Radke, A.J.C.
1. This is an appeal against the conviction of the appellants under Section 21, Bhopal Public Safety Act, and Sections 147, 332 and 333, Penal Code read with Section 149 of the Code, by the Addl. Sessions Judge, Bhopal, sentencing them to various terms of imprisonment, all of which are to run concurrently. One Pannalal, who has also been similarly convicted and sentenced, has filed a separate appeal No. 45 of 1951, and this judgment will decide his case also.
2. The facts of the prosecution story are that the District Magistrate, Bhopal, had banned the holding of meetings and taking out of processions under Section 15, Bhopal Public Safety Act, and yet in contravention of the order passed by the District Magistrate, the three accused, along with others, took out a procession on 21.12.1948, and were about to hold a meeting. While they were prevented from taking out the procession from the railway station to the city, they stopped at the level crossing. As they used force and did not listen to the order of the District Magistrate, force was used by the Police, specially as the processionists had assaulted the Police officials who were preventing them to pass. In the scuffle that followed, many Police officials were injured, one of them having received a grievous hurt. The processionists became an unlawful assembly and in prosecution of their common object of releasing their leader, Tiwari, they used force and caused injuries to the officials concerned.
3. Originally 36 accused were put up in the enquiry proceedings but only 27 of them were committed to the Court of Session, Six out of these 27 absconded and one died during the trial. Thus ultimately only 20 accused were before the Court of Session, out of which 17 were acquitted and only three of them were convicted as pointed out above.
4. All these three accused denied that they were in the procession or that they had used force and violence to the officials concerned in prosecution of the alleged common object. All of them pleaded alibi and two of them, namely, the appellants in this case, led defence evidence to prove that they were present elsewhere at the relevant time which made their presence at the scene of occurrence improbable. Pannalal led no evidence. The learned A.S.J. held that all these three accused had taken part in the procession contrary to the order of the District Magistrate and that they had committed rioting. He also held that they had committed offences under Sections 332 and 333, Penal Code, constructively, inasmuch as they had caused simple and grievous hurts to the police officials concerned. They were accordingly convicted and sentenced as stated above.
5. The first point that arises for consideration in this appeal is whether the three accused had participated in the procession which was taken out from the railway station and which proceeded towards the city and was stopped at the level crossing. There is abundant evidence on record that the processionists who numbered about a thousand consisted of mill hands who wanted to proceed to the city to hold a meeting in protest of the externment of their leader, Tiwari, They were stopped at the railway crossing by the Police which prevented them from proceeding towards the city to hold a meeting.
6. There was a large number of persons present in the procession and the question is whether these three accused, who denied their presence at the scene of occurrence were legally identified by the witnesses. Identification parades were held, at different times and many of the accused, including those acquitted, were identified by various witnesses. When the matter came to Court in the enquiry proceedings, the number of identified accused increased. In the trial, many more accused were identified. The learned A.S.J. acquitted 17 accused on the main ground that their identification did not satisfy the judicial scrutiny. In the case of these three accused, the Judge held that they were sufficiently identified by the witnesses. The principle which the learned A.S.J. enunciated that the identification should be beyond doubt was unfortunately misapplied in the case of the appellants before me. The witnesses who were disbelieved as identifiers of the acquitted accused were believed as identifiers of the appellants. No reason has been advanced why the testimony of the witnesses on whom the Judge relied was accepted so far as the present appellants are concerned, when their credibility was doubted against the rest.
7. There are certain principles which a Court has to bear in mind in deciding whether the identifying witnesses are worth relying upon or not. Among other things, what the Court of law has to see can be catalogued as follows:
(1) The number of wrong persons picked out by the identifying witnesses;
(2) Consistency of the identification made at different times;
(3) Sufficiency of number of men paraded; and
(4) Number of wrong identifications.
