MUTHU GOUNDAN Vs. EMPEROR

JUDGEMENT

(1.) We regret we are obliged to quash the entire proceedings in this case because of the procedure adopted by the learned Sessions Judge in altering the charge at the end of the trial. The prosecution case was that the deceased was returning from the field, where he had gone to do work, that he was waylaid by the accused and beaten to death and also that injuries were inflicted by the accused upon the mother and the brother of the deceased. The Committing Magistrate framed a charge in these terms:-- "That you (referring to 7 accused persons) on the 10th day of October 1918 at Kindra kola Maniokam village were members of an unlawful assembly and prosecuting the common object of such assembly, viz., in waylaying and beating to death one Muthu Goundan, son of Kolandai Goundan, and causing grievous hurt to P.W. No. 1, namely, Palani Goundan son of Kolandai Goundan and causing grievous hurt to Chinna Pillai and his brother P.W. No. 2, daughter of Sengodian and thereby committed offences punishable under Sections 147, 302, 325 and 145, Indian Penal Code. "Before the trial commenced the Sessions Judge split up this charge into six charges. The first is the most important of the charges. It was that, on the 10th day of October 1918, at Kondrakola Maniokam "you formed yourselves into an unlawful assembly with the common object of annoying one Muthu Goundan, son of Kolandai."

(2.) The second charge was "that at the same time and place you or some of you used force and violence to the said Muthu Goundan, his brother Palani Goundan and his brother Chinna Pillai in prosecution of the common object." It is not necessary to refer to the other charges. The trial proceeded on these charges. At the end of the case when the defence Vakil argued that on the charges as framed no offences could be imputed to the accused, the learned Sessions Judge proceeded to alter them. The first charge was altered as follows: "That on the 10th day of October 1918 at Kondrakola Maniokam you all formed yourselves into an unlawful assembly with the common object of beating one Muthu Goundan, son of Kolandai, and such other persons as might come to his help. "The second charge was altered as that" in the pursuance of the said common object at the same time and place you all used force and violence to the said Muthu Goundan son of Ramiah and the said Muthaya Pillai Goundan, to his brother Palani Goundan and his mother ChinnaPillai." The subsidiary charges were also altered.

(3.) The objection was taken before the Sessions Judge that these alterations were material and that the accused should not be convicted on these altered charges without an opportunity given to them to meet them. The Sessions Judge in his order says that the original charge as originally framed by him did not impute any offence at all and that the accused cross examined the witnesses with the intent of showing that they did not take part in the assault or in the beating, they were not prejudiced by the subsequent alteration. We are unable to follow the reasoning. The mere fact that the accused cross-examined the witnesses examined by the prosecution to prove the alleged unsustainable charges, is not a ground for holding that by substantially altering the charges they were not prejudiced. As was pointed out in Birendra Lal v. Emperor 32 C. 22 : 8 C.W.N. 784 : 1 Cr. L.J. 794 the Sessions Court is not a Court of original jurisdiction and, though vested with large powers of amending and adding to charges, can only do so with reference to the immediate subject of the prosecution and committal and not with regard to matter not covered by indictment; that is exactly what has happened in this case. The first charge in the original indictment does not refer to the beating and to the causing of hurt. Simply because the accused have chosen to examine the witnesses for the purpose of proving that they were not the aggressors and that they were acting in self defence, it would not follow that they were not prejudiced by the specific charges which had been made against them at the close of the trial. If we may say so, the charge framed by the Magistrate is in many respects more specific, whether it was sustainable or not is not a matter which we need go into at present. Then as to the charges which the Sessions Judge framed at the beginning of the trial. It was the duty of the Sessions Judge in a case where several persons were charged with the serious offence to have drawn up the charges with care and framed specific charges against the accused. Even the amended charges are vague and we are not satisfied that on the amended charges objection cannot be taken by the accused. However that may be, we mast draw the attention of the Sessions Judge to the fact that he was wrong in holding that the accused were not prejudiced by the course adopted by him in altering the charge in material portions of it at the close of the trial.