In Re: Subbaratnam and Others

Mack, J.—We have heard several batches of appeals which arise out of grave riots in Karur on 20th July, 1946, in the course of which

arson was committed in several buildings, and the movables therein including two motor cars, jutkas, bales of yarn, handloom goods, iron safes,

etc., were burnt by a frenzied mob composed mainly of weavers who got completely out of hand. We are particularly concerned in these appeals

with the family of Mariappa Mudaliar who had a handloom weaving factory in the Coimbatore Road in which he had 140 looms worked by

weavers for wages. In the bypass road which takes off to the south almost opposite his factory building, in a portion of which he also resided with

his family, there were three other buildings occupied by his brother''s sons, Arumugham and Subramaniam and his brother-in-law Manikka

Mudaliar. Mariappa Mudaliar had a garage and stable adjoining these buildings in which he kept his Ford car, three jutkas and two horses. His

factory and all these buildings including two motor cars, one belonging to Arumugha Mudaliar, were set fire to by a mob in the course of the day.

There were three separate Sessions cases out of which all these appeals arise in which several accused were separately tried on charges of

rioting, arson and kindred offences in respect of the buildings of Mariappa Mudaliar, Arumugha Mudaliar and Manikka Mudaliar. Separate trials

were found necessary in view of the personnel of the accused not being the same though several were common to all cases. There were in addition

two other Sessions Cases arising out of arson in two other buildings, in addition to a number of cases said to have been tried by Magistrates.

There can be no doubt - and this is not disputed by the appellants--that there was rioting and arson on a very grave scale that day in Karur.

Some photographs filed bear eloquent testimony to the damage done.

Karur is an important weaving centre with about 5,000 handloom weavers and 76 handloom factories. About 90 per cent, of the weaving

population merely work for wages on the looms of capitalist weavers whose factories were supplied with yarn issued to them on ration cards by

the Textile Yarn Control Officer on the basis of the number of active looms in their respective factories, in September, 1944. Until September

1946, it appears to have been open to a cooly weaver in the employ of a factory to buy his own loom and become eligible for a ration card,

entitling him to the supply of yarn, direct, a corresponding reduction being then made in the factory owner''s ration card. But this and other

privileges appear to have been severely curtailed mainly because of the insufficiency of yarn available for distribution. It would appear also that no

person who was not a weaver in 1944, could except with the special permission of the Textile Commissioner, buy a loom and obtain independent

supplies of yarn on an individual ration card.

There were two weavers'' associations in Karur, the Karur Taluk Handloom Weavers'' Association of which one Narkirar alias Arumugham

was the secretary and the United Weavers'' Association of which one Subbaratnam, a municipal councillor was the general secretary. They are

both incidentally appellants, found guilty of rioting and arson, and each sentenced to five years'' rigorous imprisonment in each of these three cases.

These associations supported an agitation for the issue of individual ration cards to weavers instead of to the factories. Representations were made

to the Government departments concerned with no result, and, on 21st June, 1946, the Secretary in a letter threatened the Textile Officer with

direct action, if the weavers'' demands were not conceded before 7th July, 1946. On 23rd June, 1946, a general meeting of the weavers was held

to concert measures, and a committee of action of seven persons was formed, all of whom figured amongst the appellants.

The nth July, 1946 was fixed by the authorities for the distribution of yarn from the retail dealers to handloom factory owners. On the 10th July,

2,000 weavers marched in procession to the house of the Sub-Divisional Magistrate, demanding a postponement till they made representations in

Madras. The distribution was accordingly postponed till the 14th and again to the 15th. On the 10th July, the Sub-Divisional Magistrate took the

precautionary measure of prohibiting meetings or processions, except under a police licence, by an order u/s 144 of the Code of Criminal

Procedure. The District Superintendent of Police came to Karur on 13th July, 1946, and an attempt to distribute yarn on the 15th July, from the

retail shop of one Rajagopala Aiyar in Kassim Sahib''s Lane very near the Police Station was rendered abortive by a general hartal and a

sympathetic strike by coolies and handcart pullers. On the 16th the weavers all went, on strike with well-organised picketing. The District

Magistrate came to Karur on the 17th of July, but all attempts at settlement were unsuccessful, and the decision was taken on 19th July, 1946, that

yarn would be distributed the next day with the aid of police bondobust to the factory owners. The Association of factory owners on this assurance

decided to meet the following morning at the police station and procure their supplies of yarn under cover of police assistance.

Accordingly between 10 and 11 a.m., on the 20th July, the day of these riots, about 30 factory owners gathered at the police station with motor

lorries and handcarts. The District Magistrate and the District Superintendent of Police were also camping there; but they found a crowd of

weavers led by agitators already gathered in Kassim Sahib''s Lane and around Rajagopala Aiyar''s shop. Satyagraha technique was first tried by

men and women picketers who were found lying across the steps leading into Rajagopala Aiyar''s shops to prevent any yarn being taken outside.

