T.N.R. Tirumalpad, J.C.
1. This is an appeal filed by the six appellants against their convictions under Suctions 147, 333 read with Section 149, 323 read with Section 149, and 440 read with Section 149 . P. C. and against the sentences of one year's R, I, Under Section 147, 4 years' R. J. Under Section 333 read with Section 149, one year's R. I. Under Section 323 read with Section 149 and two years' R- I. Under Section 440 read with Section 149 in Sessions Trial No. SO of 1960 by the Sessions Judge, Manipur- The sentences were ordered to run concurrently.
It was mentioned that out of the six appellants, four persons, namely, Iboyaima Singh, Pisak Singh, Copal Singh and Jura Singh were let off by the Manipur Administration and their sentences were remitted Under Section 401 Cr, P. C-The learned advocate for the appellants stated that he had no further instructions from the said appellants to further prosecute the appeal on their behalf. Thus, the appeal was pressed only by ap- pellants 1 and 3 Th. Bira Singh and Ch. Ibctombi Singh.
2. The prosecution case against them was as follows:
Tile Socialist Party, the .Communist Party and other groups n Manipur started an agitation in April, 1960 for establishment of responsible Government in Manipur. Picketing of .Government Offices and residences of Government servants and blocking of roads in order to paralyse the Administration were resorted to from 11-4-1930. No action was taken against the agitators by the. Munipur Administration till 21-4-1960. On the morning of 25-4-1980, Mr. C. H. Naire, the Districts Magistrate, (who was examined as P- W. .18 in the case) promulgated two successive orders Ext. A/1 and Ext. A/2 under S-C 144., CrIPC banning public meetings, and processions, shouting of slogans etc- and they were proclaimed to the public through loudspeaker by Shri Ganguli, S. D. C. (P. .W. 33) by going round in a jeep. Copies of the said orders were also posted at prominent public places and offices. It appeared that there was some lacuna in the first order Ext, A/1 which was issued at about 4-30 a.m. and hence the second order Ext. A/2 was issued at about 6-00 a.m.
3. We are concerned in this case with a serious occurrence which look plane between 2-00 p.m. and 5-00 p-m.. on the very same afternoon. Anticipating trouble near the Secretariat Buildings and the Magistrates' Courts, four sec-ions of Civil Police, one Section of Bihar Military Police and one Section Manipur Rifles were posted even from the morning under the command of P.W. 1, Shyamkishore Singh Dy. S. P. to meet any emergency. We are no: much concerned with what took place before 2-00 p.m. It is enough to say that a crowd of 200 to 400 persons had assembled even at 10-00 a.m. in front of the Secretariat building and were shouting slogans and the Police pushed them back and they retreated to a place in front of the Manipur Rifles Ground t0 the south of the Secretariat building. By 3-00 p.m. the crowd had swelled to 2000 and the first appellant Th. Bira Singh was said to how been leading the mob. Thereafter, a lathi charge took place and the crowd retreated further to the south and took its place in front of the Inter State Police Wireless Station and began to pelt stones.
Shri H. Choudhury (P.W. 12) Magistrate, asked the people to disperse after anncuncing tint order under Sec- 144, .CrIPC has been promulgated and that it was fin unlawful assembly. But the command was not heeded. Tear gas and lathi charge were then tried;, but without effect. Two of the Police personnel, namely A. S. J. Nong-thomba Singh, (P.W. 9) and constable; Songjin Paite (P.W. 23) fell unconscious on account injuries received by the continued pelting of stones. The stone; also damaged the glass panes of the Inter State Police Wireless Station and the persons working in the Station found themselves unable to carry on their normal duties.
At about 3 50 p.m., the District Magistrate (P.W. 18) who had corns to the place ordered the firing of 3 volleys and it was done. The crowd then fell back toward the Manipur State Transport Gate and it had further swelled in numbers-The pelting of stones also increased and slings were being used to throw the stones. Some the stones thrown were exhibited at the trial. Many more police personnel got injured by the stones and the situation was getting out of control . The District Magistrate again ordered the Police to fire at about 4-50 p.m., and 3 more volleys were fired and the crowd thereupon dispersed. P. .Ws. .1, 2, 6, 8, 9, 14, 22 to 29 and 39 among the police were also injured. On account of the Police tiring, appellants 2 to 6 were also injured and they were removed some by the Police and some by the crowd to the hospital.
4. The injured Police personnel were also examined by the Doctors A. Boy and S. S. Sarkar and the injury reports Exts. A/13 to A/35 were exhibited at the trial. The injuries on almost as of them except Nongthomba Singh, (P.W. 9) were simple in nature, while the injury of Nongthomba Singh was stated to be grievous. Regarding the injuries on appellants 2-6, we are, now concerned only with the 3rd appellant Chingsubam Ibotomi Singh. The injuries on his body received from the bullets were simple in nature and he was in the hospital till 5-5-1960.
