Emperor Vs. Namdeo Margoo Kaikadi - Court Judgment

Lokur, J.

1. The seven appellants were tried along with nine others by the Sessions Judge of Sholapur with the aid of assessors for criminal conspiracy to do certain acts with intent to impair the efficiency or impede the working of factories, if necessary by use of bombs, for committing a riot, in pursuance of that conspiracy, in the ring-frame department of the mills of the Sholapur Spinning & Weaving Co., commonly known as Old Mills, some of them carrying bombs with them and for causing, in the course of the riot, injuries to several persons.

2. The assessors were of opinion that all the accused were not guilty and the learned' Judge accepted their opinion as regards accused Nos. 7 to 12 and 14, 15 and 16 and acquitted them, but disagreeing with them he convicted the seven appellants of various offences and passed different sentences on them.

3. The prosecution relied upon incidents which took place on three different days. On September 24, 1942, there was a meeting in Sathe's Chawl and again another meeting at Chouda Kaman on September 26 and the conspiracy is said to have been hatched at these meetings. Thereafter in pursuance of that Conspiracy rioting is said to have taken place in the Old Mills on September 27, 1942. The learned Sessions Judge has, after discussing the evidence, come to the conclusion that the holding of the meeting in Sathe's Chawl on September 24, 1942, is not relevant, and as those who were present at that meeting are being separately prosecuted, he declined to express any opinion as to whether any conspiracy was hatched at that meeting. As regards the meeting which is said to have been held at Chouda Kaman on September 26, 1942, it is not alleged that the appellants took part in that meeting. Hence all the evidence adduced on behalf of the prosecution regarding the meetings in Sathe's Chawl and at the Chouda Kaman is irrelevant so far as the appellants are concerned.

4. Similarly the learned Judge has disbelieved the evidence of Pandurang Shelke, who is really an accomplice and was examined to prove the details of the conspiracy and the steps taken by the conspirators to carry out their plans. He says in effect that he was entrusted with the work of distributing congress bulletins, that he agreed to do so on payment of wages, and that he received the wages but destroyed the bulletins instead of distributing them. He also describes how the conspirators collected several men and thought of creating a disturbance and attempting to stop the working of mills as it had been done in other places. He also describes in detail the meetings at Sathe's Chawl and at the Chouda Kaman and how the different accused persons joined the other conspirator He says that accused No. 9, who has been acquitted, carried with him a bag containing six bombs and showed them to the conspirators. That bag is said to have been subsequently given to accused No. 6 on the day of the riot. He then describes how the accused went to the Old Mills and how the riot was started. Thus, if he is believed, all the accused were involved both in the criminal conspiracy and in the riot which took place on September 27. But the learned Judge has very rightly described Pandurang Shelke as being not only an accomplice but on his own showing a liar and a cheat. In another place in his judgment he says that Pandurang Shelke is a worthless witness and a disreputable character and that the evidence of such a witness is totally worthless. He has, therefore, come to the conclusion that there is no evidence of any complicity of the accused in any conspiracy before September 27. We are, therefore, concerned in this appeal only with the incidents which took place on the morning of September 27.

