Ganapathi Sarma and Others vs Emperor

Wallace, J.—Petitioners have been convicted of having taken part in a riot and committed various offences in the course of the riot. The riot

took place at Karur on the night of 24th August 1921 and early morning of 25th August 1921, and was occasioned, as found by the lower Courts,

by an attempt on the part of the Congress arid Khilafat Committees there to compel the manager of a theatrical troupe performing at the theatre at

Karur to hand over to the funds of these Committees his takings for one night''s performance. Annoyed at in refusal, the crowd who had

accompanied the Secretaries of these Committees attacked the theatre while the performance was going on, stampeded the audience and

committed various acts of violence to the persons in the audience and the property of the troupe. The Trying Court has written a careful and

discriminating judgment, in which the main facts of the riot are very clearly set out.

The chief incidents of the night are detailed in order in paragraph 83 and following paragraphs of the Trying Court''s judgment. The particular

offences of which the crowd, generally, has been found guilty are endangering human life by throwing stones (Section 336, Indian Penal Code),

causing hurt by the same (Section 337), causing hurt to Police Officers (Section 332), wrongful restraint (Section 341), mischief (Section 426) and

criminal trespass (Section 447). The lower Courts have found the petitioners guilty of all these offences either directly or contsructively by force of

Sections 34 and 149, Indian Penal Code.

The riot began at 8-30 P.M. and went on spasmodically till 9-30 the next morning. Between 11-30 P.M., when the Police fired and one of the

mob was killed, until 6-30 A.M., there appears to have been a decided lull in the activities of the mob. Prior to 11-30 P. M., however, all the

offences of which the mob as a whole were found guilty of had been perpetrated, although again at 6-30 A. M. there was a renewal of the

offences under Sections 426 and 447, and further offences u/s 435 by isolated members of the crowd. That the actions of the mob between 8-30

and 11-30 P.M. were united and concerted and continuous admits of no doubt; and for whatever criminal offences it committed or was likely to

commit in furtherance of its common object during that period, each member of the assembly would in law be responsible. As to the renewal of

activities at 6-30 A.M. before individual members of the original mob could be held in law responsible for those acts, it would have to be clearly

shown either that they were present during the second riot or that the second riot was a continuation of, and a likely result of the first.

It is also found that one of the petitioners, the 1st accused although present at the beginning of the riot at 8-30 P.M. left the place almost at

once.

It is contended generally for petitioners, and cannot, I think, be denied, that both the lower Courts have used Sections 34 and 149 of the Indian

Penal Code in too loose and uncritical a manner, and have not clearly in all cases found as fact the ingredients necessary for convictions by force of

these sections. In cases where there is no direct evidence of the actual participation of the accused in a specific act of violence, if persons proved

at particular points of time to be members of the mob but not shown to have taken part in the specific act are to be found guilty of that act by force

of Section 34, it must be clearly found that that act was in furtherance of the common intention of the mob while these accused were in it, or if

Section 149 is used, it must be clearly found that that act was also in prosecution of the common object or such as these accused knew to be likely

to be committed in prosecution of their object. The common object of the rioters for the purpose of Section 149, which may be taken to be much

the same as the common intention for the purpose of Section 34, is set out in the charge, as taking vengeance on P.W. No. 2, the proprietor of the

Dramatic Company, because of his refusal to give the collections of the night to the Congress and Khilafat Funds, and ""later on"" to take vengeance

also on the Deputy Superintendent of Police and his Constables.

Now the Trial Court makes it. clear, (paragraph 114) that the attempt to take vengeance on the Deputy Superintendent of Police only arose

after one of the rioters had been shot dead, that is, about 11-30 P.M. and only materialised in any overt act in the attack in the early morning. In

my view it cannot be held that persons who were in the mob at the first attack up to, say, 11-30 P.M., must necessarily be held, in the absence of

evidence, to have been present in the second attack at 6-30 A.M. and conversely and much more obviously those only proved 1 o be present at

the second attack cannot possibly, in the absence of some evidence, be held to have been present at the first. Obviously, also, the common object

of a crowd, comparatively innocent at first., may develop by degrees into something very much more heinous and culpable: and these;

developments may, on the one hand, be such as were naturally inherent in its original common object or may, on the other hand, be ebullitions of

spasmodic fury in a direction which no one who was at first in the crowd could have contemplated. In the latter case, I do not see how members

originally present but absent at the time could be liable for these latter acts.

