal Code, in respect of those who survived and were able to depose.
15. It will be open to the Crown to give evidence that a particular accused person shot at and wounded those whose bodies are missing, that a particular accused person stabbed or otherwise assaulted those victims whether before or after their death, and that a particular accused person assisted in dragging away the bodies of the victims. These facts if proved would go far to show that the particular accused persons knew that murder was likely to be committed. There will be no necessity in such a case to consider whether an offence under Section 201, Penal Code, has been committed, whether the victims were dead or alive when dragged away, or what would be the result if the jury were of opinion that some of the victims were already dead before spears transfixed them.
16. Again, we desire to point out that in the present ease there is scarcely any need to explain to the jury the law regarding right df private defence. If the prosecution case is substantially true-- if the battle took place on or near Gagan's land there can be no question of right of private defence. If on the other hand, the fight took place in Ghanashyampur, far from Gagan's land, the prosecution evidence as a whole must be substantially false and ought to be rejected in to In this latter view, the accused would be entitled to acquittal not on the ground of exercise of right of private defence (of which as yet there is no evidence) but on the ground that the prosecution case had not been satisfactorily proved.
17. In the result therefore we Order that the appeal be allowed so far as the appearing respondents are concerned and the verdict of the jury concerning them and the acquittal of Parbati Biswas, Brajabashi Paramanik alias Choukidar, Debnath Tikadar, Bholanath Tikadar, Banamali Tikadar, Sambhu Tikadar, Ganesh Tikadar, Dagaram Tikadar, Bhupendranath alias Nedu Tikadar, Radhanath Tikadar, Rash Bihari alias Bihari alias Tena Tikadar, Kunja Bihari Tikadar, Jharu Paramanik, Sakhi Charan Paramanik, Jaladhar Malakar, Ganesh Chandra Mazumdar alias Majhi, Nilkamal Mandal, Radhanath Gain alias Mallik, Sakhi Charan Gain alias Mallik, Umesh Sarkar, Hazari Gain alias Mallik, Ananta Kumar Hira Motilal Bagdi, Ballak Tikadar, Kushai Mandal alias Biswas, Kshetra Mondal alias Biswas, Upendranath Mondal alias Biswas, Umesh Mondal, Fatik Mondal, Kalachand Mandal, Sarat Chandra Sarkar, Manindra Kumar Sardar alias Ray, Purosottam Ray, Nayan Chandra Sardar alias Biswas, Atul Bairagi, Narottam Poddar alias Ray, Kailash Bairagi, Nakul Bairagi, Sarat Bairagi, and Nagendra Bairagi be set aside and we further direct that Parbati Biswas, Brajabashi Paramanik alias Choukidar, Debnath Tikadar and Bholanath Tikadar and Banomali Tikadar be retried by some Judge other than the Judge whose Order we have set aside. These five accused will remain in custody pending retrial; the remaining accused whose acquittals we have set aside will be released from custody.
18. I agree.