EMPEROR Vs. BANAPPA KALLAPPA AJAWAN

JUDGEMENT

(1.) The five appellants in this case were charged under Secs.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 Secs.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 Criminal P. C. against the verdict of acquittal by the jury with regard to the charges under Secs.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 Sec. 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.) The present case is a counter case arising out of the same facts from which Appeal No. 181 of 1943, which we have just decided, arose. In that case one faction was prosecuted and convicted. The present case is against the rival faction. Accused No. 3 in the present case was the complainant in the other case, and the present complainant Iraya was accused No. 1 in that case. Each case was tried by a different Sessions Judge. The trial in the case against Iraya began on April 15 and was concluded on April 21, 1943. The trial against the accused in the present case commenced before a different Judge on June 21, 1943, and was concluded on July 9, 1943, The procedure which was followed in putting up these two cases, both arising out of a single riot, before two different Judges has produced somewhat startling results. The accused in both cases have been convicted of having used the same gun and of having wounded Chayappa with it. In the other case Iraya was found guilty of having shot at Chayappa with the very gun with which Banappa accused No. 1 in the present case has been found guilty of wounding Chayappa. Admittedly only one shot was fired at Chayappa in the course of the riot. The case affords a very striking example of the difficulties which may occur where counter charges arising out of a riot are tried by different Judges. The Judge in the present case referred to the counter case in his charge to the jury and pointed out that the jury in the earlier case had found the prosecution witnesses in the present case guilty of rioting and firing a gun, but he observed that the opinion of the jury in the earlier case was not in any way binding on the jury in the present case, and he thought that undue stress had been laid by the defence on this fact. His remarks may be technically correct, but it is obvious that very serious injustice has resulted because of the procedure followed. One side or the other has obviously been wrongly convicted of having fired at Chayappa.