Virupana Gowd and Another, Talari Mariga and Others, Rudra Gowd and Others, Boya Errodu and Others and Sankar Gowd vs Emperor

Spencer, J.—An objection has been taken in appeal that the trial was illegal on account of rnisjoioder of charges and however much this

result after a prolonged trial in Sessions Court may be regretted, I have little hesitation in finding that the objection is sound and that the conviction

of the accused must in consequence be quashed.

It is clear from the Privy Council decision in Subramania Aiyar v. King Emperor ILR (1901) M. 61, that if there has been a misjoinder it will

have the effect of vitiating the trial and cannot be cured by the application of Section 537, Code of Criminal Procedure.

In the present case there was an occurrence on the morning of June 29, when certain persons are alleged to have come in an unlawful assembly

armed with deadly weapons and beseiged the house of Prosecution Witness No. 3 and thrown stones at Prosecution Witnesses Nos. 1, 2, 3 and

the deceased who were inside. There was another occurrence on the same afternoon when certain persons are alleged to have pursued and

overtaken Prosecution Witnesses Nos. 1, 2, 3 and the deceased and murdered the latter individual when they were on their way to Jalibenchi to

lodge a complaint about the morning occurrence before a Magistrate.

The question is whether the morning occurrence and the afternoon occurrence were parts of the same transaction within the meaning of Section

239, Code of Criminal Procedure. The test applied by this Court in Choragudi Venkatadri v. Emperor ILR (1910) M. 502 and more recently in

Koduballi Chathu v. Emperor 3 Crl. L.R. 382, is to see whether the series of acts to be treated as forming the same transaction are connected

together by the essential elements of community of purpose and continuity of action.

From the frame of the charge it might be argued that a common purpose ran through the doings of the mob on the day in question as the object

of the rioters has been given in both of the first two counts as to beat Dodda Basavanna Gowd, Basavanna Gowd and Chennana Gowd.

Even here it may be questioned from a narration of what occurred whether the real purpose of those assembled in the morning was not to obtain

by use of Criminal force certain promissory notes and a receipt from the possession of Dodda Basavanna Gowd, and whether the real purpose of

those who pursued the prosecution party in the afternoon was not to prevent them by use of Criminal force from complaining to the authorities.

Be this as it may, when we come to consider whether there was continuity of action between the morning and afternoon occurrences we find

that the Sessions Judge showed his consciousness that there was not such continuity. He felt the necessity of framing a separate count for the

afternoon occurrence in which he charged the same persons for an offence under the same section of the Indian Penal Code in identically the same

words with the sole difference that the place of offence is given as Korlagondi in the first count and as the fields of Jalibenchi in the second count.

Again in paragraph No. 10 of his Judgment he observes that when Prosecution Witnesses Nos. 1 to 3 set out in the afternoon they had no

expectation of being attacked again and received no warning from any in the village. The prosecution witnesses state that four persons came and

pacified the rioters and then the accused went away and the witnesses came down, a note was made in writing of the names of the offenders, and

the deceased took his meals in the 3rd defendant prosecution witness''s house. Prosecution 2nd witness after describing the acts which he

witnessed in the morning stated ""Thus the morning affair ended"", and everything tends to the conclusion that those matters which have ended for the

time being, if the accused party had not somehow got wind of the next move of the prosecution party which was to go to a Magistrate and try to

get them punished for what they had done in the morning. I have no doubt from what came out at the trial that"" the stone ''throwing and other

assaults in the morning were acts complete in themselves. The procedure would moreover have been simplified by having separate trials and there

would thereby have been no risk of the accused being prejudiced by the difficulty which the Judge and assessors may have felt in keeping distinct

the part taken by each accused in the morning and the afternoon transactions and in having to decide whether any of those present on one occasion

were also present on the other occasion. The easiest course would have been to try the accused first for the offences committed in the afternoon

and to proceed with the trial for the offence committed in the afternoon and to proceed with the trial for the offences committed in the morning after

seeing the result of the first trial,

I am of opinion that the convictions must be quashed and a retrial ordered.

Seshagiri Aiyar, J.

I agree.

Mr. Richmond has taken the preliminary objection that the trial of the accused in this case offends against the provisions of Sections 233 and

235 of the Code of Criminal Procedure. The objections to the joinder of charges was not taken before the Sessions Judge. It is unfortunate that

the case should have been proceeded to trial without raising a formal objection. We cannot on that ground refuse to listen to the argument

regarding misjoinder. In the case of Krishnaswami Pillai v. Emperor ILR (1902) M. 125, no objection was taken to the joinder of charges in the

Sessions Court and yet the learned Judges who heard the case allowed it to prevail.

The facts of the case as set out by the Sessions Judge are these: On the morning of the 29th June 1914 the accused and their servants including

certain Boyas whom the Sessions Judge finds to have taken part in the rioting, came to the house of the 3rd prosecution witness where the

deceased man and his brother and relations were already staying with a view to coerce them into delivering certain promissory notes and receipts.

