Abubaker and Others vs State of Kerala

P. Govinda Menon, J.—The petitioners were charged under sections 148, 323, 324, 326 and 451 read with Section 149 I.P.C., for having formed themselves into an unlawful assembly and in prosecution of the common object for having trespassed into the house and causing grievous hurt and simple injuries to P. Ws. 1 to 4. The learned Munsiff-Magistrate of Alwaye accepted the prosecution evidence and convicted the accused as charged. The learned Additional Sessions Judge of Parur who heard the appeal thought that the omission to specify the common object of the unlawful assembly has seriously prejudiced the accused and acquitted them of the offence of rioting and set aside the conviction under Sections 147, 148, and 149, but he found the accused guilty for their individual acts, the first accused under Sections 451 and 324 I.P.C., the second accused under Sections 451 and 323 I.P.C., the third accused under Sections 323 and 326 I.P.C., and accused 4 and 5 u/s 323 I.P.C. Aggrieved with the order the revision petition has been filed to set aside the order, It is contended on behalf of the petitioners that their conviction for the specific offences under Sections 323, 324, 326 and 451 I.P.C., is bad in the absence of any direct and individual charges against them in respect of these specific offences and the entire trial is, therefore, vitiated. This argument gains support from certain observations found in two decisions of the Supreme Court.

In Suraj Pal Vs. The State of Uttar Pradesh, a number of accused were tried for charges under Sections 147, 323, 307 and 302 read with Section 149 I.P.C. There were no direct and individual charges against the accused for the specific offences under sections 307 and 302 I.P.C. The Sessions Judge found all the accused guilty of the various offences as charged and sentenced them. On appeal the High Court while setting aside the convictions and sentences of all the accused under Sections 307 and 302 read with Section 149 convicted the appellant u/s 307 and 302 I.P.C. On appeal it was held by the Supreme Court that there being no direct and individual charges against the accused for the specific offences under Sections 307 and 302 I.P.C. the conviction could not be maintained because the absence of specific charges against the accused was a very serious lacuna in the proceedings and had materially prejudiced the accused. The learned Judges on the facts of the case found that prejudice was in fact caused and so set aside the conviction and sentence.

In the other case Nanak Chand Vs. The State of Punjab, also the same question arose for decision and it was held that a person charged with an offence read with Section 149 cannot be convicted of the substantive offence without specific charge being framed as required by Section 233 Cr. P.C. It was found in that case also that the appellant was in fact misled in his defence.

In a later decision of the Supreme Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, the matter was elaborately considered. In that case two persons were charged u/s 302 read with Section 34 I.P.C. One of the persons was acquitted, but the appellant was convicted for the substantive offence u/s 302 as he was the person who dealt the fatal blow and made himself directly liable for the murder. It was contended that as he was not charged with having murdered the man personally he could not be convicted u/s 302 and reliance was placed on the observations contained in the decisions of the Supreme Court referred to above. His Lordship Bose J. discussed the question whether the omission to frame a separate charge in the alternative u/s 302 is an illegality that cuts at the root of the conviction and makes it invalid or whether it is a curable irregularity in which all that is required is to see whether prejudice has been caused to the accused. His Lordship pointed out that the code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the code, His Lordship observed, is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice.

Chandrasekhara Aiyar J., observed :

Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; ''and the charge is a rolled-up one involving the direct liability and the constructive liability'' without specifying who are directly liable and who are sought to be made constructively liable.

In such a situation, the absence of a charge under one or other of the various heads of criminal liability for The offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.

Here in this case the learned Judge has analysed the evidence and stated that even though the charges under the various heads had been lumped together nevertheless it details in clear and specific terms the particular acts which each of the accused committed and that it could not be said that they have been in any way prejudiced. I am in perfect agreement with this view.

The Learned Counsel for the defence then took me through the evidence in the case and pointed out various circumstances which would go to show that the prosecution evidence is unreliable and that a conviction ought not to have been rested on such evidence. P. Ws. 1 to 4 are the victims of the attack and P. Ws. 5 and 6 are two apparently disinterested neighbours. It is true that all the witnesses have not spoken to the part played by each of the accused and it is true that there are certain discrepancies in their evidence. But such discrepancies are not uncommon in rioting cases. Looked as a whole I do not find any reason to differ from the concurrent findings of fact arrived at by the courts below that the offences have been brought home to the accused beyond reasonable doubt. The conviction and sentence are therefore confirmed and the revision petition is dismissed.