The District Superintendent of Police himself and the Deputy Superintendent of Police using the graphic language of the learned Assistant Sessions

Judge "" lifted the women by their arms and removed them."" The police succeeded in pushing the crowd back and in loading a lorry with bales of

yarn. Finally in order to clear the crowd to make way for the lorry a lathi charge was made. It was after these happenings in the neighbourhood of

the police station that matters took a very ugly turn and Satyagraha or passive resistance suddenly turned into violent destruction. This shortly is the

background'' out of which the evidence against these appellants has to be appreciated. We are not concerned with the merits of the grievances of

the weavers which appear to have generated some public sympathy. There are, however, ample indications from leaflets and pamphlets and the

utterances of the leaders that strong political propaganda had sedulously capitalised a grievance the weavers undoubtedly had and sought to turn it

to advantage in a war on capitalists in general. The weavers were held out to be oppressed by the officials of the textile and other departments of

Government who were working for the benefit of the factory owners and so on.

Before dealing with the evidence relating to the individual cases of rioting tried, it may be well to set out the general sequence of the riots that

day. It would appear that suddenly and without any warning when there were no police at all in the locality, a mob at about midday bent on

incendiarism burnt the car of Mariappa Mudaliar in its garage in the by-pass road and simultaneously attacked Manikka Mudaliar''s house next to

it. They then burnt the car of Arumugha Mudaliar and set fire to the thatched verandah of Mariappa Mudaliar''s house and factory in the

Coimbatore Road. All this took place between 12 and 1 p.m. ''The District Superintendent of Police arrived with a reserve party at this stage and

with some difficulty the crowd was dispersed, after the District Superintendent of Police and a constable each fired one round, one Malayappan,

an acquitted accused, was shot in the knee and there was also a lathi charge. The police then appear to have proceeded to another troubled area,

when the mob returned with redoubled fury and, after looting and burning Arumugham''s house in the by-pass road, finally sacked Mariappa

Mudaliar''s factory and set fire to its entire contents.

This is roughly the prosecution sequence, not seriously disputed by the learned advocates for the appellants, of the events that day in what was

undoubtedly a scene of great confusion and disorder.

Reference No. 1 of 1948, Criminal Appeals 66, 67, and 131 of 1948 and Crown Appeal, Criminal Appeal No. 163 of 1948 : These appeals

arise out of Sessions Cases No. 28 and 50 of 1947 in which 36 persons were charged in connection with rioting, arson and so on, in connection

with the factory and house of Mariappa Mudaliar, who was P.W. 16, and the burning of his car. Each batch of appeals arises out of two Sessions

Cases because some accused in each discharged by the committing magistrate were in revision directed to be retried by the District Magistrate.

The learned Assistant Sessions Judge who tried all these cases in succession and simultaneously delivered judgment on the 3rd of January this year

found accused 1 to 11, 13 to 15, 18, 19, 24, 25 and 30 guilty of rioting, arson and in fact on a variety of counts. He sentenced accused 1 to 4, 9

and 10 in all to five years rigorous imprisonment and the other accused to two years rigorous imprisonment in all. Accused I and 10 were in

addition fined Rs. 500 and accused 5 and 19 each Rs. 250 as he found they were possessed of property. They have all appealed. ''The Grown

has also filed an appeal, Criminal Appeal No. 163 of 1948, against the acquittal of accused 12, 16, 17 20, 28 and 31 to 36.

Reference No. 1 of 1948 made by the learned Assistant Sessions Judge had a very curious origin. He framed a variety of charges in all these

cases, in all 14 counts. They included two separate counts 9 and 10, of house-breaking which he proceeded to try by a jury who found all the

accused so charged not guilty. As assessors also the same Jury found all the accused not guilty on any count. In addition to these house-breaking

counts there were charges u/s 188 of the Indian Penal Code for disobedience of an order u/s 144 of the Code of Criminal Procedure which was

wholly unnecessary. Another charge framed was one of abetment against accused 1, 10, 16 and 17 under Sections 436 and 114 of the Indian

Penal Code. As all the accused were charged quite rightly u/s 147, Indian Penal Code, with forming themselves into an unlawful assembly with the

common object of committing arson, a separate charge of abetment was wholly unnecessary and does not in fact arise. The prosecution in these

cases was conducted by the learned Assistant Public Prosecutor of Madras who explains that it was only in the first case that the trial Judge tried

the house-breaking offences by the adoption of a mixed juror and assessor trial, and that this was abandoned in the subsequent cases. There was

no justification whatsoever for the trial of the minor house-breaking charges by a Jury and unnecessarily adding complications to these already

complicated cases- As it appears to us 20 only four simple charges were necessary in each of these cases, namely, rioting, u/s 147, Indian Penal