If the above four points are taken into account, the testimony of the witnesses who identified the present appellants cannot stand the scrutiny. The reason is that some of them had identified wrong persons, that there was no consistency of identification, and that it is not known whether sufficient number of persons were paraded. Apart from what is stated above, the other facts which weigh with the Judge in scrutinising the identifying evidence is whether the witnesses had known the accused and whether they were close enough to the accused about the time of the alleged occurrence and whether the accused had taken some prominent part which impressed the witnesses in the matter of identification. These are some of the points which must be taken into consideration in deciding whether the witnesses are worth belief or otherwise. In my opinion, when the learned A.S.J. discarded the testimony of most of these identifying witnesses on some of the grounds stated above, it does not stand to reason why the testimony of witnesses against these accused should be accepted.
8. Apart from what is stated above, there is one more reason for rejecting the testimony of the witnesses of identification. It is a rule of practice that when a case hinges on the testimony, of police officials alone, it should not be ordinarily accepted without a very careful scrutiny. In a proper case independent corroboration should be demanded and if the circumstances are such, that such corroboration would be coming forth, the bare testimony of the police officials should not be accepted as true. In the present case the testimony of independent witnesses was disbelieved and reliance was placed solely on the testimony of police officials alone for holding that the accused were properly identified. On principle I disagree with the learned A.S.J. and would like to point out to him that if a witness is disbelieved, the credit of his testimony suffers and he should not be ordinarily believed in other matters also, unless there are good grounds to do so. Secondly, when the decision on a particular point depends solely on the testimony of police officials, uncorroborated by independent evidence, greater caution and scrutiny is necessary.
9. It is a fundamental rule of criminal administration that a case against the accused should be proved beyond all reasonable doubt and if there is any rational doubt, it means that the case fails against the accused. Suspicion against the witness and his veracity leads to a doubt of the prosecution story and, therefore, it is dangerous to accept the story as true in such a case, Differing from the Judge trying the case, I hold that the evidence of identification does not stand the judicial scrutiny and that it is dangerous to rely on the meagre evidence that has been led to hold that the accused participated in the offences imputed against them. This is enough to dispose of this appeal but as there are other matters of fundamental importance argued before me, it is necessary that I should apply my mind to them and decide the points one way or the other.
10. The appellants nave been found guilty under Section 147, Penal Code by the A.S.J., who held that there was an unlawful assembly and that that assembly used force and violence. The application of Section 149, Penal Code, is freely made and on the strength of that section constructive liability for causing simple and grievous hurts to the police officials has been fastened on the appellants.
11. The charges which were framed against the accused show that the common object of the assembly was to release Tiwari, who was externed under the Public Safety Act, but at the stage of evidence, the real common object appears to have been lost sight of and it was stated that the processionists took out a procession in protest against the order of the Government and were about to hold a meeting in the city. Nothing is said about releasing Tiwari, even though it was initially stated that the processionists wanted to lie down on the rail road in order to prevent the train from moving forward with Tiwari. If that was the real common object of the assembly, the fact that they wanted to cross the railway line and go to the city disproved it. If the idea was to prevent the train from moving, the processionists would have stopped at the railway crossing but the police version is that they wanted to proceed further. The common object, therefore, has not been properly located. At one time one common object is stated and at other time other common object is stated. In fastening constructive liability, the importance of the common object is very great and it is on this basis alone that an accused is punished for the act of his associates. It is desirable therefore, to look to the ingredients of Section 149, Penal Code, somewhat closely.
12. An assembly of 5 or more persons is designated an unlawful assembly, if the common object of the persons composing that, assembly is to commit any of the acts enumerated in Section 141, Penal Code. Every member of such assembly is guilty of the offence committed in prosecution of the common object. This constructive liability is fastened on the accused who did not participate in the actual acts of violence, on the principle that the act of the one is the act of another when there is a common object present in furtherance of which the acts were done. Section 149 consists of two parts. The first part deals with an offence committed which is in the scheme of the assembly but the second part embraces such offences which were not in the original scheme and yet they are committed by some of the members of the assembly for which the others are liable. The only condition laid down in the section, is that the offence was such that the associates knew that they were likely to commit to achieve the end in view. Usually the distinction between part (1) and part (2) is lost sight of by the trial Courts with the result that the approach becomes defective leading to erroneous results.
