BABY JOHN Vs. STATE

JUDGEMENT

(1.) THE learned trial judge has considered the evidence on this point and he has observed in his judgment that it has been amply established that the whole idea of the procession that day was first accused's conception. THE evidence of Pws. 75, 78 and 43 when read together shows that the 1st accused had first called up leading members of the Union at the Union office and formulated the plans, that at his instance the labourers were collected at the T. M. C. Dump subsequently that morning that he had addressed them as to the line of action to be followed and that under his lead (among that of others) the labourers had set out for Kozhithottam. THE unlawful assembly was formed there". . . . . . THE main evidence regarding the utterances of the 1st accused at the conference held in the premises of the union at 3. 30 A. M. is furnished by the depositions of Pws. 52 and 75. Pw. 52 is the owner of the premises where the Union Office who had occasion to proceed by the side of the office of the Union Office in response to an urgent call from a sick relation of his. When he was passing that way, he noticed Pw. 52 standing outside the verandah of the Union premises and the 1st accused and others holding a conference inside the room. Out of inquisitivences he also listened in to find out what they were talking about. P. W. 52 is alleged to be not on friendly terms with the 1st accused and the officials of the Union because he had started proceedings for recovery of possession of the premises from the Union when the latter did not accede to his request. As a result there were criminal prosecutions launched by the parties against each other. THE learned trial judge has applied his mind to this aspect of the case and he has observed that in view of the evidence about the enmity that prevailed between Pw. 52 and the 1st accused, he would have hesitated to accept the uncorroborated testimony of pw. 52 but in his judgment there was corroboration of the material particulars furnished by the evidence of Pws. 75,53 and 78. THE evidence of Pw. 52 can be said to be very damning so far as the 1st accused is concerned. He stated that he saw the 1st accused talking to the other leading members of the Union whom he had summoned to the premises of the Union at 3. 30 A. M. and he informed them about the arrest of Srikantan Nair, impressed, upon them that it was necessary that they should openly express their protest and indignation at the arrest of their leader and that the following morning they must lead a Jatha or procession (the literal translation of the Malayalam expression used would be tumultous procession) from the vicinity of the Union office right up to Quilon where Srikantan Nair was incarcerated in jail. According to Pw. 52, the 1st accused told the audience that there was a ban imposed by the District magistrate of Quilon in the proclamation published by him the previous evening, that the ban should be defied and in defiance a procession should move right up to Quilon, that the members of the procession should not retrace their steps or withdraw even if resisted by the army or the police. THE evidence of other witnesses is not so very direct and specific. THEy also speak to the fact that the purport of the exhortation of the 1st accused was that the procession should be taken from the office of the Union up to Quilon, defying the ban imposed upon such procession by the District Magistrate and in spite of opposition by the authorities. THE case for the prosecution is that in using these expressions, the 1st accused was instigating his audience to commit acts of aggression.

(2.) IN interpreting the meaning of the word "instigate" in the case that is reported in 1923 Bombay 44 (Emperor v. Amruddin Salebhoy Tyabjee) the learned Chief Justice Macleed, C. J. in the course of his judgment quotes an extract from Russel on Crimes where the word 'instigation' is explained. The learned judge quotes the following passage: "a person is said to instigate another to an act when he actively suggests or stimulates him to the act by any means or language direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement" (at page 46 of the report ). Applying the meaning of the word "instigate" as explained in Russel on Crimes, it is not necessary that express and direct words should be used to indicate what exactly should be done by the persons to whom directions are given by a person in the position of the 1st accused. IN the evidence in this case of Pws. 75, 48 and 78 who have spoken to the idea conveyed in the directions given by the 1st accused to his audience, there is sufficient material for drawing the inference that there was instigation on the part of the 1st accused to the members of the procession and to the leaders of the procession that they must resist any opposition that may be offered by the Police or by the Army and see that the procession goes from the point where it was to start and reaches Quilon. When there was a prohibitory order issued by the District Magistrate, Quilon it is reasonable to presume that the 1st accused would have realized that so long as law and order were maintained in the State, the authorities concerned would not permit the ban to be ignored and processions taken which were expressly prohibited by the District Magistrate. It is easy to infer that the meaning conveyed by the exhortation made by the 1st accused was that there must be force used for resisting any obstacle placed in their way by the Police or by the Army. IN other words he was instigating the assembly to use force if they found that there was opposition to their progress towards Quilon. The definition of "abetment" contained in S. 97 of the Travancore Penal code (corresponding to S. 107 of the INdian Penal Code) lays down that there are three ways in which a person may become liable as abettor. There are: (1) By instigation; (2) by engaging in any conspiracy for doing an unlawful act and an act or illegal omission takes place in pursuance of that conspiracy and (3) intentionally aids, the doing of an act, which may be either by an act or illegal omission. We are here concerned with abetment by instigation and the wording of the definition has to be carefully noted. It says: "a person abets the doing of a thing, who instigates any person to do that thing. " Considering this definition strictly, the instigation must have reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. IN the present case there is no evidence to support a finding that the throwing of stones at Pw. 5 and other members of the Police party at the point at which the unlawful assembly launched a joint attack upon the Police was specifically instigated by the 1st accused. Therefore, the finding that the 1st accused is liable for abetment of all the acts of violence or of the individual acts of violence done by the unlawful assembly at the place at which the Police inspector (Pw. 5) was brutally assaulted by the members of the mob, cannot be upheld. But there is sufficient evidence to support a finding that active suggestion of resistance by violence was made and the members and leaders of the unlawful assembly were called upon to indulge in such violence at the stage at which the first accused made his exhortation to his followers. If that conclusion is established by the evidence in this case (and we have no doubt that the evidence is sufficient for establishing this) then the result is the 1st accused has become liable for abetment of the offence of rioting under S. 138 and 139 of the Travancore Penal Code. According to S. 138: "whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of common object of such assembly, every member of such assembly, is guilty, of the offence of rioting. " According to S. 139: "whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. "