Code, mischief by fire u/s 435, Indian. Penal Code and mischief by fire with intent to destroy a house u/s 436, Indian Penal Code and finally an

offence imposing on all the accused constructive liability for these offences read with Section 149, Indian Penal Code. These simple charges should

have been quite sufficient. There is no necessity for a sessions trial to be cumbered by a medley of minor charges, particularly in a rioting case in

which the overt acts constitute evidence of participation in the riot. Section 147, Indian Penal Code is quite sufficient in its punitive scope

adequately to punish these minor overt acts committed. The learned Public Prosecutor explained that his assistant at the commencement of the trial

suggested simpler draft charges to the learned Assistant Sessions Judge, who however felt himself bound by the charges framed in the committing

court. A trial Judge at Sessions is not bound by the charges framed in the committing court and he has ample power to revise and alter them not

only at the commencement of the trial u/s 226, Criminal Procedure Code but u/s 227, Criminal Procedure Code at any stage of the trial before the

verdict of the Jury is returned or the opinions of the assessors are recorded. When he came to record his findings as regards the offence committed

by each accused, the learned Judge recorded his conviction of each appellant under several counts. For instance he convicted accused 1 and 10

under counts 1, 3, 5, 6, 8 and 12 of the charge and sentenced each of them to rigorous imprisonment respectively for 2 years, 5 years, 5 years, 5

years, 5 years and 5 years. To find out what offences they were guilty of, it has been necessary to have the counts before us; and in preparing the

warrants, his office must have been put to wholly unnecessary scrip tory labour and strain with the possibility of mistakes creeping in as regards

sections of law. We would impress on trial Judges the necessity of clearly recording in their findings the offence of which they find a person guilty

and also the section of the Indian Penal Code. The learned trial Judge really created for himself a great deal of unnecessary trouble by framing so

many unnecessary charges.

The First Information Report in the case (Ex. P-23) purports to have been made by Mariappa Mudaliar (P.W. 16) himself at the Karur police

station at 5-30 p.m. on the 20th July itself. According to the Inspector of Police, Sri K. Raman (P.W. 17) this long complaint was made to him and

at his request a Sub-Inspector, Venkatachalam (P.W. 5) took down what P.W. 16 told him in his presence. Exhibit P-23 contains a brief

description of the happenings that morning up to the lathi charge at about 11 a.m. In Exhibit P-23, P.W. 16 said that he was on his way to the

police station to take delivery of the yarn when the lathi charge was made, and that some time later Kaliappan (P.W. 13) the servant in his factory

came running with the news about the mob in front of Manikka Mudaliar''s house. He gave this information to the Collector and on his way to his

house saw Manikka Mudaliar''s house on fire, and he then says he witnessed the crowd led by accused 1 to n, all mentioned by name, who set fire

to everything in his; house while his women-folk took refuge on the terrace. The estimate of the damage, done was Rs. 1,28,500. In an appendix

to Exhibit P-23 the names of 26 other accused appear as persons who assisted in the arson. In Exhibit P-23 there appears: the names of seven

witnesses said to have been present, of whom only the servant, Kaliappan (P.W. 13) and one Subbarayar (P.W. 15) have been examined. One

witness mentioned in Exhibit P-23 is Vaiyapuri Mudaliar, whose brother Nagarajan, has been examined instead as P.W. 14. It is clear from the

non-examination of these five witnesses cited in Exhibit P-23 that the investigating, police did not, as sometimes happens, confine their attention to

the First Information Report but examined independent witnesses (P.Ws. 11, 12 and 14) instead.

Mr. N. Somasundaram for most of the appellants has sought to undermine Exhibit P-23 as a belated document, and therefore wholly unreliable

on the ground that it does not bear the initials of the Sub-Magistrate or the date stamp of his office. There is indeed no indication on its face as to

when it was received; I but we are unable to follow precisely what adverse inference is sought to be drawn from this obvious omission, in view of

the clear evidence that these eye-witnesses excluding the five mentioned in Exhibit P-23 were examined in the investigation on the 21st July. There

were a number of other First Information Reports received in the Sub-Magistrate''s Court that day and the following day in connection with

numerous cases of arson. No such omission admittedly appears in the First Information Reports in the other cases which are before us. We are

unable to draw any other inference than that there was an accidental omission to initial and date seal this First Information Report in the

magistrate''s office.

It was next urged that Mariappa Mudaliar, P.W. 16 took sanctuary all that day at the police station and never came near his house at all after

the mob proceeded to violence and incendiarism there. This line of defence is based on the evidence of three defence witnesses, D.W.s. 18, 19

and 20, all substantial residents of Karur to the effect that they were all in the police station from 11 a.m. to 6 or 7 p.m. that day and that P.W. 16

was there all the time. D.W. 18 would even go to the length of saying that P.W. 16''s servant Kaliappan also stayed in the station till 6 P.M.It is

sufficient to say that D.W. 18 admitted that his father and accused 16 were partners in the Pasupathi Textiles, an institution which strongly

supported the cause of the weavers. The natural conduct of a man who hears that a mob is about to loot his house is to go and see for himself what

was happening and to arrange for the safety of his women-folk. We may even presume that precautions were taken, to put them in a place of

safety in anticipation of trouble that day. There is, however, nothing to indicate that such a violent outburst of mob fury was anticipated in that

locality that day, as when it started there did not appear to have been any constables in the neighbourhood on bundobust duty. We are unable to

agree that: P.W. 16 would have behaved more naturally had he remained in the station all that day without going near his house which was being

looted and burnt. We have no doubt that P.W. 16 did see something of the attack on his house but we have good reason to doubt whether

everything embodied in Exhibit P-23 is the result of his own personal observations. This certainly could not have been the case in view of a long list

of 26 other accused named in an appendix to Exhibit P-23. The learned trial Judge was fully alive to the possibilities of Mariappa Mudaliar not

being able to resist the temptation to include as accused some of his enemies in Karur and indeed he has quite rightly given more than one accused

the benefit of the doubt on this ground and acquitted them.

