Judagi Gope and Others vs Emperor

Meredith, J.—The five appellants have been convicted by the learned Additional Sessions Judge of Patna, in agreement with a 6 to 1 majority verdict of a jury, under Sections 302, 148 and 147, I.P.C. Under & 302 all five have been sentenced to undergo transportation for life and have further been sentenced to pay fines of Rs. 50 each, in default to undergo further six months rigorous imprisonment. Two of them have been convicted u/s 148, and the other three u/s 147, but there have been no separate sentences under these Sections. The case arose out of an occurrence which took place on 16th May 1939, at village Rupaspore, police station Hilsa. The prosecution case was that there was enmity between one Bilfa Dusadh and his brother Kirpali Dusadh on the one side of Ramsaran Das and his people on the other. According to the story of the prosecution, on Tuesday, 16th May, Bilfa Dusadh went to his khaiihan in village Bupaspore and found his heap of straw (punj of newari) disturbed and partly removed.

Seeing this he started abusing the unknown persons who had done that. Ramsaran Das was in his own khalihan nearby, and hearing the abuse he shouted that Bilfa was abusing him and that he should be beaten. Thereupon, Ramsaran''s son Judagi came along and threw Bilfa down, and then Ramsaran, Judagi, Ramsaran''s cousin Kamal, Kamal''s sons Madan and Ramdeo, and also Gopi Das, brother of Ramsaran, all started assaulting Bilfa. Hearing the noise Bilfa''s brother Kirpali was coming to save his brother when a mob of 15 or 20 persons, most of whom were said to be related to Ramsaran Das, surrounded Kirpali and severly assaulted him. After the assault on the two brothers, Ramsaran led the whole mob to Eirpali''s house where Kirpali''s wife Bulkania was injured, and the mob looted away various things belonging to Kirpali. It was also said that Bilfa''s wife had attempted to protect Kirpali when he was, assaulted and had received injuries: It was said that Bilfa Dusadh died within a few hours as a result of the injuries received in the assault.

The defence case which was not however put forward expressly by any of the accused in their statements, or in a written statement, and had to be gathered from the suggestions in cross-examination, was that the assault on the deceased Bilfa took place some time on the Monday night and nobody saw the assault or the assailants, When the assault was discovered in the morning, the wife of the deceased Bilfa and the wife of Kirpali started abusing some persons whom they suspected and these persons assaulted the two women and Kirpali on the morning of Tuesday, the 16th. The defence case further was that none of the accused took any part in either of the two occurrences and that they had been implicated falsely on account of enmity borne to them by Sanehi (P.W. 1), Mahadeo (P.W. 2) and Ors.. Originally 23 persons were placed upon trial in respect of the entire series of incidents, but two of them were discharged by the committing Magistrate.

The remaining 21 came before the learned Additional Sessions Judge who ordered the trial to Be split up and that the five appellants together with Ramsaran Das, the alleged assailants of Bilfa, should be tried separately in the case now before us; the assailants of Kirpali and the women being placed for separate trial. As I have already indicated, the trial was held with the aid of a jury, and Ramsaran, who had set up a defence of alibi, was acquitted by the jury by a 4 to 3 majority verdict. The Judge accepted that verdict. With regard to the appellants, accepting the 6 to 1 majority verdict he convicted the appellants in the manner I have already described, Madan and Gopi being convicted u/s 118 besides Section 302 and Judagi.Ramdeo and Kamal u/s 147 as well as Section 302. He further directed that out of the fines, if realized, Rs. 100 should be paid as compensation to Marachhia, the widow of the deceased Bilfa.

In appeal it is urged that there were serious misdirections and non-directions in the charge preventing the appellants from having a fair trial. I may say at once that I consider that this is so; that there is the possibility in this case that the appellants were prejudiced by misdirection and non. direction and that the verdict therefore cannot be upheld and the convictions must be set aside. I shall refer only to two of the misdirections or non-directions which have been alleged. The common object specified in the charges under Sections 148 and 147 was not to kill Bilfa but merely to assault him, yet all the accused were charged with the substantive offence of murder u/s 302. The learned Judge took much trouble in explaining to the jury the provisions of Sections 300 and 299, Penal Code, and in endeavouring to make them understand the exact difference between murder and culpable homicide not amounting to murder.

On the whole I am not prepared to say that he did not perform this difficult task competently and correctly. He did not however frame any alternative charges under Sections 304, 326 or 325, Penal Code, nor did he explain to the jury that it was open to them to convict for one of these lesser offences. In my view he should have told the jury clearly that even if they believed that the accused had jointly killed Bilfa, still it was open to them to convict, not u/s 302, but merely u/s 304, or even u/s 326 or Section 325, if they considered that the necessary intention or knowledge to constitute the offence of murder had not been established on the part of the accused.

Moreover, this was a case where it was not proved, or even alleged, that any individual accused had inflicted an injury which could have been fatal in itself. The case was that death was due to the effect of all the injuries, inflicted by all the accused, combined. Therefore if a conviction was to be made u/s 302 it could only be by the application of the principle laid down in Section 34, Penal Code, or under the provisions of Section 149 of the Code, yet not only was no mention of either of these Sections made in the charges, but the Judge said nothing at all about them, and made no attempt to explain their provisions to the jury. It is, in my opinion, absolutely necessary that a Judge in a case of this kind where Section 34 is really being applied, should explain to the jury that before that Section can be applied it must be shown that the offence was committed by the accused in furtherance of the common intention of all.

