EMPEROR Vs. BANAPPA KALLAPPA AJAWAN

JUDGEMENT

(1.) THE five appellants in this case were charged under Sections 148, 326 and 307 read with Section 149 of the Indian Penal Code for having on September 8, 1942, been members of an unlawful assembly, the common object of which was to commit murderous assault on Yellappa, Basalingaya, Bhimarai and Iray a Shivaya, with having committed a riot in prosecution of this common object being armed with axes and scythes, and with having voluntarily caused grievous hurt to Yellappa and others. Accused No.1 Banappa was also charged with having attempted to commit murder by firing a gun at Yellappa and others and with having thereby committed an offence under Section 307, Indian Penal Code, and the other accused with having committed an offence under Section 307 read with Section 149 of the Indian Penal Code. Accused No.1 was further charged under Section 19 (e) of the Indian Arms Act for having been in possession of a gun without a license. THE jury by a majority of four to one found all the accused not guilty of rioting or of causing grievous hurt. THEy also found accused No.1 not guilty under Section 19(e) of the Indian Arms Act. THE assessors were of opinion that the offence under Section 307 read' with Section 149 had also not been proved against any of the accused. THE learned Sessions Judge was of opinion that the verdict of the jury with regard to the charges under Sections 148 and 326 with Section 149 of the Indian Penal Code and under Section 19(e) of the Indian Arms Act was manifestly perverse and against the weight of the evidence, but as he differed from the verdict of the assessors with regard to the charge under Section 307 and convicted accused No.1 under Section 308 and accused Nos. 2 to 5 under Section 308 read with Section 149 of the Indian Penal Code, he thought it unnecessary to make a reference to this Court under Section 307 of the Code of Criminal Procedure against the verdict of the jury. He therefore made an order of acquittal as regards the offences of rioting and causing grievous hurt.

(2.) THE decision of the learned Judge not to make a reference to this Court under s 307 of the Code of Criminal Procedure against the verdict of acquittal by the jury with regard to the charges under Sections 148 and 326 of the Indian Penal Code has created a difficulty as regards the conviction of accused Nos. 2 to 5 under Section 308 read with Section 149 of the Indian Penal Code. THE learned Judge very unwillingly accepted the verdict of the jury acquitting all the accused of rioting and of causing grievous hurt. He nevertheless convicted accused No.1 under Section 308 for having attempted to commit an offence under, Section 304 and the remaining accused Nos. 2 to 5 under Section 308 read with Section 149. It is difficult to see how the conviction of accused Nos. 2 to 5 can be sustained. THEy have been acquitted on the charge of rioting. It must therefore be held that there was no unlawful assembly and no common intention on the part of these four accused to commit a murderous assault on Iraya or any body else. Section 149 could not therefore be applied to them. That section pre-supposed a finding that there was an unlawful assembly with a common intention to commit an offence. THE conviction of accused Nos. 2 to 5 under s.,308 read with Section 149 must therefore fail in any case. Although the learned Judge has referred in one part of his charge to Section 34 of the Indian Penal Code and has pointed out to the jury that that section could be applied even though it had not been specifically mentioned in the charge, he does not actually convict accused Nos. 2 to 5 under Section 308 read with Section 34, but only under Section 308 read with Section 149 THE question however is not of much importance on the view which we propose to take of the evidence as a whole.

(3.) WE have found it very difficult to understand the attitude taken up by the prosecution in the present case. In the first case, in which only Iraya and his party were prosecuted, it was alleged by the prosecution that Iraya had come armed with the gun (Article 6 in the present case and Article 11 in the other case) and that he had shot Chayappa with it and had also wounded Devendra. That case ended in the conviction of Iraya. WE cannot understand how, after that conviction, the prosecution could have contended in the present case that the shot which wounded Chayappa had been fired by accused No.1 in the present case, Banappa. The attitude adopted by the prosecution must undoubtedly have misled the Judge and the jury.