THANGAYA NADAR Vs. EMPEROR

JUDGEMENT

(1.) In this case 13 accused were tried before the Sessions Judge of Tinnevelly, as to all of them with having formed an unlawful assembly on or about 6 December 1924, with the common object of forcibly taking a marriage procession through non-Nadar streets and with the intention of causing hurt to the non-Nadars and committing mischief, thefts and dacoity in regard to their property, etc., offences punishable under Secs.147 and 323; as to accused Nos. 1, 3 and 7 that they being members of the aforesaid unlawful assembly, were armed with guns and Accused Nos. 2 and 4 with aruvals, etc., an offence under Section 148; as to Accused Nos. 8, 11 and 13, that they, in the course of the same transaction as the rioting, and in furtherance of the common object, stole a cart, an offence under Section 379; as to Accused Nos. 2, 5 and 7 that they broke into the house of Karuppayi and committed theft of a trunk, etc., offences under Secs.454 and 393; as to Accused Nos. 1, 4, 6, 7, 10 and 12 that they in furtherance of the common object committed dacoity in the house of Kamakshi Ammal, wherein Accused Nos. 4, 10 and 12 removed articles of property, goats, grains, vessels, etc., and Accused Nos. 6 and 7 forcibly removed the ear jewels of Kamakshi, an offence under Section 395; and as to Accused Nos. 2, 5. 8, 11 and 13 that they as members of the said unlawful assembly, in prosecution of the common object of which Accused Nos. 4, 6, 7, 10 and 12 committed dacoity, also committed an offence under Section 395 read with Ss. 34 and 149.

(2.) It will be observed that the trial was complicated by the fact that certain charges and surely those under Secs.379, 459, 392, 395 read with Secs.34 and 149 are charges triable by a jury, whereas the charges under Ss. 147, 148 and 323 are charges triable by the Sessions Judge with assessors. The learned Judge summed up the case at some length to the jury with regard to all the charges, but when he came to write his judgment with regard to the charges triable by himself with the assessors, he agreed throughout with the jury except as to finding Accused Nos. 5, 6 and 9 guilty of arson. He convicted all the accused of rioting under Section 147; Accused Nos. 1, 3, 7, 8, 2, and 4 under Section 149; Accused Nos. 8, 11 and 13 under Section 379; Accused Nos. 1, 2, 5 and 7 under Secs.454 and 392; Accused Nos. 1, 4, 6, 7, 10 and 12 under Section 393; and Accused Nos. 2, 5, 8, 11 and 13 constructively under Secs.395 and 149.

(3.) Appeal is taken with regard to several points in the learned Judge's procedure. It is first said that the judgment is not in accordance with the requirements of the Criminal P. C., Section 367, in that it does not contain the points for determination, the decision thereon and the reasons for the decision. It will be seen from what I have said about the judgment that it has really only a reference to the charge to the jury which was held not to be sufficient compliance with the requirements of the Code by a Bench of the Bombay High Court in Queen-Empress V/s. Dattu Rat. Un. Cr. Case. 426.. It is very difficult to lay down any hard and fast rule and I do not in this case in the least propose to do so as to what amount of judgment a Judge should write in any particular case and particularly in a case of this kind where he and the jury are in fact performing two separate functions at the same time; but this point weighs with me in the present case. All the accused have been convicted under Section 147. On appeal the defence would, no doubt, be embarrassed by want of discussion on the part of the Judge as to the evidence which he believes as against each of the accused. The learned Judge in this charge says in para. 10: If you believe the evidence, there is sufficient evidence to prove that these accused committed rioting. But whether you do or do not believe, it is a matter for you to decide and I think, etc.