The strongest attack on the prosecution evidence was levelled at Nagarajan (P.W. 14), a brother of Vayyapuri Mudaliar, mentioned as a

witness in Exhibit P-23. This witness appears at the time he was examined by the police on the 21st to have been disinterested. He Said that at

about midday he was passing along the Coimbatore Road when he saw a crowd going into the by-pass road and accused 3, 4, 5, 9 and 19 setting

fire to P.W. 16''s Ford car. The crowd then went into the Coimbatore Road and there accused 1,9, 10, 16 and 17 urged the crowd to set fire to

Mariappa''s factory. Accused 2, 3, 5, 7, 11, 14 and 15 broke open the locked door of the factory out of which they brought out bed-sheets and

towels and made a bonfire. He also saw accused 2, 3, 9, 30 to 34 bring out various articles, an iron safe, typewriter and furniture and make a

bonfire of them. He also saw the thatched verandah in front of the factory set fire to by accused 1, 3, 5, 9 and 12 and he also names the accused

who set fire to the jutkas as accused 3, 4, 14 and 19. This witness admitted that he was about 6 or 7 years ago employed by Mariappa Mudaliar

for about two years. During the war he was employed in some mechanical department of the Army for 21/2 years and says he returned to Karur

only eight days prior to the riot. Much is made of the fact that subsequent to his being examined as a witness he has been given employment by the

family of P.W. 16. P.W. 14 admitted that he is now an apprentice in a knitting factory owned by P.W. 16''s son, P.W. 2 and his cousin

Arumugham. We are unable to accept the suggestion that P.W. 14 was a witness who was prevailed upon to give false evidence in this case with

promise of employment. The more serious criticism about his testimony is the large ambit of his personal observations which would make any

conviction of an appellant on his uncorroborated testimony without substantial corroboration from more than one source in the circumstances of

this case unsafe.

16.The servant Kaliappan, P.W. 13, and another eyewitness, P.W. 12, were disbelieved by the learned Judge. We are not quite satisfied that his

total rejection of their evidence is justified. P.W. 13 was in the factory at the time the mob attacked it. His evidence is not easy to reject, because

he does not implicate too many persons and the extent of his actual observations is, as would be natural in such cases, small. He saw accused 1, 6

and 17 instigating the crowd to arson whereupon accused 2 and 5 set fire to the thatch of the building. He saw accused 14 and 15 bring the jutkas

from the by-pass road, throw them into the fire and A-2 and others bring out the yarn from the factory. He then says he got frightened and ran

away. P.W. 12 is a cooly who saw accused 1,10 and 16 exhorting the crowed to incendiarism and he then saw accused 2, 3 and 9 light a cloth

ball and apply it to P.W. 16''s thatched verandah. In fear he then ran home. These two witnesses were examined by the police the very next day

and appear to us natural observers whose evidence there are no grounds for rejecting in toto. Even apart from the evidence of P.Ws. 12 and 13

there is as the learned Public Prosecutor urges quite sufficient evidence accepted by the trial Judge.

Of the eyewitnesses believed by the trial Judge, P.W. 11 was a shop-keeper who was passing along the Coimbatore Road when he saw

accused 1, 2, 3, 5 and 9 setting fire to the thatched verandah of his factory. The other material fact he deposes to is that he saw P.W. 16 standing

in the vicinity.

P.W. 16''s son, P.W. 2 has also figured as an eyewitness. He says he was standing in the by-pass road with his brother when the mob

appeared. The details he gave are that accused 3, 4, 9 and 19 set fire to the car and that on the instigation of accused, 1, 9, 10, 16 and 17,

accused 2, 3, 5 and 9 and 12 set fire to the thatched shed in front of the factory. Then the District Superintendent of Police came and there was

firing in which accused 12 was injured and the crowd dispersed, P.W. 2 makes out that he gallantly held his ground even after the police left the

place and was there when the crowd came back with fresh fury. He saw accused 4, 5, 6, 7, 9, 11, 14, 15 and 31 bring the jutkas and horses from

his father''s stable break the former and burn them, and he named several other accused who then broke open the building and brought out yarn

and bed-sheets, etc., and made a bonfire of them. He says that the women who were in the upper floor of the building escaped by the back

staircase.

The other eyewitness mentioned in Ex. P-23 and examined is Subbarayan, P.W. 15, a servant under P.W. 16''s brother Annamalai. He was

standing near the factory in the Coimbatore Road at 12 noon when the mob went into the by-pass road and came back to the Coimbatore Road.

He says accused 1, 10, 16 and 17 exhorted the mob to set fire to the factory. Accused 2, 3, 5, 9 and 12 then set fire to the thatched verandah at

which stage the police came. The mob stoned them and shots were fired one of which hit accused 12. He also deposed to the next active phase

after a temporary lull. Accused 6, 14, 18 19 and 31 broke the jutakas to pieces and set fire to them; accused 5, 7, 11, 14 and 15 broke open the

factory door, accused 18, 24, 25 and 31 brought out moveables and burnt them while accused 8 threw bulbs with inflammable matter on to the

roof of the building.