5. On the same day P.W. 1 Shyarnkishore Singh gave the First Information Report Ext. A/3 at the Imphal police Station at about 7-00 p.m. In that report, he has mentioned that the appellant Th. Bira Singh was the leader of the mob- None of the other appellants were mentioned by name lathe said report . A case was registered Under Sections 144/149/332/342 and 307, IPC and Section 7 of the .Criminal Law Amendment Act and P.W. 40 the C. I. started investigation. P.W. 49. went to the Civil Hospital at 7-30 p.m. and found appellants 2 to 6 lying therein in an injured state. He put (hem under arrest and left them in the custody of Police guards, the also arrested Th. Bira Singh, the first appellant on 7-5-1960. According to him. Th. Bira Singh was brought arrested to the Police Station in connection with some 'other cases and then P.W. 40 arrested him for this casein the Police Station compound. The 3rd appellant Ibotombi Singh who was m the hospital till 5-5-1960 undergoing treatment for the bullet wounds, was sent to Jail custody on 5-5-1960.
6. The charge sheet Ext. A/47 against the appellants was submitted by P.W. 40 a 118-7-1980. Now the case against the appellants is that they were among the, crowd on that (Say between 2-00 and 5-00 p.m., that the crowd was an unlawful assembly and was declared ; such, that the appellants were also among those who pelted stones which caused grevious hurt to P.W. 9 and simple hurt to the other Police personnel and caused damage to the Inter State Police Wireless Station.
7. The charges framed against (he appellant were:
(1) of rioting, Under Section 147.
2. of attempting to murder P. W, 9 by causing him greivous hurt, Under Section 307 read with Section 149.
3. of causing grievous hurt to P.W. 9, Under Section 325 read with Section 149.
4. of causing simple hurt to the other Police personnel, Under Section 323 read with Section 149.
5. of causing grievous hurt to P. V. 9 a public servant in the discharge of his duties, Under Section 333 read with Section 149, and
6. of mischief to the Inter State Police ' Wireless Station by pelting stones, having made preparation for causing hurt, wrongful restraint and fear of death to Government servant on duties, Under Section 440 read with Section 149.
8. The learned Sessions Judge convicted all of them under the charges 1 and 4 t0 6 above and sentenced them to one year's P. 1. each under charge 1, one year's R. J. each under charge 4, four years' R. I. each under charge 5 and two years' R. I. each under charge 6. fie acquitted them under charges 2 and 3. With regard to the 3rd charge he stated that the said charge was covered under the more severe charge Under Section 333, I. P. (C. read with Section 149 and that they cannot therefore be convicted for the minor charge. It is not known why in place of the 4th charge Under Section 323 read with Section 149, a charge was not framed Under Section 332, I. P- C. read with Section 149 as all the injured persons were public servants discharging their duties as such. However, it is a minor matter and the appellants have no reason to complain.
9. Before I deal with the details of the appeal, it is necessary to refer to one other matter. On 12-5-1960, the District Magistrate (P.W. 18) filed a' complaint against Th. Bira Singh, the first appellant Under Section 188, J. p. C, in connection with the very same occurrence. It was for disobediences of the order under /Section 144 between 3-00 and 5-00 p.m. on the Indo-Burmah Road in front of the Inter State Police Witness Station, Manipur State Transport and Singh and Co. by terming himself along with 2000 other persons into an unlawful assembly, by shouting insulting slogans of provocative nature and pelting stones at the Police Officers. That case was registered as Criminal Case No. 29-B of .1960, and tried by the same Magistrate who later committed the present appellants r0 trial in the Sessions Court.
Bira Singh pleaded in that case that he was not present at the scene of occurrence at all, that he was falsely implicated and that he did not know about the promulgation of the order Under Section 144. P.W. 1 Shyamkishore Singh and P. W, 12 A. Halim Choudhury were examined (herein in support of the prosecution. The Magistrate convicted Bira Singh on 8-7-1960 to six months' B. I. Incidentally, it may be mentioned that the charge sheet in the present case was filed 10 days after the said conviction, namely, on 18-7-1960. The conviction was taken in appeal to the Sessions Judge in Criminal Appeal No. 58 of 1960. The learned Sessions Judge disbelieved the prosecution case stating that the complaint was filed ,17 days after the; occurrence by the District Magistrate, who was not an eye-witness, that no ex- planation was given for the delay, that the two P.Ws. were interested in suppressing the agitation and that Bira Singh as the Secretary of the Committee organising the agitation held an important position in the agitation and so there was sufficient motive for the P. Ws, to conclude that Bira Singh might have been present at 1he occurrence. The Sessions Judge held that the prosecution did not establish that Bira Singh was present at the occurrence and he allowed the appeal and acquitted Bira Singh on 30-7-1960.
