ABDUL GANI Vs. EMPEROR

JUDGEMENT

(1.) The two appellants before us have been convicted by the unanimous verdict of a jury of offences under Secs.147 and 353 of the Indian Penal Code and they have, each of them, been sentenced to one year's rigorous imprisonment under the provisions of Section 147 and to the same sentence under Section 353, the sentences to run concurrently.

(2.) The principal matters urged before us on behalf of the accused with regard to the charge were as follows: First, it is said that there was misdirection as the law was not explained under Section 353. This point, however, was abandoned, as clearly at page 17 of the copy of the charge, which is before me, the law under Section 353 is explained to the jury. But the point, it appears, was taken under a misapprehension and having regard to the omission of a passage of the charge from the copy of the charge supplied to the learned Counsel for the appellants. The second point urged was that there was misdirection owing to the case of the individual accused not having been placed before the jury and it is urged that the offence with which they were charged and of which they were convicted under Section 352 is essentially an individual offence and that accordingly the learned Judge in charging the jury should have placed before them the evidence that there was against each of the accused separately. It is further stated that when the learned Judge does explain to the jury the law under Section 353 he tells them that the offence would be complete if the Sub-Inspector and his party were deliberately pushed by these two accused persons, but it is said that he has failed to tell them that there was no evidence given by any witness for the prosecution that the two appellants actually pushed the Sub-Inspector and his party. Thirdly it is said that the learned Judge erred in his charge to the jury because he left it to them to find out the common intention and the common object, instead of asking them, as it is said he should have done, if the common object charged was proved and reference was made to certain passages in the charge, which are at page 18 of my copy, where he asked the jury what was the common object of the assembly at the cross-road and also to a passage at page 24 of my copy where he asked the jury to decide what the common intention of the mob at the crossing was; and this point has been somewhat amplified by the learned Counsel for the accused, who laid stress on the fact that the common object could only be of obstructing and assaulting whereas the learned Judge is said to have used in his charge to the jury other words such as: "resisting, disturbing and overawing public peace." It is said, so far as the charges of obstruction and assault are concerned, that the accused have been acquitted under Section 152 which deals with obstruction. That they also have been acquitted of offences under Secs.332 and 333 which deal with assault, and it is, therefore, said that) the jury may have been misled by the words which the learned Judge used in his charge and that the conviction may have taken place owing to this misdirection.

(3.) Then criticism is directed to the reference made by the learned Judge in his charge to the sections of the Police Act. It is said that this Act was not invoked by the accused and that) the learned Judge may have confused the jury by his reference to certain sections of that Act. Next, it is said that the Judge was wrong in referring, as he has done, to the fact that no written statement was filed and in stating to the jury that the only thing that was in writing which had been proved was the bail petition which concerned Abdul Gani and Abdul Gani alone and that it had little bearing on the present occurrence. A farther criticism is directed to the points raised in the grounds of appeal under the heading V, Sub-clauses " f " and " k , it being stated that the learned Judge should not have charged the jury as he did that it was dangerous to lay stress on the fact of the lack of education and fanaticism of the assembly in the absence of evidence whether the assembly consisted of educated and fanatic persona or not. An objection is also taken to the words set out in paragraph V (k) of the grounds which I need not refer to in detail. It is not, I think, necessary to deal in detail with all these points.