There are no grounds for any suspicion that the eyewitnesses who appear to us to be natural were not present at the rioting at all. The main

difficulty which the learned Judge has fully appreciated and in our opinion on the whole soundly and correctly surmounted was the danger of

innocent persons being implicated as accused. He has not convicted any appellant on the uncorroborated testimony of P.W. 16 and P.W. 2 alone

and used what we consider to be a reasonable and appropriate test of requiring ample corroboration from other witnesses of the presence and

specific acts attributed to each of the accused before convicting him.

The learned Judge has sentenced accused 1 to 4, 9 and 10 each to rigorous imprisonment for five years. There can be no reasonable doubt

that they were the ringleaders not only in the whole agitation but also in the direct incitement of the mob to senseless violence and destruction.

Accused 1 was the Secretary of the United Weavers'' Association and accused 3 the Secretary of the Karur Taluk Handloom Weavers''

Association. A-9 was president of the committee of action, elected on 23rd June, 1946, with A-4 as Secretary and accused 1, 3 and 10 as

members. As regards A-2 there was material to show that he was one of the leaders in the ration card agitation. There is the evidence of the

Deputy Superintendent of Police (P. W. 3) that accused 2 and 3, the only two he named specifically, actively obstructed the movement of the yarn

from Rajagopala Aiyar''s retail shop before the lathi charge that morning. P.Ws. 2, 11, 15 and 16 all give him a prominent part in the actual

incendiarism. There is abundant cumulative testimony clearly proving the guilt of these six persons as ringleaders in rioting and arson.

It is urged by Mr. Somasundaram that violence and destruction was more probably the work of hooligans, who capitalised an opportunity for

loot, but it is significant that no valuable property was taken away and that even currency notes were found half charred. This was all clearly not the

work of hooligans out to loot but a carefully organized plan of direct violence held in reserve in the event of the first line of passive resistance or

Satyagraha failing. The failure of the Satyagraha plan led the ringleaders to bring into operation a plan of organized arson and incendiarism for

which they appear to have been fully prepared in the last resort. Indignities to passive resistance endured, with men and women being removed

bodily from lying postures, doubtless exasperated them into more violent excesses than they had contemplated.

A separate appeal, Criminal Appeal No. 131 of 1948 has been filed on behalf of Sambasiva Aiyar (A-10) who is not a weaver but is

described as a Mirasdar, the son of a lawyer and the brother of a lawyer now in practice. He endeavoured lo establish an alibi which the learned

judge rightly rejected to the effect that he look two persons injured in the lathi charge to Dr. Menon, D.W. 8, and was with him all that morning.

The doctor''s evidence is merely to the effect that A-10 brought these persons to him some time between 10 and 12 and that he stayed chatting

with him for half an hour. D.W. 8 is A-10''s family doctor and he has gone as far as he could to assist him. The times he has given cannot be

regarded as in the remotest degree conclusive. P.Ws. 2, 14, 15 and 16 have all given A-10 a most active part all through amongst those who led

the crowd. The convictions of accused 1 to 4, 9 and 10 under Sections 147, 435 and 436, Indian Penal Code, are confirmed. We find rather

curiously no direct count of arson against the first accused and only constructive counts though in paragraph 132 of his judgment the learned trial

Judge finds rightly that he was one of the persons who set fire to the thatched verandah. In view of the number of protracted trials in the lower

Court which these appellants have undergone and the fact that they have been in remand also throughout we reduce the sentences on these

ringleaders to one year''s rigorous imprisonment u/s 147, Indian Penal Code and to three years'' rigorous imprisonment under each of the arson

counts, the sentences to run concurrently.

As regards the other appellants, the learned trial Judge has carefully considered, each case separately. We are in agreement with his finding

that they are all guilty of rioting and arson with the exception of accused 13, 18, 24, 25 and 30. In their cases we think that the learned trial Judge

deviated from the strict test of evidence he adopted in requiring corroborative testimony. As against the 13th accused whose age is given as 20

there is only the evidence of P.W. 2 that he helped to break open the lock of the factory. He was, it is true, a weaver and Secretary of the Dravida

Kazhagam but there is nothing to show any direct connection between this association and the weavers'' agitation. As regards A-18 he claimed to

have his own loom and a separate ration card. He has been implicated only by P.Ws. 2 and 15. As regards the 24th accused there is only the

evidence of P.W. 15, that he helped to roll an iron safe and put it on the bonfire. The age of the 25th accused is given as only 17. He and the 24th

accused were once employed in P.W. 16''s handloom factory and they fall really into the same category. As against this youth there is only the

evidence of P.W. 2 that he brought out some tables to the bonfire and that of P.W. 15 that he set fire to some cycles. As regards the 30th accused

there is the evidence of P.W. 2 that he brought an iron safe and threw it in the fire. But the sub-Inspector, P.W. 17, admitted in his favour that

P.W. 2 did not tell him this fact in the investigation. P.W. 14, it is true, corroborated P.W. 2 but we do not consider that this evidence is

conclusive.