They had a revolver with them and threatened to shoot prosecution witness 3, if he refused to give up the papers. The complainant''s party went

inside the house and bolted the door. Subsequently at the mediation of strangers, among whom the 8th prosecution witness has taken a leading

part, the accused''s party left the place. Later, in the afternoon at about 1-30 P.M., the complainants'' party started from the house of the 3rd

prosecution witness to go to Jellabenchi with the view to prefer a complaint against the accused for their conduct in the morning. After they had

gone about four furlongs from the house, they were attacked by the Boyas who were joined later on by accused 1 to 13. It was on this occasion

that one of the complainants'' party met his death.

The objection taken is that a single trial of the accused for offences which were committed on these two distinct occasions, namely, at or near

the house of the 3rd prosecution witness in the morning, and half a mile away from the house in the afternoon, is illegal, and that the whole trial is

therefore vitiated. I have been forced to the conclusion that this contention is well founded. It was pointed out by a Full Bench of the Allahabad

High Court in Queen Empress v. Juala Prasad ILR (1884) A. 174, with reference to Section 233, "" that this section contains the general law. The

reason of it is, that the mind of the Court might be prejudiced against the prisoner if he were tried in one trial upon different charges resting on

different evidence. It might be difficult for the Court trying him on one of the charges not to be unfairly influenced by the evidence against him on the

other charges."" The legislature has provided exceptions to the rule contained in Section 233; and these exceptions are so framed as to minimise the

danger of prejudice to the accused by the joining together of more than one offence in the same trial.

Section 235 which is one of the exceptions to the general rule permits of a joinder in cases where the acts are so connected together as to form

one transaction. After giving my best consideration to the question I am unable to hold that the occurrence in the morning and that in the afternoon

are parts of the same transaction. The motive which led to the morning attack was to secure possession of certain documents which the accused

wanted. The motive which animated the second one so far as one may gather from the probabilities and from the evidence given by the 1st

prosecution witness, was to prevent the attacked party from presenting a complaint to the Magistrate in reference to the occurrence in the morning.

I am willing for purposes of argument, to accept the finding of the Sessions Judge that the same men took part on both the occasions. None the

less I am unable to hold that there was any common aim in the two quarrels. In a rough way it may be said that the common object was to injure

the complainants'' party. But that is not the meaning to be attributed to Clause (1) of Section 235. As was pointed out in Emperor v. Sherufalli

Allibhoy ILR (1902) B. 135, ""there must be a continuity and community of purpose and the two occurrences should be so related to one another,

in point of purpose or as cause and effect or principal and subsidiary action."" Applying this test I am unable to say that there was community of

purpose between the two attacks.

As I have pointed out already, the purpose of the second attack was to stifle the prosecution. In a very instructive judgment Lord Blackburn in

Castro v. The Queen (1881) 6 A.C. 229, points out that Courts have not to concern themselves with the ultimate object of the offender in

determining the nature of the transaction. That object may be to cause injury in some way or other to the complainant. But it is the immediate

purpose of the attack that determines the character of the particular transaction. In Lord Halsbury''s Laws of England Vol. 9, page 342, it is said

It is a well established rule of practice that if different felonies, not being different ways of describing the same act, or charged in separate counts of

one indictment, the Judge will put the prosecutor to his election to proceed and offer evidence on one charge only."" The criterion in all these cases

is, what was it that the attacking party had in view as their immediate object. Mere interval of days will not disturb the oneness of the transaction,

nor necessarily the fact that different sets of persons were engaged on different occasions. But if the aim of the accused on the different occasions

is directed towards effecting different purposes, the transactions are different. This view is supported by Choragudi Venkatadri v. Emperor ILR 33

M. 502, and Gobind Koeri v. Emperor ILR (1902) C. 385. The case nearest in point is that reported in Lascari v. The King Emperor 13 C.W.N.

1113. In In re Muslappa (1910) 7 M.L.T. 367., it was pointed out by Sir Arnold White, C.J. that in each case it is a question of fact whether the

acts are so connected together as to form part of the same transaction and referring to the illustrations, he says that the word ""transaction"" should

be read in the ordinary sense of a completed act. I entirely agree with this view. In the present case, the disturbance of the morning was completed

as soon as the mediators intervened and pacified the parties. The second attack began because of an attempt on the part of the complainants''

party to take the matter to the notice of the authorities. The second one cannot be said to be subsidiary to the first nor dependent upon it. They

were two independent acts aimed at securing two independent purposes.

For these reasons I have come to the conclusion that the joinder of the two charges is illegal, and as pointed out by Mr. Justice Ayling in Crl.

Revision Case No. 412 of 1914, the illegality, cannot be cured and the conviction must be set aside. See the judgment of myself and Mr. Justice

Spencer in Criminal Revision Case No. 774 of 1914. The Sessions Judge should be"" ordered to retry the accused.