10. The judgment in that appeal was produced in the Sessions trial and marked as Ext, B/2 by the defence. Thus, the Sessions trial against Bira Singh went on in the face of his acquittal in the previous Was on the same facts. It was urged before the Sessions Judge that Section 403, CrIPC was a bar to the trial of Bira Singh on the same facts. But the Sessions Judge held that the charges under Sees. 307 and 333, IPC were exclusively triable by the Court of Session and as such Section 403(4), CrIPC would apply to the case and permit the second trial. the also held that the charges in the Sessions Trial were for distinct offences, though arising out of the same occurrence and so Section 403(2), CrIPC will permit the trial. ' He therefore proceeded with the trial and delivered judgment as stated earlier on 28-3-1961.
11. In the mean time, the Manipur Administration had appealed against the acquittal of Bira ' Singh to this Court in November, 1960. In the said appeal, it was argued for the Administration in order to explain the 17 days delay in filing the complaint that the District Magistrate himself was present at the occurrence and therefore knew personally about Bira Singhs presence at the occurrence and that the delay in filing the complaint was because the complaint had to be filed by a public servant Under Section 195, CrIPC But I agreed with the Sessions Judge and dismissed the appeal and confirmed the acquittal of Bira Singh, on 29-4-1961. In the meantime, the appellants had filed the present appeal against their conviction in the Session, trial.
12. It was first argued for the appellant Bira Singh that his acquittal in the first trial for the offence under Sec- 188 showed that he was no' present at the time of the occurrence, that his defence in the said trial was 'hat ha was not present at the occurrence, that his presence at the occurrence was thus a fact in issue between him and the Administration in the first trial and that in view of the failure of the .prosecution in that trial to establish bis presence resulting in his acquittal, the Manipur Administration cannot prosecute him a second time on the same facts and in any case should not have been allowed to prove it at second trial by adducing further evidence as the matter had already become concluded in the first trial.
In support of this proposition the learned Advocate for Bira Singh relied on the decisions Cauri Shankar Rai v. Emperor A.I.R. 1947 Pat 290, Pritam Singh v. State of Punjab : 1956CriLJ805 and Sarnom Singh v- State : AIR1961All196 . For the responden1 it was argued that Section 403(2) and 403(4) will not bar a second trial on the same facts for the distinct offences for which Bira Singh was tried at the second trial, further that if the second trial was not barred, the prosecution cannot be prevented from leting in evidence in support of the charges.
13. Section 403 Cr.PC so far as it is relevant for the present case is as follows:
403. Persons once convicted or acquitted not to be tried for same offence (I) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. nor on the same facts for any 'oilier offence for which a different charge from the one made against him might have been made Under Section 236, or for which he might have been convicted Under Section 237-
2. A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a serial ate charge might have been made against him on the former trial Under Section 235, Sub-section (1).
3. A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which, he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or .were not shown to the Court to have happened, at the time when he was convicted.
4. A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which, he is subsequently charged.
* * * *
There is no gainsaying the fact that the charges framed at the second trial against Bira Singh in the Sessions Court were for distinct offences though on the same facts- the first trial, was Under Section 188 IPC for violation of the order Under Section 144, which violation was said to have caused obstruction, annoyance and injury to persons lawfully employed and also danger to human life and riot, as mentioned in the complaint in the first trial. It was also alleged in that complaint that Bira Singh was a member of the unlawful assembly consisting of about 2000 persons, though he was not charged Under Section 143 IPC Evidence was also adduced in that: case to show that Bira Singh was leading the mob and calling on the agitators to stand firm, through loudspeaker. In the second trial, the very same charge of unlawful assembly was there and also of rioting, of causing injury simple and grievous, to public servants and obstruction to others, and of mischief by causing damage to the Inter State Police Wireless Station. Thus, it is clear that the facts are the same.
14. The most important fact in issue which was common to both the trials, as far as Bira Singh was concerned was his presence at the scene of occurrence. It was denied by him in both this trials, in the firs;: trial, his presence was held to have not been eroved. In the second trial, what the prosecution in effect a tempted was again to prove that Bira Singh was present at the scene of occurrence. Unless his presence was proved, he could not be responsible for any of the actions imputed against him. So, the question is whether the prosecution can be allowed to prove at the second trial, what they failed to prove as the first trial by seeking to adduce further and fresh evidence.
15. The learned Sessions Judge does no.; appear to have looked at the matter in the above Sight. lie decided the question only as o whether Section 403(1) Cr.PC will be a bar and he stated that it will not be a bar, because of Sections 403(2) and 403(4). But Sections 403(2) and 403(4) do not throw any light on the question as to whether the prosecution can be allowed to prove at the second {trial, facts in issue which had already become concluded between the parties in the first trial.
