STATE Vs. KALU

JUDGEMENT

(1.) THESE 35 appellants, all residents of a village called Kachotiya about 6 miles from the thana headquarters at Khilchipur in Rajgarh District, were put on trial and all convicted under Section 302 read with Section 149, Indian Penal Code for the membership of an unlawful assembly in the execution of the common object of which four persons were killed; they have been sentenced, fourteen of them, namely, those numbered 3, 6, 7, 8, 16, 17, 28 to 35 to the extreme penalty subject to confirmation by this Court, and the remaining 21 to imprisonment for life. In addition they have been convicted, numbers 1 to 33 and 35 under Section 325 read with 149 Indian Penal Code and sentenced to live years rigorous imprisonment each and under Section 323 read with 149 with sentences of rigorous imprisonment for one year each and all under Section 147 Indian Penal Code with a sentence of two years rigorous imprisonment all sentences to run concurrently.

(2.) IN regard to another 25 who had been arrested and discharged by the police, the learned Sessions Judge has recorded his opinion that the discharge was on insufficient grounds, and should be looked into by the District Magistrate. If this implies that there are proceedings pending further inquiry into the cases against these 25, whatever is said in this judgment will not be counted against them if and when they are brought to trial.

(3.) THE special problems of this case are, on law, whether on the prosecution witnesses' own allegations there was only one transaction and an attack by one unlawful assembly acting at different locations or whether there were two unlawful assemblies as indicated on the two separate challans, or three or four unlawful assemblies each going to each of the separate fields of the Cha-mars. In the latter event the question would be, whether there could have been a joint single trial or whether if separate trials were indicated there has been miscarriage of justice by the joinder. Another very unusual question in this case is regarding the circumstances in which the Public Prosecutor can on his personal opinion that they may not tell the truth, give up without any adverse inference being drawn against his side, witnesses who are essential and have been listed and summoned in fact, the Chowkidar and the village patel or headman, the former giving the first information report and the latter visiting the scene of the happening either when it was in progress or immediately after. Other questions are primarily in regard to the assessment of oral evidence; but here again the peculiarity of the present case is that for one thing, all the material witnesses are the alleged victims of the attack and no features observed on the site or sites are proved to support or to belie the possibility that an incident of the kind described, did happen there. The final question of very great consequence is when, on the Additional Sessions Judge's own finding the parts played by all the accused are practically the same, and the individual parts are not deposed to and not as-certainable, how he could select a certain number for the capital punishment while awarding the others the lesser sentence.