EMPEROR Vs. YESHVANT SATVA CHAUGULE

JUDGEMENT

(1.) It is admitted by the Sessions Judge in his judgment that the common object of the unlawful assembly was not specified in the charge. The question then is whether the accused have been in any way prejudiced in their defence by that omission, or whether they have been misled in any way, so that a failure of justice has been occasioned. The Judge said :- It is alleged in the complaint that all the accused formed an assembly with the intention of obstructing the procession, and attacked the complainant and others with that intention, the Magistrate has recorded a finding that the evidence shows that the accused hud premeditated an attack, and hence were collected in a body near the house of accused No. 5 and on the road of the pro. cession. I have gone through the record, and agree that the evidence does justify that finding. That being so, the defect in the charge, which does not appear to have prejudiced the accused in any way, does not vitiate the proceedings : see Basiraddi V/s. Queen- Empress I.L.R. 21 Cal. 827.

(2.) In that case certain persona were charged with rioting and it appeared that the charge did not specify any common object, and that neither the judgment of the original Court nor that of the Sessions Judge in appeal found even what was the common object which made the assembly of which the prisoners were members an unlawful one. It was held that those defects did not vitiate the proceedings, there being ample evidence on the record to prove what the common object of the assembly was, and to justify the conviction for the offence of which the lower Courts had found the accused guilty.

(3.) Their lordships said (p 831.) :- We think that we ought not to grant a rule for such a purpose, unless we should be prepared, on the materials on which we grant it, to make it absolute, or, in other words, to acquit the prisoners, if no cause were shown against it, and we certainly should not be prepared to acquit these persons, merely in consequence of the defects which I have pointed out in the charge, and in both the judgments; because it must be evident that notwithstanding them there may be ample material, in the evidence on this record, on which we should ourselves be prepared to convict the prisoners of the offence of rioting, and to inflict the same punishment, which has been inflicted upon them by the Deputy Magistrate. We accordingly invited Mr. A pear to place the evidence before us with the object of showing us that, upon it, the prison-era ought not to be convicted of rioting. He has done so, to some extent, and we have ourselves since examined it, and so far from thinking that we ought to acquit the prisoners, we think that there is ample evidence here, which we see no reason to disbelieve, that they were members of an assembly, the common object of which was to prevent, by force, traders from resorting to the new hat.