16. In the decision A.I.R. 1947 Pat 290, Mr. Ray J. has held that in a case where a Magistrate acquitted certain accused persons Under Sections 147 and 323 IPC there cannot be a second trial on the same facts under ,S- 188 IPC for disobedience of an order Under Section 144 Cr. P, C. It is the obverse of the present case. Here, the was Under Section 188 in the first instance and the second trial was sought to be held Under Sections 147, and 323 etc. The learned Judge has even gone the length of stating that Sections 403(2) and 43(4)will not permit the second trial and the prosecution cannot be allowed to have the luxury of taking another chance of getting the accused persons .convicted after flailing to substantiate the charges based on the same facts.
17. I am not prepared to go to the length of holding in the face of Sections 403(2) and 403(4) Cr.PC that the second trial will be altogether barred. I find from a perusal of the Patna decision, that in the first trial Under Sections 147 and 323, the Magistrate had disbelieved that the occurrence at all took place and that in the second trial the prosecution was seeking to prove (hat the occurrence took place. Thus in effect -what was held in that decision was that this fact in issue regarding the occurrence Which had become concluded between the parties in the first trial, cannot be reopened in the second trial on the principle of res judicata. There was no point in holding the second trial when, the Occurrence out of which both the trials arose was itself disbelieved in the first trial and hence the proceedings at the later trial were quashed in that case.
Mr. Ray J. referred to Section 26 of the General Clauses Act, 1897 and stated that the bar of autre fois acquit Under Section 403 Cr, P, C, was not confined to cases falling within Sections 236 and 237 Cr.PC and that the principle, of res judicata was applicable in the administration of Criminal law also. Thus, really speaking though the learned Judge held that Section 403 will be a bar to the second trial, what he was really enunciating was 'hat the principle of res judicata has to be extended to Criminal trials also and was not confined to Civil as under S- U C. P. C. and that a fact in issue decided in favour of the accused at the first, trial should not be reopened at the second trial
18. Thus, if in the first trial, the accused was convicted; and the fact in issue decided in favour of the prosecution, a second trial will not be bar, because, the prosecution will cot be seeking the prove again something, which was held against & at the first trial and hence no question of res judicata will arise. Section; 403 (1), Cri. P- C does not take any distinction with regard to a second trial between conviction and acquittal of the accused in the first trial.; Thus, the bar in a case of an acquittal in-the first trial does not arise Under Section 403 fr. P..C. at all and it is not against the trial itself as against allowing evidence to be Jet in, in respect of matters in issue which have become concluded between the parties in the first trial take this as the view, expressed by Mr. Ray j. in the Patna case.
19. The view taken by Mr. Ray J. in the Patna case has been vindicated in the later Privy Council decision Sajnbasivajn v. Public Prosecutor, Federation of Malaya 54 Cal WN 695 (PC). In that case, the Privy Council held as follows:
Tile effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful; trial is not only that the person acquitted cannot be had again for the same offence but that the verdict is binding and con-elusive in all subsequent proceedings between the parties to the adjudication.
The maxim, 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings and accordingly, the prosecution in the above case was bound to accept the correct-Bess of that verdict and was precluded from taking any step to challenge it at the retrial on the first charge and the accused was equally entitled to rely on his acquittal, in his defence at the re-trial, since the facts proved in support of the charge were clearly relevant to the other.
20. This P. C. decision was quoted with approval in the Supreme Court ruling A.I.R. 1956 SC 413 In that case, the accused was tried at the first trial on a charge Under Section 19(f) of the Arms Act, regarding the possession of an unlicensed revolver, and he was acquitted in appeal, though sentenced in 'The trial Court, In the second trial at the accused for murder arising out of the same occurrence, the prosecution sought to prove that tie revolver was recovered from the possession of the accused and evidence wag let in for the purpose at the Sessions trial. The Sessions Judge admitted the evidence and relied on it in finding the accused guilty of the charge of murder. But the Punjab High Court held that the said evidence has to he excluded in view, of the prior acquittal of the accused by a competent Court of the charge Under Section 19(f) of the Arms Act.
The Supreme Court agreed with the Punjab High Court and quoted with approval, the observations of Lord MacPermott in the Privy Council ease and held that the High Court was right in excluding the evidence regarding the recovery of (the revolver. Their Lordships stated that the possession of the revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence Under Section 19(f) of the Arms Act and 'that the acquittal on that charge in the first trial was tantamount it a finding that the prosecution had failed to establish the possession of the revolver and hence , the said fact cannot be proved in any further proceedings between the same parties.