The lower Courts should have, therefore, considered, first, what was the original intention of the mob and which of its offences naturally were

inherent or likely to have occurred in the prosecution of that intention and which were not: secondly, at what stage of the riot were these petitioners

present, and what was the temper, the intention and the common object of the mob while they were present what acts was it likely to go on to

commit in furtherance of that common object; and, thirdly, whether, if they had left the mob at any stage, they could nevertheless be held guilty of

airy of the acts committed by the mob after they had left. The lower Courts should have paid more attention to the provisions of Section 148,

Indian Penal Code, which lays down that no one is a member of an unlawful assembly unless he is aware of the facts that render that assembly an

unlawful one and intentionally joins or continues in it. It may be difficult ''to decide these points clearly, but it has to be done. I am not, therefore,

prepared to accede to the contention of Mr. Vaz, who appeared for the Public Prosecutor, and I am sure it is not the law that a Court is to

presume that any and every person who is proved to have been present in a riotous mob at any time or to have joined it at any stage during its

activities is in law guilty of every act committed by it from the beginning to the end, or that each member, of such a crowd must from the beginning

have anticipated and contemplated resistance to the organised forces of order, that is, the Police, or have made up his mind before the riot began

to oppose such resistance and overcome such force as stood in the way of the mob accomplishing its common object. That appears to me to be a

fundamentally wrong view in law, though, of course such a combination of common objects might be proved by evidence to have existed. It is

entirely a question of fact on which findings, as I have indicated above, must be recorded by the Trying Court before it can apportion the legal

responsibility of the various members of the unlawful assembly, in order to find what was the common object of the crowd at the ''beginning,'' it is

not a, legitimate method merley to take all the actual offences committed by it in the course of the riot, and to infer that all these were originally part

of its common object and must normally be based on more evidence than the mere acts themselves. I am not prepared, therefore, to infer as a

matter of law that persons whose common object, say, from 8-30 to 11-30 P.M. was to wreak vengeance on P.W. No. 2 must necessarily have

been those or joined with those whose common object between 6-30 and 9-30 P.M. was to wreak vengeance on the Deputy Superintendent of

Police and vice versa. It is a matter for definite evidence, and proof. This is a point to which neither of the lower Courts has paid any attention and

it is a matter of great importance in the cases of several of those petitioners with whom I shall now deal.

The facts leading up to the riot, as found are. that about 5 P.M. the 1st accused, the local Secretary of the Congress Committee went to P.W.

No. 2 at his house and demanded of P.W. No. 2 to give the collections of the night to the Congress and Khilafat Committee, and then threatened

that there would be a disturbance and riot (P.W. No. 2 uses both words) if the money was not paid, and that, again, at 8-30 P.M. a crowd of

about 200 people headed by the 1st accused and three or four others assembled outside the theatre to repeat and enforce the demand. This latter

demand was in the nature of an ultimatum, P.W. No. 2 having already several times refused previous requests of this nature. Some throwing of

stones by the crowd on the theatre was going on. Then the 1st accused and three or four others went inside the compound, evidently as leaders

and representatives of the crowd, and the 1st accused renewed their demands for the collections from P.W. No. 2. P.W. No. 2 put him off,

promising to pay something in the morning. The 1st accused and his companions went after ten minutes purely in an angry mood, the 1st accused

saying definitely that P.W. No. 2''s promise was unsatisfactory and that it was impossible to prevent a disturbance, as the crowd would not listen

to him. When the 1st accused reached the crowd and went into it, stones began to fall and the riot definitely began, the crowd being ""furious,"" as

P.W. No. 2 puts it, because he would not give any money. The evidence is that the 1st accused raised his hand to the crowd. P.W. No. 3 thought

he was trying to pacify it, P.W. No. 4 that he was encouraging it to riot. P.W. No. 22, the only defence witness of any use on this part of the case,

says that the 1st accused was trying to disperse the crowd, but he did not go near the crowd and evidently cannot say at what stage of the

proceedings he saw the 1st accused do so. It in clear that the 1st accused cleared off the scene at an early stage of the riot and was not seen after

about 8-30 P.M.