We think on the evidence that accused 13, 18, 24, 25 and 30 are border line cases entitled to the benefit of a reasonable doubt. We therefore

acquit them on all counts and set them at liberty, The convictions of the other appellants are confirmed under Sections 147, 435 and under 436

read with Section 149, Indian Penal Code. The findings on other counts are unnecessary and set aside.

As regards the sentences we observe that accused 3, 6 and 11 whose convictions we are confirming are young men aged 21, 19 and 22

respectively. We have considered the possibility of applying to them the provisions of the Probation of Offenders Act and placing these misguided

youths u/s 6 under the care of the District Probation Officer. We are, however, unable to do so as the Act cannot be applied to grave offences

such as arson u/s 436, Indian Penal Code, which is punishable with transportation for life. It is regrettable that A-3 though only 21 should have

been so conclusively proved to have been a prominent ringleader in violent crime of this description. The sentences on the other appellants (except

A-6) namely A-5, 7, 8, 11, 14, 15, 19 are reduced to six months'' rigorous imprisonment u/s 147 and to one year''s rigorous imprisonment under

Sections 435 and 436 read with Section 149, Indian Penal Code, the sentences to run concurrently. In view of the age of Gopal (A-6) and his

being a misguided youth we reduce his sentence to 6 months'' rigorous imprisonment u/s 147, Indian Penal Code and to the period already

undergone (more than 8 months) on the other counts, the sentences to run concurrently.

The fines imposed on accused 4, 5, 10 and 19 are confirmed as it is just and appropriate that malefactors who are possessed of property and

means should make a contribution to the costs of their prosecution which in these cases has been a heavy-charge on the tax-payer.

I come now to the Crown Appeal, Criminal Appeal No. 163 of 1948 filed against the acquittal of accused 12, 16, 17, 20, 28 and 31 to 36.

We have been taken through the evidence against them by the learned Public Prosecutor. A-12 was the person shot in the knee from Police fire

and according to the trial Judge aimed for life. He was clearly amongst the crowd but was fortunate in that Ws. 2, 14 and 15 who depose that he

set fire to the thatched verandah did not say that to the investigating Inspector. As regards the 16th accused, for instance, he was a partner in the

Pasupathi Textiles situated opposite to the factory of P.W. 16. There was clearly material to show differences between accused 16 and P.W. 16

arising out of municipal politics. The learned Judge rejected some alibi evidence adduced for the 16th accused as false, but at the same time he

quite rightly gave the 16th accused the benefit of the doubt observing that Exhibit P-23 gave this accused a minor part although the witnesses made

him out to be a ringleader. It is unnecessary to consider separately the cases of the other accused. In no case is there overwhelming and conclusive

testimony which would justify the setting aside of the acquittal. As regards the 17th accused against whom alone the learned Public Prosecutor

would press the appeal, he is a young Chettiar student aged 21 mentioned by P.Ws. 2, 14, 15 and 16 as a person who took an active part in the

riot. He was acquitted on the ground that Exhibit P-23 placed him in the appendix of assistants and gave him no leading part. He is the only person

who was released on bail early in this case. It is brought to our notice that he has been convicted in the next batch of arson appeals we are

considering. We do not find sufficient and cogent material to justify a reversal of his acquittal by the learned Judge in the present case.

29.The Crown appeal accordingly in the result is dismissed in toto.

30 Before leaving this case we feel called upon to deal with two points of police procedure in investigations which Mr. Somasundaram for the

appellants has canvassed at length presumbly in a belated attempt in this Court for the first time to question the bona fides of the entire police

investigation. Both points he raised are based on replies given by the Inspector Sri Ram (P.W. 17) to questions put in cross-examination in the trial

Court by the learned advocate who it is said was once a Deputy Superintendent of Police. He seems to have used his knowledge of police

procedure to heckle, not very seriously to the police investigating officer. 31. The Inspector said in cross examination:

I cannot say whether it is my duty to record the names of the accused in the General Diary.

From this Mr. Somasundaram has argued that no names of the accused at all were noted in the General Diary entry about this case. The

General Diary entry itself has not been exhibited for the defence. It is sufficient to say that u/s 154 of the Code of Criminal Procedure, the

substance of a first information has to be entered in a book in such form as the Provincial Government may prescribe and that under Madras Police

Standing Order No. 538 the book prescribed by Section 154, Criminal Procedure Code, is the first information book in form No. 78 in which the

present F.I.R. (Exhibit P-23) was admittedly recorded. The General Dairy entry need not give, as the learned Public Prosecutor points out, all the

names of the accused in cognizable offences and police Standing Order No. 696 specifically says that details of complaints already given in the F.