21. Thus, in our present case, the presence of Bira Singh f the scene of occurrence was a fact in issue in the first trial as the prosecution had alleged his presence and violation of the order Under Section 144 Cr.PC while Bira Singh had denied his presence and the Court accepted the defence and acquitted him holding that the prosecution had not proved his presence. That finding became' conclusive between the parties and in the second trial, the prosecution cannot reagitate the matter. The very same Sessions Judge who acquitted Bira Singh in the first trial allowed evidence to be let in at the second trial to prove the presence of Bira Singh and relied on that evidence to give a finding, which was just the opposite of his own finding in the first case. In the lace of the S. C. decision, the Sessions Judge should not have allowed the evidence to be let in as the matter had become concluded at the first trial. The entire evidence let in at the second trial to prove die presence of Bira Singh at the scene of occurrence has to be excluded. If that evidence is excluded, there is no case at all against Bira Singh, regarding any of the charges and he has got to be acquitted-
22. It was strenuously argued by the respondent's counsel that the observations of the Supreme Court in Eritam Singh's case : 1956CriLJ805 were obiter dicta and were not necessary for the decision in that particular case, as the conviction of the accused in the said case for murder was confirmed even after excluding the evidence relating o the recovery of the revolver. But the counsel for the State had urged before the Supreme Court for the inclusion of that evidence in support of his arguments and the Supreme Court had to decide whether She said evidence which was excluded by the High Court had to be taken into consideration. Thus, it cannot be said that the observations were mere obiter dicta. Even if the observations were obiter dicta, this Court has to follow those observations of the highest Court of the land on this important question of law. I have also shown in my earlier discussion that I am in entire agreement with the principle laid down therein.
23. Next it was urged for the respondent that in the first trial (here was n0 conclusive Finding that Bira Singh was not present and that the Sessions Judge had only stated in his judgment that the delay in filing the complaint and the failure to arrest Bira Singh at the time of incident threw considerable doubt on his presence among the agitators, that this Court only accepted the said finding of 'he Sessions Judge, that it did not amount to a finding that Bira Singh was not present, but only that the prosecu- tion had not established his presence on the evidence adduced in that case and that it will not therefore prevent the prosecution from proving his presence conclusively at the second trial-
My attention was drawn to 'he F.I.R. Ext, A-3. in which Shyamkishore Singh (P.W. X) had mentioned the name Bira Singh on the very day of occurrence. It was also pointed out that Bira Singh was arrested as early as 7-5-1980. I1 was argued that the first trial was unfortunately not conducted properly, that if the F, 1. R. Ext. A-3 had teen produced ;n -hat case, there would pot have been any comment about the delay in implicate of Bira Singh in ;he case and the case would have ended in conviction and that therefore the prosecution was rightly given the chance by the Sessions Judge in the second trial to prove the presence of Bira Singh.
24. I cannot accept these arguments. A perusal of the records in the present case shows that the entire investigation was completed by P.W. 40 on 1-5-1960. The evidence of P W. 40 showed that all that lie did after 1-5-1980 was to examine the A. S. I- P.W. 13 on 15-7-1960 and t0 get the injury reports of the Police personnel from the doctors on 16-5-1960. Both these could have been done even by 1-5-1960 : ''he photographs were taken by P. ,W. 13 even on 25-4-.1960 and as the injury reports were also ready by 26-4-1960. Thus, it would appear that 'he filing of. the charge sheet was deliberately delayed till 1S-7-1960, until after the trial and conviction o Bira Singh by the Magistrate in the first trial was over on 8-7-19dO. Actually, Under Section 235(1) Cr.PC a separate trial against: Bira Singh on the charge Under Section 188 I. P. C was quite unnecessary and there could have been a joint trial.
What the authorities did 'was to deliberately delay the filing of the charge-sheet in the present case, even though the investigation to all intents and purposes was completed even by .1-5-1960: and to file a separate complaint Under Section 188 against Bira Singh alone on 12-5-1960 and to wait until his conviction was obtained before the Magistrate on 8-7-1960 before filing the chargesheet in the present case. It is clear that the prosecution wanted to get him convicted Under Section 188 in a separate trial before they filed the charge-sheet in the present case. Thus they deliberately wanted a second trial against him as permitted Under Section 403(2), CrIPC In that case, they will have to take the consequences of such action and the second trial will be liable to all the infirmities under the law. They cannot he allowed to plead that the first trial was conducted in a haphazard fashion and that they should be allowed t0 conduct the second trial properly.
25. It follows therefore that Bira Singh's presence at the scene of occurrence having been already disproved in the first trial, all evidence relating to the same matter at the second trial has, to be excluded. On such exclusion, there is no' evidence at all against Bira Singh. His conviction and the sentences passed against him have to be set aside and he has to be acquitted of all the charges brought against him. 1962 (2) Cri.