Now, no witness speaks to the first accused having committed any of the specific acts of violence by the mob. His conviction is based purely on

the application of Sections 34 and 149, Indian Penal Code, to his case, on the ground, as both Courts have held, that he, as leader and spokesman

of the mob, was legally responsible for all that the mob substantially did in furtherance of its common object although he himself left it at the

beginning. The findings of fact in his case, so far as they are relevant, appear to be as follows: that at 5 P.M. he threatened P.W. No. 2 with a riot

if his demands were not complied with; that at 8-30 P.M. he was at the head of a mob of two hundered people to support his demands and acted

as spokesman, but when his demand was refused, he again hinted at a riot, and that when he again reached the crowd, stone-throwing began.

There is no evidence of any cries of the mob which would go to show what its intention then was : but it appears to me to have been simply to

bring further intimidation to bear on P.W. No. 2 to grant its demands. Its action was confined to stone-throwing until about 10-25 P.M. when the

Police arrived with arms, and the play was not stopped until twenty minutes later when the attack of the mob appeared imminent and the Police

outposts, who were on the load, were withdrawn inside the compound. Thus, for at least two hours after the first accused left nothing more than

stone-throwing went on although the crowd was in numbers easily sufficient to force its way in and break down any resistance. In these

circumstances, I am not prepared to find that the crowd at 8-30 P.M. had any common intention of breaking into the theatre, stampeding the

audience, wrecking the performance and damaging the properties. Nor am I prepared to find that at that time it was obvious to the members of it

that such results were likely to happen. A person leaving the crowd then would be justified in inferring that its temper was such that it would, as it

did, do nothing more serious than throwing stones indefinitely, until something unforeseen and which could not be reasonably anticipated roused

them to more criminal actions. Any member, therfore, who left it at 8-30 can at the most only be held guilty by force of Sections 34 and 149 of

offences under Sections 336 and 337 of the Indian Penal Code.

It is urged on behalf of the first accused that the evidence does not show that he was a member of the unlawful assembly at all, and that, on the

contrary, he was trying to prevent the assembly using violence, but in this contention I cannot concur. His whole conduct indicates to my mind that

he intended to use show of force and intimidation to P.W. No. 2 to get his illegal demand enforced and that he headed the crowd for that purpose:

and I agree with the lower Courts in holding that the stone-throwing was inherent in his plan, if not actively directed by him. It was going on when

he left the crowd to confer with P.W. No. 2 and began again when he returned from the conference. But I must disagree with the Trying Court

when it seeks to fasten on him the responsibilty for the further actions of the crowd, merely because he ""did not use his power of control over the

crowd"" to prevent further offences, or because he did not beforehand communicate the intention of the mob to the authorities (see paragraph 117

of the lower Court''s judgment) and with the lower Appellate Court''s even more unsatisfactory inference that, because he was an ""important

personage among the rioters,"" therefore, he must be held responsible for all that his comrades did in the course of the riot. (See paragraph 4 of the

Sessions Court''s judgment). I, therfore, hold that the first accused''s conviction tinder Section 147 and Sections 336 and 337 by force of Sections

34 and i49 is legal and that his conviction under other Sections is not legal and must be set asid.

The next set of petitioners with whom I have to deal are those proved to have been in the assembly between 8-30 P.M. and midnight, accused

Nos. 9, 12, 13, 15, 21, 29, 31 and 33. I would here remark-that I accept only the evidence believed by the Trying Court. The question whether,

in any particular case, a witness who has retracted in cross-examination what he stated in chief examination should be believed has to be decided

on the facts of the case, and I would demur to attempting to lay down, as the lower Appellate Court has done, any general principle in such cases.

In the present case I consider that the Trying Court has probably appreciated better than the lower Appellate Court the extent of credibility to be

attached to such witnesses and prefer with the Trial Court to reject such witnesses altogether. The common intention of the mob between 8-30 and

11-30, has been found to be and obviously was to stone the premises, the patrons to the show and the Police, break open the compound gates,

trespass into the compound, commit mis-cheif there, drive off the audience, and close the peformance, so much. The 9th accused is only identified

as having in the beginning dissuaded people from buying tickets, and having thrown stones. His case is similar to that of the 1st accused and his

conviction has to be similarly modified.

So far as the 12th accused is concerned the evidence is that he threw stones during the riot and assualted Constables at about midnight. No

one says that he was present after that. He was, therefore, in my opinion, guilty of the acts of the mob up to midnight as he was still taking plaintiff

in the attacks at midnight, and his conviction by force of Sections 34 and 149, Indian Penal Code, for the acts committed up to that time by the

mob, i.e., under Sections 147, 336, 337 426 and 447 appears to me correct, but his conviction u/s 341 as I shall indicate later, cannot be upheld.

