EMPEROR Vs. ANNAPPA BHARAMGANDA

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against the order of the Sessions Judge at Belgaum acquitting 23 persons who were tried before him and a jury on the charge of voluntarily causing grievous hurt with dangerous weapons ( Section 326 of the Indian Penal Code). The Jury returned a verdict of not guilty by a majority of 3 to 2, which the learned Judge accepted. The Government appeal against the order of acquittal on the ground that there was a mis-direction in the judge's charge to the Jury.

(2.) The case for the prosecution is shortly as follows :- Two brothers Shantgauda and Bhau who live at Hunari, Taluka Chikodi, were at enmity with Nemaji, accused No. 1, who died after arrest but before the trial in the Sessions Court. On the morning of the 18 of July 1905, Shantgauda and Bhau, who lived almost opposite to accused No. 1's house, were passing by the latter's on their way to relieve themselves, when the accused attacked them and inflicted injuries on both, with the result that Shantgauda has become blind completely of one eye and Bhau has become very weak.

(3.) The learned Sessions Judge in his charge to the jury divided the accused into two classes; one class consisting of those of the accused against whom there was oral evidence adduced by the prosecution to prove that they inflicted the injuries, the other consisting of the other accused who were present at the beating as abettors, according to the case for the prosecution, but as against whom there was no oral evidence to show that they actually assaulted either Shantgauda or Bhau. So far as the first class is concerned, there is no exception taken before us to the learned Judge's summing-up. He placed before the jury a summary of the oral evidence against them with an indication of his opinion that that evidence was more or less reliable. But it is his charge to the jury in respect of the second class that is assailed before us as being vitiated by mis-direction. The Judge said:- I think a distinction should be made between the 10 men who came out to attack Shantgauda and Bhau and those who were in Nemaji's house at the time. Taking it that the 23 accused, with Dada who is dead or missing, met in Nemaji's house, there is no evidence that they did so with any intention of attacking Shantgauda", Further on he told the jury:-" There is no evidence that the object of the meeting" (in Nemaji's house) "was unlawful". And the same observation is repeated in other words in another place in the charge. If the learned Judge meant that there was no oral evidence in the case to show that the 23 accused had all met in Nemaji's house with the premeditated purpose of attacking Shantgauda and Bhau, he was perfectly right and no exception can be taken to his charge. But the case for the prosecution was that all the accused had entered into a conspiracy to attack Shantgauda and Bhau and had with that common intention assembled in the house of Nemaji early in the morning of the 18 of July. And a conspiracy may be proved by other than oral evidence. It may be proved by the evidence of surrounding circumstances and the conduct of the accused both before and after the alleged commission of the crime. As was said by Lord Campbell C.J. in his charge to the jury in Regina V/s. Esdaile (1858)1 F. & F. 213, 237 "There may be a conspiracy without overt acts"; and " it is not necessary that evidence should be given to show any formal consultation or express agreement to act unlawfully; but if you are reasonably satisfied that there was a common design to do what is charged and that the defendants were acting in concert to do it, you may infer the conspiracy". In the present case there is evidence to show that there have been two factions in the village, to one of which the accused belong and of the other of which Shantgauda and Bhau are members and that members of each faction had been before the 18 of July preferring complaints against members of the other. There is also evidence from which it appears that on the night previous to the 18 of July accused Nos. 17, 18, 23, 19, 15, 8, 12, 13, 6, 9, 10, 11, 7 and 16 had a feast in the house of accused No. 16, though it was not a festive day; that they spent the whole night there; that at early dawn the next day they were all seen going towards Nemaji's house, except accused Nos. 23 and 16, carrying sticks. The attack on Shantgauda appears from the evidence to have followed soon after. The accused in their statements to the Court deny their presence at the house of Nemaji at the time Shantgauda and Bhau were beaten there. They all pleaded alibi but led no evidence. There was thus evidence of circumstances, which, if believed, would prove common intention on the part of all the accused to beat Shantgauda and Bhau. It is evidence of the conduct of the accused both before and at the time of the assault, showing that they must have all gone to the house of Nemaji at that unusual hour with no other object than that of acting unlawfully.