26. Now I shall deal with the case against the 3rd appellant Cbingsubam Ibotombi Singh. The case has been dealt with in detail by the Sessions Judge. There was Overwhelming evidence as to the occurrence which took place on 25-4-1960 between 2-00 and 5-00 p. m. There Was evidence about the unlawful . assembly about rioting and about the consequences which followed from such unlawful assembly, and rioting, namely, the injury to the Police personnel due to the -hurling or stones by members of the unlawful assembly, the damage done by the said hurling of stones to the Inter State Police Wireless Station, & the wrongful restraint of public servants and others inside the said Wireless Station and also inside 'he Manipur State Transport and the B. O. C. All this evidence-cannot be brushed aside.
27. As for the participation of the appellant Gh. Ibotombi Singh in' the said unlawful assembly. P.W.s. 5, 63 7, 8 and 22 were examined. The learned Sessions Judge has discussed their evidence and held that the evidence of P.Ws. 5, 6 and 8 is naming Ch, Ibotombi Singh cannot be relied upon, I have perused their evidence and I agree with the Sessions Judge that those witnesses who-did not know Ibotombi Singh before that date were stretching their memories in naming him as lone among the 2000 to 10,000 persons gathered at the place and in stating that they saw him hurling s' ones. It was necessary to have held a test identification parade as far as these witnesses-were concerned to see if they could identify him-But P.Ws. 7 and 22 gave evidence that they knew Ibotombi Singh previously and that they were able to identify him in the crowd and that they saw him hurling stones along with other agitators at the Police and at the Inter State Police Wireless Station. The Sessions Judge believed their evidence. I also see no reason to disbelieve the said evidence.
28. What was argued by the learned Counsel was that P.Ws. 7 and 22 were Police witnesses, and that because the appellant happened to be injured in the Police firing and was removed to the hospital, these Police witnesses who were interested in supporting the action of the Police in firing at the crowd were seeking to implicate him falsely. It is, of course, interesting to note that besides the 6 persons who were injured in the police firing and who were in hospital, the only other person in the whole crowd of 2,000 to 10,000 people against whom the present case has been brought is Bira Singh. The name of one Binodini Devi was mentioned by P.W. 4 as leading a batch of the agitators. Even this Binodini Devi has not been charged in the present ease. It would therefore look as if this case was an attempt 'to justify the Police firing and for the said purpose those injured in the police firing were made the main accused in the case.
29. I have therefore read the evidence of P.Ws. 7 and 22 which was relied upon by the Sessions Judge very carefully and I am quite satisfied that they were speaking the truth. According t0 P, W. 7, he saw Ibotombi Singh in the crowd at 2-40 p. m. for the first time and he was hurling stones and he saw him again for the last time just before the second tiring at the M. S. T. Gate at 4-40 p, m. He knew Ibotombi Singh before, According to V- W. 22, he had seen Ibotombi Singh previously at a football match at the Police ground and had talked to him then and also used to see him in the market afterwards and so he was able to recognise him in the 'crowd. P.W. 22 said that he saw this appellant pelting stones. It is thus clear that this appellant's defence that he was only a spectator and did not take any .part in the day's incident is not true. It has been clearly established that he was also a member of the unlawful assembly and that he was pelting stones- The particular part played by him has been proved.
30. It was vehemently argued for the defence that the common object of the assembly has not been proved in this case, The common object is mentioned in the first charge as violation of the order promulgated by the District Magistrate Under Section 144, causing wrongful restraint and hurt t0 the public servants on duty, causing damage to the public .property, obstructing the pedestrians and vehicular traffic and attempting to kill public servants on duty. The learned Sessions Judge hag held all the common objects to have been proved except the one of attempting lo kill public servants on duty. In my opinion also, the common object has been clearly proved in this case. it was announced by P.W. 12, the Magistrate to the persons who had assembled, that 3n order Under Section 144 was passed and that they should disperse as their assembly was in Violation of the order, This was disregarded by the crowd including the appellant Ibotombi Singh, who was noticed in the crowd even as early as 2-40 p. m. by P, W. 7-
Thus, it is clear 'hat the very gathering was in violation of the order. The fact that the crowd felted stones on the Police and on the Inter State Police Wireless Station again showed their common object to cause injury and rioting and mischief. In fact, in the definition Under Section 141 IPC the first, third, fourth and fifth objects have been clearly proved in this case by the evidence of innumerable witnesses. It. is not possible for the prosecution to prove what was in the minds of the persons assembled. That can only be inferred by the subsequent conduct of the assembly-It is not necessary to prove that there was a previous concert regarding the common object. It may even be the when the crowd originally assembled there may not have been any such common object. The common object can be even after the original assembly was formed. In this case when the Magistrate asked them to disperse and they refused and continued to be there and began to ,pelt stones and create obstruction and cause mischief, U is clear that the assembly had the common object mentioned in Section 141, first, (third, fourth and fifth. I am not therefore prepared to agree with the learned Counsel for the appellant that the common object his not been proved-
31. Coming now to the offences committed in prosecution of the common object, it clear that simple hurt Under Section 323 mischief Under Section 440 and rioting Under Section 147 IPC have been clearly proved- In fact, there was hardly any argument as to whether the said offences Were committed by the assembly. As to this appellant's part in it, it has to be held that when he as a member of the unlawful assembly himself hurled stones, he is guilty of rioting. Again, even though there was no proof that the stones thrown by him caused the hurt and the mischief, he will be guilty when Section 149 is brought in, as he must be held to have known that the offences which were committed by the members of the unlawful assembly were likely to be committed in prosecution of the common object. 9
32. The only other serious argument was in respect of the offence Under Section 333, read with Section 149 namely, causing grievous hurt to a public Servant engaged in duty, in regard to which the highest sentence of 4 years' R. I, has been given by the Sessions Judge. The only public servant who was said to have been grievously injured was P, W. 9. The injuries sustained by him were:
(1) Two lacerated wounds
(a) upper lip cut injury 3/4' x 1/3' x .1/4' (cut)
