Rajagopalan and Anr. vs Emperor

Zafrulla Khan, J.—(Spens G. J., concurring.)During the early hours of the morning of 20th September 1942, a large number of persons

stated to be between sixty and seventy, including the two appellants here, armed with deadly weapons, marched to the salt factory at

Kulasekharapatnam, inflicted injuries upon the guards and peons, secured their persons, stole a couple of guns and set fire to one of the sheds.

Thereafter most of them departed. At that stage an Assistant Inspector in charge of the factory appeared on the scene with a rifle to which a

bayonet had been attached. He had apparently no cartridges with him, but proceeded to chase away such of the rioters as were still within the

compound of the factory with the help of the bayonet, inflicting one or two injuries which were not of a serious character. While he was thus

engaged, a score or so of the rioters who had gone out of the compound rushed back into the compbund, and seven or eight of them, including the

appellants, set upon him with their weapons and inflicted altogether sixteen injuries upon his person, several of them serious, as the result of which

he died on the spot.

Twenty-two of the rioters were put up before the Special Judge of Tinnevelly for trial under the provisions of ordinance No. 2 of 1942, on

charges of rioting, causing mischief by fire, dacoity and murder. Several of them were convicted of various offences, the appellants being

convicted, among other offences, of murder. They were sentenced in respect of that charge to death. Their appeal to the Madras High Court was

dismissed, and they have come up to us on appeal on a certificate under Section 205, Constitution Act.

The constitutional questions raised in the case are concluded by our judgment in Piare Dusadh v. Emperor (''44) 31 A.I.R. 1944 P.C. 1 on the

merits, counsel for the appellants confined his submission to the question of sentence. It was contended that the appellants could be held guilty of

murder only by virtue of the provisions of Section 149, Penal Code, and that in a case like that a sentence of transportation for life was more

appropriate than the sentence of death. On behalf of the Crown it was urged that the ease of the appellants fell within the purview of Section 34,

Penal Code. In the view that we take, it is unnecessary to decide whether Section 34 would or would not apply to the facts as found by the High

Court. We are unable to accede to the contention that in case of a conviction under Section 302, Penal Code, read with Section 149, the

appropriate sentence in all cases must be transportation for life. The question of sentence must in each case depend upon the facts of the case. Had

there been a finding that the appellants, though they were among the rioters some of whom in pursuance of the common object of the unlawful

assembly as at that stage constituted, caused the death of the Assistant Inspector, had themselves taken no part in the assault upon the deceased,

there might have been some force in the suggestion that, the lesser sentence would meet the ends of justice in their case. There is no such finding in

this case. On the contrary, the finding is that the appellants were among the seven or eight persons who inflicted the large number of injuries which

the deceased received, though the High Court did not go so far as to accept that part of the evidence which indicated the nature of the injuries that

the appellants had actually inflicted. Having regard to all the circumstances of the case as disclosed in the evidence, we are not disposed to hold in

the case of either of the appellants that the sentence of death is inappropriate.

It was suggested with regard to appellant 1 that there was doubt whether he had actually inflicted any injury upon the deceased at all, inasmuch

as the evidence on this part of the case is that he cut and stabbed the deceased (one witness stating that he did so with an aruval), whereas he was

alleged to have been armed with a gun. The evidence however discloses no such conflict. Appellant 1 is alleged to have been armed with a gun

during a meeting that was held under his presidentship at some distance from the salt factory, in which it was decided to march to the factory and

to commit the riot. The assault upon the deceased took place towards the close of the incidents of that morning, and it might well be that during the

interval appellant 1 had exchanged the gun for an aruval or other cutting instrument. No attempt was made during the course of the cross-

examination to discredit that part of the testimony of the witnesses who stated that appellant 1 had cut and stabbed the deceased. The witnesses

were on this point unanimous. The appellants were in our opinion rightly convicted of the offence of murder and the death sentence is appropriate.

As no other point was sought to be raised before us, the appeal is dismissed.

Varadachariar, J.

I feel some difficulty in sustaining the sentence of death imposed on accused 1. His counsel did not challenge the finding that the two appellants

were ''amongst those who actually chased Mr. Loane when he was bayoneting the rioters inside the compound of the factory.'' The word ""chased

is perhaps apt to mislead. All that the evidence shows is that these persons ran from several directions towards the spot where the Assistant

Inspector was chasing and bayoneting some of their comrades. The question then is, under what provision of law is accused 1 to be convicted with

reference to the murder of Mr. Loane.

The Special Judge had no difficulty in convicting him under Section 302, Penal Code, because he accepted the evidence of P. Ws. 1, 2, 4 and 5

who deposed that accused 1 was one of those who cut and stabbed the deceased. P.W. 5 specifically stated that accused 1 cut the deceased with

an aruval (a big curved knife). This evidence was criticised before the High Court with some force, on behalf of the appellants. It was pointed out

that these witnesses who had themselves been injured and had been tied up with, ropes and left to roll on the ground at a spot not less than 40 feet

away from where the Assistant Inspector was being attacked could not have observed which amongst a crowd of about 20 persons surrounding

the deceased directly inflicted cuts or injuries on him. It also appears from the evidence that about this time the hut which had been set fire to had

more than half burnt down and there was no other light in a dark night. In view of this criticism, the learned Judges observed, rightly, if I may say

so, asfollows:

It may be that having regard to the fact that the persons who chased Mr. Loane were 20 in number, these witnesses were not able to see the

particular accused specified by them actually cutting and stabbing him. But there can be no doubt that these witnesses saw the accused specified

by them among the persons who chased Mr. Loane and presumed that they participated in the actual attack.