I. book and the case diary need not be recorded in the General Diary.

The second point is based on the Inspector''s frank and straight-forward admission that he made notes as he examined each witness with the

aid of which he later typed his diary; and that his notes which were "" scribbling "" were not preserved. There is no suggestion that the substance of

the examination of each witness was not separately recorded in the case diary. Mr. Somasundaram contended, as we understood his argument,

that there was an obligation on P.W. 17 to preserve, keep and produce when required all the rough notes he made of the examination of

witnesses. He relied on a Nagpur case Baliram v. King Emperor ILR (1945) Nag. 141, in which the scope of Section 162 of the Code of Criminal

Procedure was considered and some strictures passed on the police procedure in suppressing records of statements from the witnesses during

investigation. In that case some witnesses said their statements were reduced to writing. The investigating officer said he had made notes of their

statements but had destroyed them. The case diary did not contain the substance of the statement made by each witness examined and there was a

clear breach of Section 162, Criminal Procedure Code. It is not imperative for an investigating officer to make any written record at all of the

statement every witness he examines u/s 161, Criminal Procedure Code makes to him. This is made quite clear by Section 161(3) added by Act II

of 1945 which reads as follows:

A police officer may reduce to writing any statement made to him in the course of an examination under this section. If he does so, he. shall make a

separate record of the statement of each such person whose statement he records.

If such a separate record appears in the case diary there is a sufficient compliance with the statutory requirements of Section 162, Criminal

Procedure Code, which only entitles an accused to a copy of the record of such statement "" whether in a police diary or otherwise."" We are unable

to find any authority for the position that Section 162 imposes a statutory obligation on an investigating officer to produce all his rough notes and

jottings out of which he writes up his case diary for the day. We have been referred in this connection to a recent Bench decision of this Court in In

Re: Bheemavarapu Subba Reddi and Another, . In that case an investigating Inspector said in the box that he could not say from his case diary

what each witness had stated, that he made rough notes and did not prepare individual statements, and that he had the rough notes with him but he

was not asked even to produce them. Our attention has been drawn to the following observation by Bell, J. : "" It is no doubt desirable as was

pointed out by Balaam v. King Emperor ILR (1945) Nag. 141 that notes, however and whenever taken by the police officer, should be

preserved.

We do not after a careful perusal of that decision consider that the scope of that observation extended to casting on a police officer any duty of

preserving and producing all his rough notes made in an investigation. Horwill, J., in the same decision made the following observation:

Although no irregularity was committed by the taking of notes for the preparation of the case diary instead of recording statements, it seems

desirable that statements should be recorded where reasons of urgency do not preclude this course.

With respect we are in complete agreement with this observation, the law as it stands, not making it imperative on a police officer to make any

record at all of a statement made to him in the course of an investigation. All that an accused is entitled to demand is that when a written record is

kept of the statement of the witness to an investigating officer he shall be entitled to a copy of that record; and if the case diary contains as it should

the substances recorded separately of the statement by each witness to the police officer, the latter is under no obligation to preserve or produce

any other record, rough or otherwise of such a statement. It has been urged before us that the production of the rough notes or rough statements

recorded may disclose some accidental slip or clerical error which when compared with the case diary entry may be material to the defence. But

Section 162 of the Code of Criminal Procedure has made no provision for such a remote contingency. Rough notes unlike the case diary may

easily be brought into existence and any such material slip or error can easily be corrected to accord with the case diary before the rough notes are

produced for Court''s inspection. To permit an accused person to enforce the production of all the rough notes made by a police officer in his

investigation and to require a police officer to preserve them would be to bring into court an untidy mass of scribbled matter which will serve little

purpose and we shall have police officers laboriously making fair copies of their scribbled investigation notes for judicial assimilation and

consideration. It is only when a police investigating officer makes a written record of a statement of a witness, and is shown not to have

incorporated it as a separate statement in his case diary that he can be said to be guilty of a breach of a statutory obligation.

[His Lordships then dealt with the merits of the other appeals arising out of the case ].

Govindarajachari, J.

I am in substantial agreement with my learned brother, but I desire t6 add a few observations.

One is with regard to the evidence of P. Ws. 12 and 13 in S. C. No. 28 of 1947. The learned Public Prosecutor with his usual fairness

intimated that he would hesitate to ask us to rely on that evidence in view of the fact that the Assistant Sessions Judge was not. himself prepared to

act on it. Though, as my learned brother has observed there may be room for doubting whether the rejection of their evidence by the Court below

is altogether justified, it is, in my opinion, safer that the case is judged apart from and excluding the evidence of these witnesses. I would only

emphasise that that is how we have judged.

There has been some discussion as to whether in S.C. No. 28 of 1947 the defence had to exhibit the General Diary and whether and to what

extent they obtained an admission in regard to its contents from the Inspector of police, P.W. 17. It seems to me that P.W. 17 admitted that the

names of all the accused were not recorded in the General diary and if this is all that the defence desired to rely on, there is no need to exhibit the

General Diary. But this, however, does not exclude the possibility of the name of the first accused having been entered with the rest of the accused

being indicated by an etc., of the total number of the accused having been given. If the defense desired to exclude these possibilities also, they

should either have had the General Diary included in the evidence or cross-examined P.W. 17 further. However, in view of Police Standing Order

No. 696 there is no need to enter in the General Diary details of complaints already given in the F. I. R. book.

The following answers were elicited from the investigating officer, P.W. 17:

The case diary is typed. As I examined the witnesses, I took notes. Later I had the matter typed in the diary. The notes were not preserved. They

were scribbling.

