SADHO Vs. EMPEROR

JUDGEMENT

(1.) This appeal arises out of sessions trial No. 18 of 1933, in which there were twelve persons accused of riot and another man by the name of Sarju Ahir who died in the course of the riot. This appeal is connected with Criminal Appeal Not 971 of 1933, which arises out of sessions trial No. 17 of 1933, in which there were 11 persons accused of riot and one other man by the name of Bhaglur who died in the course of the riot. The trials were conducted in the Court below by the consent of the parties as practically a joint trial and a consolidated judgment was delivered by the learned Sessions Judge. It has been argued by appellants in both the cases that the procedure adopted by the learned Sessions Judge of looking at the evidence in both cases together has prejudiced the accused, but I find that this procedure was adopted at the instance of the accused themselves and the learned Judge has not dealt with the cases in a manner which would suggest that the accused were prejudiced in any way. I also propose to deliver a consolidated judgment.

(2.) It was argued on behalf of the appellants in both cases that although there are more than five accused in each case, but the prosecution in both cases names specific accused and does not say that there were others as well. It must therefore be taken that 12 persons by name were implicated in sessions trial No. 17, and 13 persons by name were implicated in sessions trial No. 18 and it is not the case of anybody that there were more persons who were not recognized or identified in this riot. It is then argued that only three men have been convicted in each of the cases and it might be taken that one dead man was further involved in the riot in each case. The position therefore is that as a result of the decision by the Court below it can be said with certainty that there were only four men on each side and as such an offence under Section 147, Indian Penal Code, is not made out because the requisite number of five persons is not to be found in the cases. In support of this contention reliance is placed upon the case of King V/s. Plummer (1902) 2 K.B. 339, and passages at pp. 345 and 349, have been specially brought to my notice. This was a case in which the accused were being tried on a charge of conspiracy and although there were quite a number of accused in the case, but one of them pleaded guilty at a late stage in the case whereas the others were acquitted, it was held that the man who pleaded guilty could not be convicted because conspiracy requires more than one man and the acquittal of the others amounts to a finding that there was no conspiracy. It was held that: If two persons are tried together upon a charge of conspiring with one another, and one is acquitted by the jury and the other convicted, the conviction cannot stand, although it is perfectly dear that the verdict of acquittal may have been obtained simply upon the ground that there was a failure of evidence to establish the charge against the person who was acquitted.

(3.) This case to my mind is clearly distinguishable because the case of a conspiracy requires to some extent a clear mention of the conspirators and if on the paucity of evidence an acquittal follows regarding the rest of the accused it is not possible to convict a single man on a charge of conspiracy. In the present case however the judgment of the Court below satisfies me that he was of the opinion that more than five men undoubtedly took part in the riot. The three men who have been convicted on each side, and the two dead men also took part in the riot and the feeling of the learned Judge was that some of the others who were named in the cases were also involved in the offence, but as is very common in these cases some innocent persons might have been roped in, the learned Judge adopted certain sure tests for convicting the appellants. He however was undoubtedly of the opinion that more than five persons were involved on each side. I am therefore of the opinion that there is no force in the plea that an offence under Section 147, Indian Penal Code, is not made out. Dalip Singh, J., in Rahman v. Emperor 1926 Lah. 521, held that: When five persons are charged for forming an unlawful assembly and four of them are acquitted as their presence at the place of offence was not satisfactorily proved, the conviction of one only under Section 147 is not illegal.