This being their opinion on the direct evidence connecting accused 1 with the murder, the learned Judges had to deal with the argument urged

with reference to Sections 34 and 149, Penal Code. On this, they say:

Mr. Jayarama Iyer would have us hold that at the worst appellants 1 and 2 could be held guilty of murder only in virtue of Section 149 and not

Section 34, Penal Code, and he urges that in this view the lesser sentence should be awarded. We are unable to accept this contention. Having

regard to the probabilities of human conduct, everyone who chased Mr. Loane cannot but be reasonably considered to have shared the intention

to kill him.

I understand this observation to imply that if the case had to be dealt with as one falling under Section 802 read with Section 149, Penal Code, the

learned Judges would not have been prepared to confirm the death sentence. They were obviously dealing with the case as one falling under

Section 34. I do not therefore think that we shall be justified in affirming the sentence of death independently of the question whether the case falls

within Section 34 or only under Section 149. Even with reference to the distinction adverted to in the judgment just delivered by my Lord and my

learned brother as to the practice in awarding sentence in cases falling under Section 149, it would not be unimportant to ascertain whether

accused 1 was only among those who were said to have run to the spot where the Assistant Inspector was bayoneting some of their comrades or

also himself took part in the assault upon the deceased.

There is this noticeable distinction in the evidence between the case against accused 2 and the case against accused 1, viz., that both before the

assault on the deceased and after the assault on the deceased, there is specific evidence that accused 2 was armed with a hatchet and it was also

the prosecution case that it was accused 2 that cut P.W. 2 on the head with a hatchet. As regards accused 1, there is no specific evidence that he

carried any other arm except a gun, though it is not clear at what stage of the proceedings he carried this gun. From the medical certificate relating

to the wounds on the deceased, it is not possible to say that any of the wounds are likely to have been inflicted by accused 1, if he had only a gun

and it is nobody''s case that he fired the gun at any time. When the learned Judges of the High Court have not relied on the direct evidence of P.

Ws. 1 to 5 to the effect that accused 1 stabbed the deceased or cut him with an aruval, I do not think that those very statements can be relied on

as proving that defendant 1 carried an aruval or other cutting instrument; nor would it be right to treat the matter as one in respect of which the

burden of proof lay on accused 1, because this is not a case in which he was relying on any of the general exceptions or special exceptions or

provisos. It is also not without some significance that accused 1 is not mentioned by any witness as having inflicted any injury on the peons P. Ws.

1 to 5. I am therefore unable to draw the inference that accused l must have taken some part in the acts which resulted in the death of the Assistant

Inspector and without such an inference it will be difficult to bring the ease within Section 34, Penal Code.

Even as regards the question of ""common intention,"" I am not at all sure that the learned Judges of the High Court were justified in assuming that

those who chased Mr. Loane ""did so to wreak vengeance."" The position was that after the shed had been set on fire, the crowd was dispersing in

various directions and most of them had gone out of the compound of the salt factory. It was at this stage that Mr. Loane appeared on the scene

and chased and bayoneted some members of the crowd who were actually running away. If at that stage some other members of the crowd who

were on the point of dispersing went to the spot where their comrades were being attacked, it was quite likely, as the learned Judges also

recognised, ""that their main object was to rescue their comrades."" But they follow this up with the remark,

the conclusion that they intended to effect that object by killing Mr. Loane is irresistible, as they must have realized that they could not achieve that

object otherwise.

I am not satisfied that this does not go too far. The scattering mob very probably acted only on an impulse to go and see what was happening to

their comrades and it seems too much to impute to them sufficient knowledge or a common intention that they could or should be rescued by killing

the Assistant Inspector. Our attention was drawn to the observations of the Judicial Committee in Barendra Kumar Ghosh v. Emperor (''25) 12

A.I.R. 1925 P.C. 1. That judgment proceeds on the footing that the common intention to kill the postmaster was clearly established and the act of

the accused whose conviction was challenged was also proved beyond doubt, namely, that he had fired at the postmaster, though the shot missed

and the postmaster was killed by a shot fired by another of the co-accused. There was accordingly no difficulty in holding that the case was

covered by Section 34, Penal Code. The discussion was as to the result of its application. Here, the common intention of the crowd and some

act"" on the part of accused 1 have both to be inferred from the fact that the Assistant Inspector was murdered and that the accused was one of

the crowd who ran to the place where the deceased was chasing some of the rioters.

The question however is bound up with inferences of fact with which it is not the ordinary practice of this Court to interfere and, as my Lord

and my learned brother think that the death sentence was justified, I leave the matter there, with this expression of my doubt.