5. On that day at about 8 or 8-30 a.m. several persons including the accused entered the mills. Witness Maruti, who was in charge of the motor which was being worked for driving some of the machines in the ring frame department, says that he saw eight) or nine persons coming up the fire-escape and that accused Nos. 6, 7 and 8 went to him and asked him to stop the motor as one of the belts had got entangled in the shafting in that department. Believing their story, Maruti turned off the motor. Thereafter those three accused and their companions rushed into the ring frame department throwing stones and bobbins, shouting ' Gandhijiki Jai' and calling upon the workers to go on strike. One of the stones hit the witness Subrao and caused him an injury. Those who were working in the ring frame department, including jobber Sayyad Hussen, Subrao and Shidram chased the rioters and succeeded in arresting five of them, viz. accused Nos. 1 to 5. Sayyad Hussen then sent the five accused to the office of the Spinning Master Rajkotwalla on the ground floor and proceeded to pursue the other rioters. He then happened to see accused No. 6 running downstairs and entering the carding department with a bag in his hand. Accused No. 6, on entering the carding department, stopped near a window, on the sill of which witness Huchappa, who was working in that department, had kept his tiffin box. It is alleged that accused No. 6 placed a bomb by the side of the box and left by a different door. Sayyad Hussen who had seen accused No. 6 entering in that department suspected that he would get out by the other door and so kept a watch on him. As soon as accused No. 6 came out, he caught hold of him and took him to the Spinning Master's office. The Police Sub-Inspector who had been informed of the riot arrived there. Accused Nos. 1 to 6 who had been taken into the Spinning Master's room were brought out and made to stand outside the door. When they were inside the room, it appears that accused No. 1, who had a bomb in his possession, managed to conceal it under a pile of sample cotton on a marble table standing near one of the walls. As soon as the Sub-Inspector arrived, he recorded the complaint of the jobber Sayyad Hussen and proceeded to the scene of the riot to make a panchnama. He found that bobbins and stones lay scattered there and drew up a panchnama about them. In the meantime Huchappa, who was working in the carding department, went to the window where he had kept his tiffin box and found the bomb. He did not know that it was a bomb and innocently picked it up and asked another worker Sakharam what that ball was. Sakharam also could not tell him what it was and Huchappa carelessly threw it away. As soon as it fell on the ground it exploded, causing him injuries, breaking the window and damaging one of the machines, The jobber Jainoddin was present there and he took Huchappa to the mill dispensary. At the time of the explosion the Police Sub-Inspector and the Deputy Superintendent of Police Mr. Bayliss, who had arrived by that time, were in the ring department engaged in drawing up a panchnama. On hearing the explosion they rushed to the ground floor and Jainoddin told them what had happened and his statement was immediately recorded. Maruti identified accused No. 6 as one of the three men who had asked him to stop the motor. The six accused who had been arrested were then taken to the Police Club. There accused No. 1 told the Sub-Inspector and the Deputy Superintendent of Police that he had kept a bomb in the Spinning Master's office and offered to point it out. He was taken to the mills in the evening and in the presence of the police and panchas he pointed out the pile of cotton on the table, under which he had concealed a bomb. Mr. Bayliss cautiously made a search and found the bomb there. A panchnama was drawn up and the bomb was removed to safety. On the next day accused No. 4 stated that he knew the place where accused No. 9 had concealed some bombs. He took the police and panchas to a field near the railway bridge at Chouda Kaman and pointed out a freshly dug hole under a tree. Three bombs were found there and were taken charge of by the Deputy Superintendent of Police. Thereafter accused No. 6 offered to point out a place near Sathe's Chawl where the conspirators had partaken of some eatables. The police and the panchas accompanied him and at the place pointed out by him several pieces of greasy paper, which had apparently contained sweetmeats, were found lying about. A panchnama was drawn up. Some more accused persons were arrested thereafter, and on October 19, 1942, accused No. 13, who was absconding till then, was traced and arrested. He told the police and panchas that he had placed a bomb in the C Mill in the compound of the Old Mills on the day of the riot and took them to the terrace of that mill. There he pointed out a gunny bag lying in a corner from which a bomb was recovered by the Deputy Superintendent of Police in the presence of panchas. On the next day an identification parade was held at which Sayyad Hussen and Subrao picked out accused No. 13 as being one of the rioters. Investigation went on and the remaining accused were arrested as they were found. The bombs which had been recovered were sent to the Assistant Inspector of Explosives and he found that they were charged with red sulphide of arsenic and potassium chlorate and contained gramophone needles, glass pieces, etc. In his opinion they were capable of endangering human life and causing serious damage to property. After the completion of the investigation sixteen accused persons were sent up for trial and the seven appellants stand convicted of various offences. All the appellants are convicted under Rule 35(i) (d) of the Defence of India Rules of rioting and of causing simple hurt. Accused Nos. 1, 4, 6 and 13 are convicted also under Section 4(a) of the Explosive Substances Act and accused Nos. 1, 6 and 13 under Section 4(b) of that Act. Accused No. 6 is further convicted under Sections 324 and 435 of the Indian Penal Code since Huchappa was injured by the bomb which he had placed near his tiffin box.