Relying on this evidence Mr. Somasundaram, the learned advocate for the appellants argued that there was a serious irregularity by way of

non-compliance with the requirements of the Code of Criminal Procedure.

Section 161 of the Code deals with examination of witnesses by the police u/s 161(3)

a Police Officer may reduce to writing any statement made to him in the course of an examination under this section. If he does so, he shall make a

separate record of the statement of each such person whose statement he records.

When such statement is recorded whether in the Police Diary or otherwise Section 162 requires the Court, on the request of the accused, to grant

a copy of such statement, in order that any part of it, if duly proved may be used to contradict the witnesses making it in the manner provided by

Section 145 of the Evidence Act. It is no-doubt not imperative on the investigating officer to record the statement of a person examined by him u/s

But if he, records the statement, it is clear that it must be preserved. This is implicit in the right accorded to the accused of obtaining a copy of

it. The statement need not be taken down verbatim. The investigating officer need do no more than record a gist of the statements made to him

(see Guruva Vannan, In re (1944) 1 M.L.J. 253). But on the clear language of Section 161(3) itself the statement of each person must be

separately recorded. The reason is obvious. For the purpose of contradicting a witness by a previous statement of his, a condensation of what he

and others said will be of little practical value. It is also extremely doubtful whether such an abstract can be described as a previous statement of

the witness reduced to writing within the language of Section 145 of the Evidence Act.

That Section 162 confers on the accused protection and privileges of a substantial nature can hardly be doubted. Destruction of the record so

as to make it unavailable or a refusal to supply the accused with a copy of it will have the effect of depriving him of a very valuable right and will,

therefore, be regarded with gravity. in Bahrain v. King Emperor ILR (1945) Nag. 151, the investigating officer destroyed the notes he made of the

statements of the persons whom he examined during the investigation after incorporating them in the Case Diary. From the facts set out at page

164 of the report it would, however, appear that what was entered in the case diary was a fusion of the several statements into a compact narrative

which afforded no scope to the accused for confronting the witnesses with their statements originally noted clown but destroyed. It was held that in

the result the accused was denied the benefit of the statements recorded u/s 162 for cross examination of the witnesses concerned and that this

constituted a serious departure from the mode of trial prescribed by law and occasioned failure of justice rendering the conviction liable to be

quashed. In Pulukuri Kotayya v. King Emperor . the irregularity lay in not making available to the accused till a. late stage of the trial, the note

book of the police Sub-Inspector containing statements of the witnesses he had examined at the inquest. It was held that such a failure was

undoubtedly a breach of the proviso to Section 162 of the Code which had, however, in the peculiar circumstances of the case, not occasioned

any prejudice to the accused, that the case consequently fell u/s 537 and the trial was valid notwithstanding the breach of Section 162.

Neither of these cases, however, directly bears upon what happened in the present case. In the course of the discussion whether the rough

notes or scribbling made by an investigating officer should be preserved, the learned Public Prosecutor drew our attention to a decision of Horwill,

and Bell, JJ., in In Re: Bheemavarapu Subba Reddi and Another, . In that case Bell, J., observed as follows:

It is no doubt desirable as was pointed out in Baliram Tikaram v. Emperor ILR (1945) Nag. 151, that notes however and whenever taken by the

police officer should be preserved.

With great respect this observation, judging from its wide language, derives no support from Baliram''s case ILR (1945) Nag. 151, the exact

scope of which I have already discussed. It seems to me, however, on a close examination of the rest of the judgment of Bell, J. that he did not

intend to lay down any general rule such as the observation just quoted may seem to suggest. I note in particular that the learned Judge stated that

nothing is more natural than that he (the investigating officer) should make rough notes of information which later he would set out in proper form in

the case diary for the scrutiny of his superior officers.

The rough notes were available in that case and on their being inspected it: was found that the case diary was an amplification of those notes.

Horwill, J., pointed out that although no irregularity can be said to have been committed by the taking of notes for the preparation of the case diary

instead of recording statements, it is desirable that such statements should be recorded where reasons for urgency do not preclude that course. The

learned Judge drew a distinction between notes which are in the form of summaries of statements made by individual witnesses and notes which

give a very brief summary of the narrative found in the case diary and do not take the form of summaries of individual statements made by the

various witnesses. In the former case according to the learned Judge the notes should be made available to the defense. In the latter the police

officer would be justified in objecting to the production of his notes. In the case of In Re: Bheemavarapu Subba Reddi and Another, , however, the

police officer did not so object.

In view of the judgment in the case of In Re: Bheemavarapu Subba Reddi and Another, , the observations in which I have set out at some

length, it seems to me that it cannot be maintained that there was anything irregular in what P.W. 17 did in the present case. I may add that Mr.

Somasundaram did not suggest anything against the bona fides of the officer who seems to have impressed the Assistant Sessions Judge by the

straightforward manner in which he deposed. Having had the benefit of a full discussion by the Bar I have thought it desirable to indicate my

opinion as to whether the existing practice which evidently P.W. 17 followed is irregular. In my opinion, for the reasons stated, it is not.