(b) lower Up cut injury 1/4' x 1/6' x 1/4'' (cut) and
2. Four front teeth were loose ('he upper two incisor teeth and also lower two incisor teeth).
In the injury report Ext. A/22 the doctor P. y/. 35 S.S. Sarkar has mentioned the two injuries as, Severe, but not as grievous, But In his evidence, F. W. 35 mentioned both the injuries as grievous He said that they were caused by some blunt weapon, but in the injury report he only said .that they were probably caused by a stone. Thus P.W. 35 has attempted in his evidence t0 improve upon what he stated in the injury report given shortly after the occurrence, P.W. 9 who received the injuries stated in his evidence that for about 15 days he was in hospital and that he resumed normal duties after 20 days-
The evidence of P. W, 35 was not conclusive on the matter particularly, as it differed from what he had stated in the injury report Ext. A/22. He ought to have been asked by the Court why he was calling the injuries grievous in his evidence when he had not stated so in the injury report, as It was for the Court to decide whether the injuries were really grievous within the meaning of Section 320 IPC I do not find any discussion in the Sessions Judge's judgment on this question. That to indeed a pity as he has given a stiff sentence bf 4 years to all the appellants on this charge. It was his duty therefore to have discussed the question and come to a definite conclusion as to whether the injuries on P.W. 9 were really grievous.
33. Out of the two injuries, the first injury Will not come within any one of the 8 definitions under S- 320. The second injury simply states that four teeth were loose. What had to be proved Under Section 320 was that the teeth were: originally no'; loose and that they became dislocated as a result of the injury. No attempt was made to prove 'his by the prosecution. The mere state' that 'the four teeth were loose' is not sufficient to make it an injury even and much less to make it ii grievous injury within the meaning of S. 320, seventhly. It has to be proved that there was fracture or dislocation by the injury. No fracture was proved. Mere looseness will not amount t0 dislocation of the teeth. The dictionary meaning of ''dislocation'' is displacement or putting out of joint or derangement. None of these things were proved. Thus, the opinion of the Doctor P. ,W. 35 on the witness box that the injuries were grievous was of no use at all and proved nothing.
34. We are thus left with the evidence of P.W. 9 to the effect that he was in the hospital for 15 days find that he resumed normal duties after 20 days. This is also not sufficient (o make I the injury grievous. Under Section 320, eighthly, any hurt which causes the sufferer to be during the space of 20 days unable t0 follow his ordinary pursuits, will be grievous, p, .W. 9 did not say that he was unable to follow his ordinary pursuits 'during the space of 20 days. He was in hospital only for 15 days. That is not enough. It did not follow that he was so ill in hospital to be unable to do his normal duties. The doctor who attended on him did not say so. even the evidence of P.W. 9 that he resumed his duties as a Police Officer only after 20 days is not enough. This fact was not also proved by records which must be in the Police Officer. P.W. 9 did not say that he was unable' to resume duties during the period of 20 days. Thus, within the meaning of Section 320 I. P. Q, the injuries received by P.W. 9 cannot he as grievous injuries. We are dealing with a serious charge, Before the accused could be held guilty of it, the prosecution has the duty of proving grievous hurt beyond a shadow of doubt. That has not been done in this case. Thus, the charge Under Section 333 J. P. C. has to be held as not proved.
35. The appellant can be held guilty only under the lesser charge of causing simple hurt to a public servant Under Section 332 IPC read with Section 149 IPC The conviction of Ch. Ibotombi Singh Under Section 333 J. P. C. read with Section 149 '}. P- C. is, therefore, set aside and he is convicted Under Section 332 I. P. C- read with Section 149 I, P- C.