6. All the accused pleaded not guilty and denied having had any connection with the conspiracy, rioting or possession and use of bombs.

7. There is no reliable direct evidence about any criminal conspiracy among the appellants. The evidence of Pandurang Shelke who gave a detailed account of the conspiracy is not corroborated and he has been disbelieved. The learned Sessions Judge has definitely come to the conclusion that there is no evidence against any of the appellants to show their complicity in any conspiracy before September 27. Yet on the first issue framed by him as to whether the accused conspired together in September, 1942, to do illegal acts, to wit, to impair the efficiency, impede the working of, and to cause damage to certain factories, to wit, the mills in Sholapur, he has recorded, a finding in the affirmative. That finding is evidently based on the inference drawn from the incidents which took place on September 27, and we think that on the evidence such an inference is justifiable. There is sufficient evidence against each of the seven appellants, to prove that they were present among the rioters in the ring frame department in the Old Mills on the morning of September 27, 1942, when the riot took place.

8. There is no doubt that accused Nos. 1 to 5 were among the rioters and were apprehended when they were throwing stones and bobbins at the workers, shouting Gandhijiki Jai and calling upon the workers to go on strike. This is proved by the evidence of jobber Sayyad Hussen, Subrao and Shidram. Sayyad Hussen says that at about 8-30 or 8-40 a.m. twelve or thirteen people came into the ring frame department through the window just below Maruti's motor and started throwing bamboo bobbins and stones at the workers, shouting slogans and asking the workers to strike and stop the mills. He says that they created a disturbance generally and with the help of four or five workers he managed to catch hold of five of the rioters, accused Nos. 1 to 5. Among those who helped him were Subrao, Mahamad, Shidram, Sukhur and Kasim. Subrao and Shidram, who have been examined, fully corroborate him. He swears that he saw accused No. 6 entering the door of the carding department and thought that he would come out by the other door and so he waited. Accused No. 6 was then carrying a bag (article No. 11). Huchappa, who was working in the carding department, saw accused No. 6 enter the room and go to the window where he had placed his tiffin box. Accused No. 6 thereafter went out by another door and was caught by Sayyad Hussen. Huchappa further says that he then went to get some pan from his box and saw an iron sphere, like a cricket ball. He showed it to Sakharam who was working there, and as Sakharam too could not tell him what it was, he threw it down and it exploded and caused him several injuries. He screamed out and jobber Jainoddin ran to his help. His story is borne out by the evidence of Sakharam and Jainoddin in all its details. He was immediately sent to the Mill dispensary and subsequently removed to the Government hospital. The certificates issued by the two medical officers show that he had several injuries all over the body caused by the explosion.

9. Maruti states that at about 9 a.m. that morning three men went to him when he was working the motor in the mill and asked him to stop the motor on a false representation that the belt had got entangled in the shafting. Out of those three he identified, accused No. 6 and subsequently, when he went to the Spinning Master's office and found accused Nog. 1 to 6 detained there, he immediately pointed out that it was accused No. 6 who had asked him to stop the motor. His evidence is borne out by Subrao. Thus, although accused No. 6 was not one of the first five who were chased and arrested in the ring frame department, yet he was among the first three who went to stop the motor, was noticed going into the carding department when the rioters were pursued and was arrested as soon as he issued out of that department. He had ample opportunities to place a bomb on or near Huchappa's tiffin box. No one else had gone there and the bomb was found shortly after accused No. 6 left that department.

