BABARALI SARDAR Vs. EMPEROR

JUDGEMENT

(1.) In this there are 10 appellants who have been tried before the learned Addl. Sessions Judge of Faridpur and a jury who heard 27 witnesses for the prosecution and a large number of witnesses for the defence. The jury have unanimously found the 10 appellants guilty of the charges of which they stand convicted. The nature of the case is that the deceased one Nawabali Mathar was a member of certain society (Samaj) in the village and that for various reasons he became unpopular with some of his neighbours owing to social friction showing itself in various ways, extraordinary petty-ways to all appearance, but really important from the point of view of the accused and the deceased. The character of the crime alleged, shortly speaking, was this that at 6 o clock in the morning of Sunday 5 February 1928, when the deceased and certain ploughmen were tilling the field the accused bent upon revenging their grudge came running up-armed with lathis and certain small spears to make a determined attempt to cause hurt to the deceased. They were doing this in concert and had a common object in view. That, in point of fact, as so often happens when a number of people band together for such a purpose, one of them Hashu Bepari, accused 5, killed the deceased and two others inflicted grievous hurt upon the deceased, namely accused 9 and 10. Accordingly accused 5 was put on his trial and was convicted under Section 304 read with Section 148. The remaining of the first 8 accused were convicted under Section 147 of rioting and under Sec. 304 read with Section 149. As regards the second charge of which these persons have been convicted the case under Section 149 is of a very ordinary character. The charge against them is not that all of them set out to commit murder or homicide at all but that they set out with others to cause-hurt in circumstances which they well knew rendered it probable that some one or other of their party would go further and would deal a blow to the deceased which would result in his death.

(2.) It is a matter of most common experience based on elementary reasons that when a number of people attempt to carry out an object of that kind one or other goes further than he originally intended. I regard the charge against these persons as exactly of the type intended to be covered by the alternative clause of Section 149. As regards the accused 9 and 10 they have been convicted not only under Section 148 and under Section 304 read with Section 149 but under Section 324 also. The objection that has been taken on the part of the appellants to the proceedings in the lower Court has reference to the question whether they were given their rights under Section 162, Criminal P.C. We have not heard the Deputy Legal Remembrancer on this point and I will take the statement made in the appellants own affidavit. This was a case which was tried after commitment and after an enquiry held before the Committing Magistrate. I shall assume, indeed I see no reason to refuse to assume, that had these appellants when before the Committing Magistrate asked for a copy of the statement made by any one of the witnesses then called for the prosecution they would have been entitled at that stage to a copy of the statements on the terms of the section. No such application was made. The Committing Magistrate finished his enquiry and committed the case and it left his Court altogether. Then it was that an application was made to him and it is conceded that he had no other course but to refuse it. An application was made to the learned Sessions Judge of Faridpur before the case came on for trial. At that time it was by no means certain which judicial officer would try this case. The learned Sessions Judge thought it was a case for the Judge at the trial and left the matter with him. Nothing happened in the meantime but at the trial a petition for copies was filed and after making the order for granting copies the Judge found that the Government Pleader was contending that the proper time to make the order was before the cross-examination of each witness had begun. That was quite true as laid down in the case in Madari Sikdar V/s. Emperor A.I.R. 1927 Cal. 314. A case to the contrary was cited from Patna which held that copies should be asked for when a witness entered the witness-box and the learned Sessions Judge very properly thought himself bound by the rulings of his own High Court. But in truth and in fact the position was this that copies were ordered to be granted at the commencement of the cross-examination. The order was then made. The position was, therefore, that if it was desirable to see the statements in order to know whether there would be any cross-examination upon them or not, opportunity was given to the defendants at that stage to apply at the commencement of the cross-examination. As regards the present case it is most important to observe what followed, for in my judgment in this case nothing requires to be decided as to the time when copies are to be asked for, that is whether the true view is that the application should be made the moment the witness enters the box or at the close of his evidence in chief

(3.) Let us assume for the sake of argument though I am far from holding so, that the order for the supply of the copies should have been made a couple of hours earlier than it was in fact made. The position then was this that the accused were to get reasonable facility given by the section. They had to file stamp papers upon which the copies could be made. If they did not get their copies in time their duty was to ask the learned Judge in the circumstances to adjourn the cross-examination till the next day or, at all events not to formally conclude the cross-examination in case the statements when furnished might lead the learned pleader for the defence to cross-examine further. What in fact was done smacks too much to my mind of an attempt to make a grievance. What was done was that the pleader for the defence said that it was very inconvenient for him to file folios at that stage and it was no use to get copies at a subsequent time. So he did not file any folios and did not do the necessary to get the copies. That seems to me to put this grievance out of Court altogether. I quite agree that that if in the circumstances the learned Judge had insisted on closing the cross-examination of the witnesses without giving reasonable facilities to the pleader to give his client the benefit that Section 162 confers that would have been a good ground for objecting to the fairness of the trial, In this particular case it is evident to me that the defence preferred their grievance to their copies and I do not think that we are called upon to interfere with this trial and to have it held over again because of that ground. The question has been raised in this Courtas to whether at any time after the witnesses were called before the Committing Magistrate the defendant has not the right to apply to the Court to get an order for copy. I am very far from so holding.