13. There are two modes of proof of the guilt of an accused, one is by direct evidence and the other is by indirect evidence. By 'direct evidence', I mean the evidence of a person who has actually seen the person doing the act complained of By 'indirect evidence' I mean the evidence not against A but against B. In such a case A is made liable on account of the application of constructive liability. There is no doubt that the second mode of the proof should not always be resorted to but this is so done for the purpose of preventing the hazards and inconvenience in bringing home the offence to a particular accused by direct evidence. The ordinary mode of proof is that there should be evidence against the accused who is found guilty. Whenever recourse is had to Section 149, Penal Code, it means that the prosecution feels shy in leading direct evidence against the accused. In short that is the weakness of the prosecution.
14. It has to be borne in mind that the application of Section 149, Penal Code is an exception and every exception must be strictly construed. There are certain expressions in this section on the basis of which the constructive liability is established and it is worthwhile, therefore, to refer to those expressions somewhat closely.
15. The use of the expression 'Common object' In the first part and 'knew to be likely to be committed' in the second part need closer scrutiny. The phrase 'Common object' is the central fact on which the liability of a person other than the actual perpetrator depends. The word 'object' means the purpose or design and in order to make it 'Common' it must be shared by all. There should be community of object and this object may exist upto a particular stage and may be non-existent thereafter. This point also must be borne in mind in this connection.
16. The expression 'knew to be likely to be committed' imports at least an expectation founded upon facts known to the members of the assembly that an offence of a particular kind committed would be committed. It means something more than a mere speculation that such an offence might happen to be committed.
17. If Section 149, Penal Code applies it must apply with full power. But the cases whether members of an unlawful assembly deliberately agree on a common object to be attained at all costs must be distinguished from those where there was no concerted plan and on the spur of the moment the persons who were 'erst' quite peaceful are suddenly transformed into a riotous mob.
18. The term 'offence' is defined in Section 40, Penal Code in the following terms:
Except in the chapters and sections mentioned in Clauses 2 & 3 of this section, the word 'offence' denotes a thing made punishable by this Code.
The term 'offence' referred to in Section 149, Penal Code means the offence as defined in Section 40, Penal Code. It follows, therefore, that use cannot be made of Section 149, for the purpose of establishing the guilt of the accused constructively except in cases falling under the Penal Code.
19. In the first branch of Section 149 we should hare an offence committed by a member of an unlawful assembly engaged in prosecuting the common object and acting with the purpose of executing such object the commission of which offence executed or tended to execute a common object. In the second branch we should have an of fence committed by such member acting with such purpose the commission of which executed or tend to execute the common object, but which offence was such which was likely to the knowledge of the members of the assembly to be committed by a person so engaged acting with that purpose.
20. The test, therefore, whether an offence is committed in prosecution of the common object is whether the common object is prosecuted in fact as well as in the intention of the doer. When that is the case every person who is engaged in prosecuting the same object may well be guilty of an offence which fulfils or tends to fulfil the object which he himself, engaged in prosecuting the common object, had. No offence executes or tends to execute a common object unless the commission of that offence is involved in the common object.
21. When the offence is not committed in prosecution of that common object, the first part of Section 149, Penal Code does not apply. In that case what is required to be seen is whether the offence committed is such as the members of the assembly knew to be likely to be committed in furtherance of the common object. The expression imports the expectation founded upon facts known to all the members of the assembly that an offence of a particular kind would be committed. What is to be proved, therefore, is did the members knew that offence of the same kind with the offence committed was likely to be committed. The distinction, therefore, assumes considerable importance.