10. As against accused No. 1 there is the additional evidence of his stating to the police the same evening that he had placed a bomb in Rajkotwalla's office, taking the police and the panchas there and pointing out the pile of cotton on the table under which a bomb was found concealed. This is proved by the evidence of the panch, the Police Sub-Inspector and the Deputy Superintendent of Police Mr. Bayliss. The statement made by accused No. 1 which led to the discovery of the bomb was not incorporated in the panchnama by reason of a certain circular said to have been issued by the District Superintendent of Police. But what he said is deposed to by both the Police Sub-Inspector and the panch. According to the Sub-Inspector accused No. 1 said in the presence of panchas that he would show them where he had put a bomb in Rajkotwalla's office. According to the panch Mahadeo (exhibit 60) he said :-

I put a bomb in Rajkotwalla's office ; I will show it to you.

11. Mr. Shah for the appellants contends that only the last sentence, ' I will show it to you ' is admissible in evidence under Section 27 of the Indian Evidence Act and not the preceding sentence, ' I put the bomb in Rajkotwalla's office,' since it is a confessional statement made by the accused when in the custody of the police. Section 27 of the Indian Evidence Act provides :-

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

12. This clearly makes even an incriminating statement made by an accused person in the custody of a police-officer admissible provided (1) it has led to the discovery of a fact, that is to say a fact relevant to the inquiry, and (2) it distinctly relates to the fact thereby discovered. (Here the fact discovered is not merely the presence of the bomb in Rajkotwalla's office, but the fact that accused No. 1 had placed it there, and that statement distinctly relates to the discovery made by the statement of the accused. If such a statement is to be excluded merely because it is incriminating, Section 27 would be superfluous. It lays down an exception to the rule that a confession made by an accused person whilst he is in police custody must be excluded from evidence and permits the admission of such a confession where it leads to the discovery of a relevant fact and is distinctly related to the fact discovered.

13. Mr. Shah relies upon the decisions of this Court in Emperor v. Ganu Chandra (1931) 34 Bom. L.R. 303 and Emperor v. Bhikha Gober : (1943)45BOMLR884 . In the former case Beaumont C.J. observed :-

Where the accused gives information to the police in a form which divides such information into several parts, the part admissible under Section 27 can be easily separated. But, where the accused gives his information in the form of a compound statement, the Judge must, before he records it as evidence or leaves it to the jury, divide the sentence into what are really its component parts and only admit that part which has led to the discovery of the particular fact.

14. This is exactly what Section 27 lays down. It would indeed be unreasonable to suggest that a statement which would be inadmissible under Section 27, if it were placed in a separate sentence, would be admissible if it were amalgamated with some other admissible statement. The protection given by Sections 24 to 26 of the Indian Evidence Act should not be dependent on the ingenuity of a police-officer or the folly of the prisoner in composing the sentence which conveys the information leading to the discovery. But at the same time the statement should not be so garbled as to make it altogether innocuous to the prisoner and remove it entirely from the nature of an incriminating statement. In Ganu Chandra's case, where the accused stated to the police, ' I will produce the share which I received in such and such a dacoity ', the statement was capable of being divided, into four parts (1) an admission that there was a dacoity, (2) an admission that the accused took part in it, (3) an admission that he got part of the property, and (4) a statement as to where the property was. The first three parts were held not admissible in evidence, having regard to Section 25 of the Indian Evidence Act, but the fourth part was held admissible under Section 27. In taking this view the learned Chief Justice followed the principle laid down by a full bench of this Court in the leading case of Queen-Empress v. Nona I.L.R. (1889) 14 Born. 260. There the accused was charged under Section 411 of the Indian Penal Code with receiving stolen property and his state ment to the police, ' Yes, I have kept it; I will point it out; I have buried it in the fields ', was held to be admissible, on the ground that it set the police in motion and led to the discovery of the stolen property. The test laid down by Sargent C.J. in that case was ' what is the information given by the accused which set the police in motion and led to the discovery of the property ' Usually it is the statement by the accused that he has hidden in some place some object connected with the crime. Hence though the statement in that case consisted of three different sentences and the first of them ' I have kept it' was incriminating, all the three sentences were admitted in evidence. In the case of Emperor v. Bhikha Gober, the panchnama recited that the accused who was in police custody had stated to the panchas that he had committed the murder of the deceased and had removed her ornaments and he pointed out the place where the ornaments were found. Beaumont C.J. observed (at p. 888) that a statement that the accused had committed a murder would not fall under Section 27 of the Indian Evidence Act, because it was not a statement required to lead up to the production of the property and that it was quite enough to say that he would show the property which belonged to the deceased. It does not appear that in that case the accused had stated that he had placed the property of the deceased at the place which he offered to point out; otherwise that also would have been admissible as it distinctly related to the fact discovered. All that the learned Chief Justice meant to lay down is that even where the admissible portion of a confession of the accused in the custody of a police-officer is so mixed up with the inadmissible portion that the two cannot be separated without modifying the language in which the confession was made yet it is the duty of the Court to split up the statement into such portions and admit only that which led to the discovery of the relevant fact and distinctly relates to such fact.

