ALKASULLA Vs. EMPEROR

JUDGEMENT

(1.) The appellants have all been convicted of rioting and sentenced to various terms of imprisonment. Two of them were also convicted under Section 323 I. P. C., but no separate sentence was passed. Unfortunately when the case came on at the trial the learned Judge adopted a procedure which has given us trouble in one or two other cases and the result is that it is quite impossible to uphold this verdict. The learned Deputy Legal Remembrancer, however, asked us in view of the prosecution case that the appellants party were mortgagees attempting to get possession without the assistance of the Court to order a new trial on a suitably framed charge.

(2.) There can be as far as we can gather, no doubt whatever that this fight, in which persons on both sides were injured, took place in regard to the dispute about possession. The committing Magistrate took the commonsense view that if possession was really with the complainant, the common object of the accused was to take possession themselves. In our opinion, that must be so. However, when the trial was taken up at the request of the Public Prosecutor, the learned Judge added the words " and assaulting them"; the result was the introduction of not only inevitable but unjustifiable confusion. It is one thing to say that the common object was to get possession of the disputed land, it is quite another to say that the common object was to beat apparently for the mere pleasure of beating. It is quite wrong to include those two contradictory cases at the same trial even more so in one charge. The learned Judge dealt quite properly with the plain straightforward case which the prosecution originally made and he put the defence case with regard to the right of private defence in a manner to which no objection could be taken. Having done that, he went on to say this: If you fail to find which of the parties was in possession, next consider the evidence whether the crown has been able to establish the alternative common object of assaulting the complainant's party. For this purpose, refer to the medical evidence. This shows that Farasatulla was fatally wounded, and Sukur Ulla and Mabarak Ulla were also wounded and it also shows that Gatha, a deadly weapon was used n the fight. You are to consider the evidence and decide whether the prosecution has established the existence of the common object of assaulting the complainant's party.

(3.) Unfortunately this was precisely what the jury did. The foreman said this: We have not been able to find in whose possession the land in dispute is. In our decision, as regards conviction under Section 147, I. P. C., we have found that the common object of the assembly was that of assaulting the complainant's party.