As to the 13th accused there is evidence against him similar to that against the 12th accused and his case must be similarly dealt with.

As to the 15th accused he is proved to have held P.W. No. 9, one of the spectators, as he was running away from the shed. He is said to

have, recognised P.W. No. 9 and let him go. There is nothing to show that his action was in conceit with the mob or that his action was not wholly

innocent, and it is not said that any crowd was with him at the time. I do not see how it can be inferred from that act alone that the 15th accused

was one of the mob who took part in its common object. There is no other evidence that an offence u/s 341 was part of the common intention of

the mob at any time. I find, therefore, no evidence on which the 15th accused can be convicted and his conviction must be set aside. It also follows

that Section 341 must be struck out in the case of all accused since this act of the 15th accused is the only evidence that any wrongful restraint of

ordinary spectators by the mob occurred.

As to accused No. 21 there is the strong evidence of his taking part in the initial stone-throwing and that he was present also when the mob

burst open the gate at 11-30. P.M. His case is, therefore, the same as accused No. 12.

As to accused No. 29 there is evidence that he took part in the throwing of stones before the advance into the compound was made.

As to accused No. 31, there is evidence that he was inside the compound after the first entry by the mob, burning Policemen''s clothes about

11 P.M. or midnight and that later on he took part at 8-30 A.M. in burning the doors. That evidence was sufficient for the Trying Court to

conclude that he was present throughout, and his conviction directly or constructively for all acts of the mob, except the offence u/s 341 is,

therefore, correct.

As to accused No. 33, his case appears to me to be the same as that of accused No. 9.

The next batch of accused is Nos. 3, 27 and 48. All three appear only in the later attack in the early morning. Accused No. 3 is dentified as a

member of the mob by P.W. No. 15. I am asked to interfere in his case as he is an old man and was shot during the riot. He was evidently the man

at whom P.W. No. I fired because he saw him aiming a stone at him although P.W. No. 1 was not able to identify him. (P.W. No. 1 in the list in

paragraph 113 of the Trying Court''s judgment is a mistake for P.W. No. 15). The evidence shows clearly that he was'' inside the compound and,

therefore, there was enough evidence for the lower Courts to find that he was guilty of being a member of an unlawful assembly.

As to accused Nos. 27 and 48 they were seen by many witnesses committing mischief by fire to the property in the compound. The acts

committed by the mob in this second attack were obviously criminal trespass, mischief and mischief by fire, and the mob''s intention then was not

only to get at P.W. No. 2 but also at P.W. No. 1, the Deputy Superintendent of Police. I think that the evidence as to the acts of the later mob is,

in the absence of other evidence, sufficient to clearly identify it with the original mob and its actions. It is found that the mob had remained all night

at the spot between 11-30 P.M. to 6-30 A.M. and that at 6-30 it continued the efforts to break down the resistance and was still as is evident

from the case of accused No. 3, throwing stones. I hold that these three accused were, in the absence of reliable evidence to the contrary, fairly

proved to have been members of the mob and in the riot throughout and were, therefore, guilty in law of all the acts of the mob, from which I

exclude the offence u/s 341, Indian Penal Code.

The net result is that all the accused are acquitted of the offence u/s 341, Indian Penal Code, and that the convictions of accused Nos. 3, 12,

13, 21, 27, 31 and 48 are otherwise confirmed: that the convictions of accused Nos. 1, 9, 29, 33, under Sections 426 and 447 are set aside and

otherwise confirmed: and that the 15th accused is acquitted altogether. In the case of accused Nos. 12, 13, 21, 27, 31 and 48, I reduce the

sentence of imprisonment by two weeks, and in the case of the 3rd accused who has already been two weeks in Jail, I think that is sufficient and

reduce the sentence of imprisonment to the period, already, undergone.

In the case of the 1st accused I reduce the fine to Rs. 200, and in default to undergo rigorous imprisonment for 6 weeks, and in the case of the

9th accused the period-of imprisonment not undergone will be remitted but the fine of Rs. 500 will stand. In the ease of accused Nos. 29 and 33 I

cancel the line and the sentence will otherwise stand. Accused Nos. 12, 13, 21, 27, 31, 29, 33 and 48 will go back to Jail to serve out their

sentence.