15. In Sukhan v. The Crown I.L.R. (1929) Lah. 283 decided by a full bench of seven Judges, a statement by the accused, who was charged with the murder of a boy, that he had removed the karas (wristlets) from the boy, pushed him into a well and pledged the karas with one Allah Din, was held inadmissible except that part of it which related to the pledge of the ornaments which were subsequently recovered from the pledgee Allah Din. Shadi Lal C.J. observed (p. 299) :-

A man may remove the ornaments from the boy, but he may not give them to Allah Din. The removal is not the proximate cause of the ornaments being, found in the possession of Allah Din. Some other act must take place after the karas have been removed from the boy and before they come into the custody of Allah Din. That intervening act is the pledging of the ornaments by the prisoner with the latter, and it is only this statement in consequence of which the discovery was made.

16. If Mr. Shah's argument is accepted, the only statement admissible would be, ' You will find the karas with Allah Din,' but not the statement ' I have pledged the karas with Allah Din ', as that would be an incriminating statement. This would be too narrow a construction to be placed on the language of Section 27 of the Indian Evidence Act.

17. Mr. Shah further pointed out that in Pakala Narayana Swami v. The King-Emperor (1939) L.R. 66 IndAp 66 their Lordships of the Privy Council have stated that the words of Section 162 of the Code of Criminal Procedure exclude any confession made to any police-officer in the course of investigation whether discovery is made or not and' have suggested the possibility that that section pro tanto repeals the provisions of Section 27 of the Indian Evidence Act, though their Lordships left that question open. Subsequently there has been a divergence of opinion among the different High Courts. But this High Court : (1941)43BOMLR157 that the law as to the admission of evidence under Section 27 of the Indian Evidence Act has not been altered by anything which their' Lordships of the Privy Council have said in Pakala, Narayana Swami v. The King-Emperor. The conflict has now been set at rest by the amendment of Section 162 of the Code of Criminal Procedure by Act XV of 1941, which has added the words 'or to affect the provisions of Section 27 of that Act' to Sub-section (2) of that section. This leaves Section 27 of the Indian Evidence Act unaffected by the provisions of Section 162 of the Code of Criminal Procedure and the decision of the full bench in Queen-Empress v. Nana is still good law and binding on us.. In that case the statement of the accused that he had buried the property, though incriminating, was held admissible., There Sargent C.J. observed (p. 264) :-

It set the police in motion, the immediate consequence being that the police asked the accused to show them the spot, and accompanied him there; but such a proceeding on the part of the police was with the view to the discovery of the property, and was the natural consequence of the information they had received from him, and so connected it with the final result, viz., the discovery of the property as a causa causans.

18. This test was adopted in Shivabhai v. Emperor (1926) I.L R. 50 Bom. 683 : s.c. 38 Bom. L.R. 1013. and a statement made by the accused in the custody of the police to the effect that he had burnt the clothes of the deceased and would point out where he had done so was held admissible in evidence under Section 27 of the Indian Evidence Act on the discovery of the burnt clothes in the place pointed out.