22. The members of an unlawful assembly may have a community of object upto a certain stage beyond which they may differ in their object and the knowledge possessed by each member of what is likely to be committed in prosecution of the common object will vary not only according to the information at his command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149, Indian Penal Code, may be different on different persons of the same unlawful assembly.
23. The facts of this case shall have to be scrutinized in the light of the observations made above. The original idea which the prosecution stated was to get Tiwari, the labour-leader released from custody and prevent him to be externed from Bhopal. It will have to be seen whether this initial idea was adhered to or whether it was abandoned and some other idea, inconsistent with the first was entertained and acted upon. Then again it will have to be seen whether the two ideas are consistent with each other. It will further have to be examined whether the evidence that has been brought is consistent with the charge that has been framed against the accused. If there is a search for the common object or if the common object is changed now and then, according to the conveniences of the prosecution, the prosecution case falls to the ground as it will be difficult, without causing some confusion, to switch on from one to the other common object. In any case, law will not permit it. The reason being that the application of the provisions of Section 149 of the Code is an exception to the general rule. Moreover the accused is prejudiced in such a case inasmuch as he does not know on what basis he has to meet the prosecution case. He finds it difficult to make out whether it is the first part or the second of Section 149 of the Code which has been requisitioned to fasten the criminal responsibility upon him. Ordinarily a Court of law is always loathe to permit free use of Section 149 of the Code on account of the grave responsibility and the technicality of the observance of the strict distinction between the two parts of that section.
24. A perusal of Section 141, Penal Code shows that an assembly of five or more persons is an unlawful assembly if the common object is to commit an offence. In this case it was pointed out that the common object of the persons composing the assembly was to release Tiwari from custody. The charge that has been framed against the accused also mentions this as a common object of the assembly but at the stage of evidence this common object is departed from and instead it was sought to be established that the common object was to take the procession to the city and to hold a meeting in protest against the conduct of the State Government in removing Tiwari out of Bhopal. This second common object is inconsistent with the original common object for which the accused were called upon to answer. The proper course for the prosecution was to say boldly that they wanted to change their front and that the common object originally pointed out was a mistake and that the real common object was what was sought to be established. But the prosecution did not take any step and adduced evidence ignoring the original common object. As already stated above, the two common objects are inconsistent with each other and the prosecution will not be permitted, therefore, to leave the one and catch the other. If the prosecution is permitted to do so, the accused are likely to be prejudiced. For the above said reasons I am not persuaded to hold that there was an unlawful assembly of the type complained of. This means, therefore, that it cannot be said that rioting was committed by such an assembly in furtherance of the common object. The very foundation falls to the ground on account of the mis-management of the investigation and bad handling of the case at the stage of the trial.
25. For the reasons set forth above, neither the first nor the second part of Section 149 of the Code can be resorted to as the common object is slippery and as already pointed out above, it cannot be changed at the pleasure of the prosecution.
26. It could have been said that the common Object could be changed. In that case the difficulty is whether at the spur of the moment there was an assembly, with the different common object, formed to commit an offence. When one-speaks of a common object of an assembly, it pre-supposes some sort of agreement on the basis of which action is taken. For this reason I am not inclined to accept such contention even, if advanced that the common object was altered and that a meeting was sought to be held in furtherance of this common object. To say that the second part of Section 149 applies would be unwise, as the two objects differ considerably and it will be difficult to say that in the second object the force that is said to have been used was consistent with the force which the previous common object necessitated.
27. In my opinion, the whole case has been very badly handled and the importance of Section 149 was lost sight of.
28. The offences which are said to have been1 committed on the application of Section 149, are that hurt both, simple and grievous, was caused to the Police officials who were on duty. There is no evidence on record to show that these three appellants caused these injuries to the officials concerned. It was only by the use of Section 149 of the Code that they were made liable but recourse cannot be had to that section for the reasons set forth above and it has not been shown that these accused caused these injuries. The responsibility for those offences cannot be, therefore, brought home to these appellants.