36. The convictions of the appellant Ch. Ibotombi Singh Under Section 147 IPC and Section 440 I-P. C. read with Section 149, IPC are c0r.fi:med. With regard 'o the conviction Under Section 323 IPC read with Section 149 I- P. C J, have already pointed Out that the charge really Section 1. could have been Under Section 332 I. P- C. read with Section ,149 I. P. ,C. As I and now convicting Ch. Ibotombi Singh Under Section 332 IPC read with Section 149 IPC a further conviction Under Section 323 IPC read with Section 149, IPC becomes quite unnecessary. The said conviction and the. corresponding sentences passed by the Sessions Judge Under Section 323 read with Section 149 IPC are therefore set aside.
37. Now I come to the question of sentence. The learned Sessions Judge has given no reasons for awarding the particular sentences he has given- We have to remember that his is not an ordinary case where the appellant Ibotombi Singh has himself committed the offences. He is sought to be made guilty as a member of the unlawful assembly for the offences committed by 'he unlawful assembly. Section 146 IPC malas every member of an unlawful assembly which uses force or violence in prosecution of the common object guilty of the offence of rioting. Section ;149 again makes every member of the unlawful assembly guilty of an offence committed by any member thereof.
It is under these statutory provisions which fasten what I may call a kind of vicarious liability that the appellant Ibotombi Singh is sought to be made guilty. None of the witnesses stated tha1 they were hurt or that. mischief was caused by the stones hurled By Ibotombi Singh. Thus for what other persons in the unlawful assembly did, Ibotombi Singh, by virtue of Sections 146 and 149 is sought to be made statutorily guilty. Though therefore he conviction of Ibotombi Singh under the various Sections cannot be questioned it must make a difference in the severity of the sentence to be passed on him. The severity of the sentences I In such cases cannot be on the same level as in I 'he case of persons who were directly responsible for the actual offences-
38. In fixing the punishment for any particular crime, the .Court will have to take into consideration the nature of the offence, the circumstances in .which it was committed, the degree of deliberation shown by the offender, the provocation which he has received, if the crime was one of violence, {he antecedents of the prisoner upto the time of sentence, his age and character. This is stated in Halsimry's Laws of England, Second Edition, page 256. I would only add one more to what is mentioned in Halsbury's Laws of England, which will be relevant to this particular case. It is that the injuries suffered by the convicted person in the course of that very occurrence and as a result of it have also to be taken and account in mitigation of the sentence. We cannot shut our eyes to the fact '.hat Ibotombi Singh, himself received severe bullet injuries as a result of that day's Police firing and that he had to remain in the hospital for 10 to 12 days.
39. In this connection J may refer to the decision State v. Kangan Sufoa Gujjar , In that case, the accused was convicted of the offence Under Section 325 IPC and ,the Magistrate taking into consideration 'he bearing received by the accused subsequent to the offence at the hands of the relatives of the Injured and sentenced him only 'o pay a fine. .Reference was made to the High Court by the Sessions Judge stating that it was obligatory on the Magistrate to sentence the accused to a term. of imprisonment under See, 325. But the High Court stated that as substantial punishment was given to the accused by the beating received from the relatives of the injured, it was not necessary award imprisonment in the circumstances of the case and the reference was rejected.
40. For the above reasons, .1 consider that the sentences imposed by the Sessions: Judge on the-appellant .Ch. Ibotombi Singh, are rather severe; and the sentences have to be reduced as shown hereunder.
41. In the result therefore the appeal of the first appellant Thokchom Bira Singh is accepted and his convictions and %e sentences passed on him are set aside and he is acquitted and directed to be set at liberty forthwith unless wanted in connection with some other case.
42. The conviction of the 3rd appellant Chingsubam Ibotombi Singh and the sentence of 1 year's R. I- Under Section 323 I. P, C. read with Section 149 IPC are set aside. The convictions Under Section 147 J. P, C- and Under Section 440 IPC read with Section 149 I- P. C. are confirmed, The conviction Under Section 333 I. P- C. read with Section 149 IPC is reduced to a conviction Under Section 332 J. P. C. read with Section 149 I. P, C. The sentence Under Section 147 J, P. C- is reduced to 6 month's R, J. from 1 year's R. I. The sentence Under Section 440 I- P. C read with Section 149 I, P. C- is also reduced to 6 months' R. I. from 2 years' R. I. He is sentenced to 6 months' R. I. Under Section 332 I. P-C, read with sec-Ion 149 IPC All the sentences are to run concurrently. AH the other sentences passed by the Sessions Judge are hereby set aside.
43. The appeal of appellants 2 and 4 to 6 is dismissed as not pressed.