19. Though some of the decided cases have gone much further, after examining almost all the cases on the point, we find that the consensus of judicial opinion is that Section, 27' allows only so much of the information, whether it is incriminating or not, as leads directly and immediately to the discovery of the fact.

20. Applying this test to the statement of the accused that he had kept a bomb in Rajkotwalla's office, if the immediate consequence of that statement was that the police were set in motion and asked him to show the spot and accompanied him there, the statement would be admissible if the bomb was found at that place. Without making such incriminating statement, he might still have said 'I have seen a bomb in Rajkotwalla's office and I will show it to you '. But that is not what he said, and an imaginary statement cannot be substituted for what he actually said and what set the police in motion. We, therefore, hold that the statement of accused No. 1 that he had kept a bomb in Rajkotwalla's office is admissible in evidence under Section 27 of the Indian Evidence Act.

21. Although no one actually saw accused No. 6 placing a bomb near Huchappa's tiffin box in the carding department, the circumstances clearly show that he alone must have done so., He was seen rushing downstairs when the rioters were chased and entering the carding department with a bag in his hand. He went near the window as deposed to by Huchappa and Sakharam and thus had an opportunity of placing the bomb in the window. He immediately went out by a different door and was arrested. Shortly afterwards Huchappa went to the window and found the bomb. It was not there when he had placed his tiffin box only a short while previously. This, combined with the fact that other bombs were placed by the rioters, does clearly lead to the inference that accused No. 6 must have carried a bomb with him in his bag and placed it near Huchappa's tiffin box. The learned Sessions Judge says that accused Nos. 1 and 6 did not place the bombs there with the deliberate and malicious intention of causing an explosion, but they were concealed there by accused Nos. 1 and 6 in order that they might get rid of them before the arrival of the police. Yet they must have known thati if the bombs accidentally dropped down or were mishandled by any one, they were likely to explode and cause damage to person and property. In fact Huchappa did pick up the bomb and not knowing what it was he threw it on the ground and was injured. Accused No. 6 was directly responsible for that injury, although he may not have meant it. He is, therefore, rightly convicted also under Sections 324 and 435, Indian Penal Code.

22. As against accused No. 4 there is the additional evidence that he pointed out a place under the railway bridge near the Chouda Kaman where three bombs were recovered. But in giving information regarding those bombs he did not admit that he had anything to do with them. He said to the police and the panchas that he would show them the place where accused No. 9 had put the bombs. That statement is clearly admissible in evidence, but it does not prove his complicity either in the manufacture or in the possession of the bombs. He may have been an innocent spectator when accused No. 9 put the bombs there and may have given the information to the police. It does not show that he was in conspiracy with accused No. 9, but it appears that the learned Sessions Judge has thought this evidence sufficient to find accused No. 4 guilty under Section 4(a) of the Explosive Substances Act. That clause provides punishment for any person who 'unlawfully and maliciously does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in British India of a nature likely to endanger life or to cause serious injury to property '. There is no other evidence to prove that accused No. 4 did any act with such an intent or conspired to cause an explosion by an explosive substance. His admission before the police, taken at its best, would only show that he was aware of the place where accused No. 9 had concealed bombs, and as it does not necessarily lead to the conclusion that he had a hand in the concealment of the bombs there, his conviction under Section 4(a) of the Explosive Substances Act cannot stand.