29. The learned Counsel for the appellants also put before me certain other defects which, according to him, must reflect on the prosecution case and which prejudiced the accused considerably in their defence. It was pointed out that even though a number of witnesses were examined in the case, the accused were denied the use of the statements recorded during investigation. It is pertinent to point out that Wali Mohammad Head-Constable (P.W. 11) had to admit that even though he was questioned by the Police during investigation his statement was not recorded. What is said by this witness also appears to be true in the case of other witnesses viz., Mohammad (P.W. 1), Abdul Suleman (P.w. 5), Abdul Hamid (P.W. 17), Abdul Kazir (P.W. 29), Mahesh Dayal (P.W. 9). It has been pointed out time out of number that in important criminal cases it is the duty of the Police to reduce to writing the statement of a witness separately as contemplated by Section 161(3), Criminal P.C. (amended). Failure to perform the duty enjoined by law constitutes a flagrant attempt to circumvent the law and thereby to defeat the right which the law bestows. Exclusion of such statement was repugnant to the fundamental rules of the criminal administration necessary for the due protection of the persons and safe administration of the criminal justice. The object of the law is to protect the accused both against over-jealous police officers and untruthful witnesses. The failure of the Court, therefore, to supply copies of the statements, to the defence counsel, whatever be the reason for it, cannot be countenanced. In the present case the reason is that no such statements were prepared by the Police. It, no doubt, means that the investigating officer took away from the Court a power to hold a fair trial. In fact a fraud was committed by the Police by the infringement of the duty.
30. Ordinarily the rule is that if the defence is not supplied with the copies of the statements of the witnesses examined by the Police, the testimony of those witnesses should be rejected in toto. Even if such a hard punishment is not imposed on the prosecution, it cannot be disputed that the valuable right of the accused to get the copies of the Police statements has been curtailed and that the accused are, therefore, deprived of the valuable right of putting the testimony of the witnesses to the touch-stone of cross-examination. One does not know to what extent prejudice is thereby caused to the accused. In such a case the testimony of witnesses should be received with great deal of caution. In this particular case the witnesses relied on are Police officers whose testimony the law always suspects. I have already pointed out above that I would never convict the accused with a peaceful mind on the testimony of Police witnesses alone. The defect pointed out above will also reflect to a considerable extent on the prosecution case.
31. The learned Counsel for the appellants has also drawn my attention to the manner in which the learned Additional Sessions Judge examined the accused before him. A bare perusal of the statement of the accused recorded would go to show that the learned Judge lost sight of the elementary principles on which the examination of the accused is based. The idea of the law is that the accused should be given an opportunity of explaining any incriminating material that goes against him in a criminal trial and this object can be achieved only if very incriminating material is brought to his notice in order to enable him to give an explanation. To put one complex and long sentence to an accused and to ask him to give a reply means that only lip-service is done to the section and that the real concept of the law is not valued at all.
32. The examination of the accused is one of the most difficult and delicate tasks of a Judge or a Magistrate and it is expected that that task should be carefully and properly performed but very few Judges and Magistrates are aware of the important provisions of Section 342, Criminal P.C. and they always commit mistakes in the manner of the examination of the accused and thus give a handle to the counsel appearing in higher Courts to criticise the mode of trial and to say that prejudice has been caused and that the trial is vitiated.
33. It is the duty of the prosecution to bring such evidence on record which would establish the case of the prosecution beyond all reasonable doubt and if the slightest doubt is entertained, it follows that the prosecution case is not proved, as required by law. In this case I find that there have been irregularities which have resulted in prejudicing the accused. They did not get a fair trial. In fact no case is made out against them and, therefore, I find it impossible to maintain the convictions against them.
34. In the result the appeal is accepted, the convictions and the sentences against the accused are set aside and they are acquitted. Their bail-bonds shall be cancelled.