It was never put to the jury that the intention of different accused persons might have been different. Some might have intended murder, while-some might have intended no more than assault, and might not have realized that anything more than assault was intended by any of them. Those who had not the common intention of committing murder or the knowledge of its likelihood (and the Section 147 charge only involved the common intention to assault) could not be convicted of murder u/s 302, Penal Code, either substantively or by the application of Section 34 or Section 149. There is nothing at all in the charge from which the jury could have appreciated this vital fact.

It was essential that the nature of Section 34 at least should have been clearly explained, and it would in my opinion have been better to explain Section 149 also. It was necessary to explain this, and, as I have already indicated, it was also essential to explain to the jury the possibility of convicting under the lesser Sections. I would go so far as to say that in my view it is better in case like this actually to frame the alternative charges under the lesser Sections and also to incorporate Section 34 or Section 149 therein. No doubt, it may not be legally necessary to do this, but if it is done the risk of the explanation being over looked, and of the jury not understanding the position, is avoided. If the Sections are included in the charges the jury are much more likely correctly to appreciate the legal position.

As matters stand, it seems to me possible that this jury considered it their duty either to convict u/s 302 or to acquit. They might perhaps even have considered that they must either convict all the accused u/s 302 or acquit all of'' them; that is to say, the charge was put-in such a way that they might have thought that they could only convict or acquit wholesale u/s 302.

The course which I have recommended was all the more necessary in the present case in view of certain curious features in the medical evidence. The doctor has described ten external injuries. Of these all but two were on the arms or legs, and the two exceptions were both apparently minor injuries. One was an abrasion 1 3/4" x 3/4" on the left side of the forehead. There was no fracture of the skull, and this injury in itself could not have been fatal. The other was an echchymosis 3 1/2" x 1/2" on the right side of the back which was probably a lathi weal.

This also could not have been a fatal injury. The curious feature of the evidence is that the doctor also says that four of the ribs on the left side and six ribs on the right side, that is to say, no less than ten ribs in all, were fractured. As far as can be told from the evidence as it stands, there were no external injuries to account for the fracture of these ribs, unless the single lathi weal on the back could account for them, and that seems hardly possible. The doctor has stated that the ribs might have been fractured by being forcibly thrown on the ground or by blows of fists. That explanation, if I may say so as a layman, seems distinctly inadequate, especially in view of the fact that as there was mud and sand all over the chest, the ground must have been comparatively soft. The opinion of the doctor was that the death of the deceased was due to shock and haemorrhage as a result of the injuries mentioned by him, and from what the Sub-Inspector found at the spot it also appears that there must have been extensive haemorrhage, but we are not told exactly what was the cause of this extensive haemorrhage and whether the fracture of the ribs had anything to do with it.

The doctor was never asked whether the injuries described by him were sufficient in the ordinary course of nature to cause death. It was certainly desirable that the doctor should have been questioned at length with a view to determining what must have been the exact intention or knowledge of Bilfa''s assailants, and the fact that the evidence was incomplete in this respect made it all the more necessary that the jury should understand the principles of collective responsibility for such crimes, and the possibility of convicting upon minor Sections.

The other defect in the charge to which I shall refer concerns the cases of individual accused. It is necessary in cases like this that the evidence against such individual accused to Show his complicity should be placed separately before the jury, but the learned Judge has nowhere done this. That it was essential to do so is botne out by the fact that two of the appellants at least were old men. The appellant Gopi is said to have been aged 55 or 56. Moreover, one witness, P.W. 7, says that he was in his house unarmed when the cry of assault was raised.

He added that thereupon Gopi came out armed with a garansa, but it appears that the witness has not said this before the police. No witness, it seems, definitely ascribed any particular part in the assault or any particular blow to this appellant Gopi. The appellant Kamala was even older. His age is put between 60 and 65. The evidence is that when the occurrence Started he was digging with his sons. In the Court of the committing Magistrate it was said that he1 took part in the assault armed with a lathi. In the Sessions Court, however, while one witness (P.W. 7) said he had a lathi, another witness (P.W. 3) merely said that he had a basket. I do not intend to refer to the cases of the other appellants : it is sufficiently clear from what I have said that there were features in the evidence as regards individual accused which it was necessary to place before the jury if they were to take a just view of the case against each. This, however, was never done.

For the reasons I have stated the conviction must, in my opinion, be set aside. The question is, in these circumstances, what should now be done. Should we proceed to consider the evidence and come to pur own finding upon the facts, or should we order a retrial? The Appellate Court may or may not have the power u/s 423, Criminal P.C., to go into the facts in a case like this. I do not propose to express any opinion upon this point. There are rulings in which both views have been taken. Even if we have the power to come to our own decision upon the facts, and to decide the case ourselves as if we were a jury, it does not follow that it is expedient or advisable to do so. The present is a case where, in my opinion, the only proper course is to order a retrial. We have ascertained that this is the course which the appellants themselves would prefer. That means that they wish to stand Upon their fight of jury trial.

That, in my opinion, Settles the matter, and it would not be proper for us to deprive them of that right merely because of a mistake on the part of the presiding Judge. I would allow the appeal, set aside the verdict of the jury and the convictions and sentences based thereon and direct that the case be retried so far as the appellants are concerned. We are informed that the appellants were on bail during their trial. Pending the result of the fresh trial they may be allowed to remain upon the same bail.

Fazl Ali, J.

I agree.