23. As against accused No. 13 there is sufficient evidence to prove that he was present among the rioters and took part in it, but made good his escape after concealing the bomb in a bag on the terrace of the C Mill. On that morning the police constable Ismail was on duty in plain clothes. He says that while he and Bhagwansing were talking, some ten or twelve people from the settlement moved into the open space in front of the gate of the Old Mill and among them were accused Nos. 6, 10, 12 and 13. Accused No. 9 gave a bag to accused No. 6 and all of them went towards the mill chawl through a small gate. Thus shortly before the offence accused No. 13 was found in the company of accused No. 6 and along with the other rioters he went into the Old Mills. Thereafter when the rioters were chased accused No. 13 could not be arrested. He absconded immediately thereafter and could not be traced for several days. When he was arrested on October 19, 1942, he stated that he had placed a bomb on the terrace of the C Mills on the day of the riot and offered to point it out. That statement is, for the reasons already given, admissible in evidence under Section 27 of the Indian Evidence Act. He took the Deputy Superintendent of Police and the panchas and pointed out the place on the terrace of the mill where a bomb was discovered. It is obvious that accused No. 13 must have placed the bomb there and he had no opportunity to do so except on the day on which the riot took place, as he had gone into the mills that day and remained in hiding since that day until the date of his arrest. Both Subrao and Sayyad Hussen who were present at the riot identified accused No. 13 at an identification parade as having been present at the riot and taken part in it. It is thus satisfactorily established that accused No. 13 was also among the rioters on that day.

24. The fact that as many as twelve or thirteen men suddenly rushed into the mill, as the police head constable Ismail says, and soon afterwards three of them asked Maruti to stop the motor on a false pretext and then created a disturbance by throwing stones and bobbins in order to stop the workers from doing their work, combined with the fact that some of them carried bombs, shows that they must have conspired to bring about a deadlock in the working of the mill. They shouted slogans and asked the workers to go on strike. Perhaps they intended to scare them away by exploding the bombs, but before they could do further mischief they were chased and at last six of them were arrested. It can safely be inferred from this that they had entered into a criminal conspiracy and had the common object of impeding the working of the factory. Thus they were members of an unlawful assembly with a common object, and under Section 149, Indian Penal Code, each one of them was responsible for all the acts which were done in furtherance of that common object. As they committed the riot with the common intent to impede the working of the factory, they are rightly convicted under Rule 35(1)(d) of the Defence of India Rules.

25. One of the stones thrown by the rioters injured Subrao and Shidram also was hit by a bobbin. Simple hurt was, therefore, caused to them by acts done in pursuance! of the common object of the rioters. Everyone of the appellants is, therefore, guilty under Section 323 read with Section 149, Indian Penal Code. But accused No. 6 caused injury to Huchappa by means of the bomb which he had left near his tiffin box and is, therefore, convicted not merely under Section 323 but under Sections 324 and 435, Indian Penal Code. Although all the accused are guilty of rioting, accused Nos. 1, 6 and 13 were armed with bombs and have been rightly convicted under Section 148. Accused Nos. 1, 6 and 13 were found in possession of bombs and have been convicted under Section 4(a) and (b) of the Explosive Substances Act, but, as already stated, accused No. 4's conviction under Section 4(a) of the Explosive Substances Act cannot stand.

26. It was pointed out that although the other accused may be strangers to the mill, accused Nos. 5 and 6 were employees of the mill and their presence in the mill at the time of the riot was not unnatural. But as stated by Sayyad Hussen accused No. 6 who was serving in the mill had left the work some days before and accused No. 5 was working on the night shift and had no reason to be present in the morning when the riot took place. Hence we confirm the conviction of all the appellants under the various sections except the conviction of accused No. 4 under Section 4(a) of the Explosive Substances Act.

27. As regards the sentence the learned Sessions Judge! has rightly made a distinction between the different accused. The effect of the aggregate sentence passed by him against accused No. 6 is rigorous imprisonment for twelve years, against accused Nos. 1 and 13 for ten years, accused Nos. 2' 3 and 5 for nine years and accused No. 4 for five years. We think that the sentence of seven years' rigorous imprisonment for the offence under Rule 35(1) (d) of the Defence of India Rules is rather excessive and we reduce it to five years in the case of each of the accused and we direct that the various sentences passed on them should run concurrently. We set aside the conviction of accused No. 4 and the sentence passed on him under Section 4(a) of the Explosive Substances Act.

28. The result is that the aggregate sentence passed on accused Nos. 1, 6 and 13 comes to seven years, that on accused Nos. 2, 3 and 5 to five years and that on accused No. 4 to three years. The convictions of the appellants and the sentences passed on them are confirmed with these modifications.