Authored By : O Kinealy, Banerjee

O Kinealy, J.

1. The circumstances out of which this case has arisen areas follows : The appellants with a large number of men armed with spears andtatties went near the house of a man named Ayat Ullah and abused him, and SafatUilah, the deceased, spoke to them, and then a man from the party of theappellants named Najib Ullah directed him to be beaten. It is said that the appellantAbdul Hakim speared Safat Ullah in the chest, and the appellant Jaban Ullahspeared him on the left side as he was falling. Safat Ullah was speared throughthe heart and died instantaneously.

2. The appellants were charged with offences punishable underSections 148, 302, 149 and 326 of the Indian Penal Code, and there was anadditional charge laid against the appellant Abdul Hakim for an offencepunishable under Section 302/149 of the Code.

3. The assessors in the Court below found the appellants guiltyof an offence punishable under Section 148 of the Code, and they held that thecommon object was to take possession of or measure some land. The SessionsJudge was of opinion that this common object was not made out. He found,however, that the appellants were the persons who actually killed Safat Ullah,and convicted them of an offence under Section 326, namely, of causing grievoushurt by a dangerous weapon. He acquitted them of the offence under Section 148.

4. In appeal it has been argued before us that the evidenceon the record is not sufficient to support the conclusion arrived at by theSessions Judge, namely, that the appellants are the persons who actually causedthe death of the deceased, and that as they have been acquitted by the SessionsJudge of the offence under Section 148 they must be acquitted.

5. We do not. share the difficulty experienced by theSessions Judge as regards the common object. Here we have a large body of menarmed with dangerous weapons crossing a broad river and marching to the houseof an obnoxious individual, and there, under the directions of a leader,attacking Safat Ulliah and killing him. It seems to us that, at the moment atleast at which they obeyed the directions of the leader, their common objectwas to cause hurt, and that they are liable under Sections 149 and 326.

6. Then it is said that we have no power under Section 423of the Procedure Code to alter the finding and deprive the appellants of thebenefit already conferred upon them by an acquittal in respect of the offenceunder Section 148.

7. We are of opinion that the appellants cannot rely uponSection 403 on the ground that they have been previously acquitted, because thepresent appeal is not a second trial, but only a continuation of the first trial.Under Section 423 the Appellate Court can alter the finding, maintaining thesentence but not enhancing it. The power of the Court to alter the finding,therefore, is not limited in the manner claimed by the appellants. There areno doubt some cases to which this procedure would not be appropriate. Thatdepends upon different considerations.

8. We, therefore, alter the conviction under Section 326 toa conviction under Sections 149 and 326, and maintaining the sentence we directthat the appeal be dismissed.

Banerjee, J.

9. I am of the same opinion.

10. The appellants in this case have been convicted by thelearned Sessions Judge of Sylhet of the offence of voluntarily causing grievoushurt by dangerous weapons, and they have been sentenced to rigorousimprisonment for six years each.

11. The learned Counsel for the appellants contends that theevidence is not sufficient to prove that the grievous hurt was caused by theappellants. This, contention seems to me to be to some extent well founded; butit cannot, in my opinion, be of much avail to the appellants. For I think theevidence fully proves that the accused were members of an unlawful assembly;that the grievous hurt in question was caused in prosecution of the commonobject of that assembly; or that at any rate the accused knew that suchgrievous hurt was likely to be caused in prosecution of that object; and thathaving regard to Section 149 of the Indian Penal Code the accused have beenrightly convicted of the offence of voluntarily causing grievous hurt bydangerous weapons, even if they did not themselves cause such hurt. I should,therefore, under Clause (b) of Section 423 of the Criminal Procedure Codeaffirm the conviction and sentence, the lower Courts finding of guilty underSection 326 of the Indian Penal Code being altered into one of guilty underSection 326 read with Section 149 of the Indian Penal Code.

12. It was contended by the learned Counsel for theappellants that we could not alter the finding in that way, as the appellants,who were also charged with rioting under Section 148 of the Indian Penal Code,have been acquitted by the learned Sessions Judge of that offence, on theground that they were not members of an unlawful assembly, and there is noappeal by the Local Government against such acquittal. It was argued that thepower conferred on the Appellate Court by Section 423, Clause (b), to alter thefinding, must be held to be subject to this restriction, namely, that it cannotfind the appellant guilty of any offence of which he has been acquitted by theCourt below; and in support of this argument the last paragraph of Section 439was referred to.

13. I am unable to accept this argument as correct. The lastparagraph of Section 439 of the Criminal Procedure Code, relied upon by thelearned Counsel for the appellants, cannot be held to limit the powers of aCourt of Appeal. It is intended only to limit in certain respects therevisional powers of this Court, which would otherwise have been competent inrevision to convert a finding of acquittal into one of conviction. As to theextent of this limitation on the powers of this Court as a Court of Revision,there is some conflict of opinion [See Queen-Empress v. Balwant I.L.R. 9 All.134, Heera Bai v. Frqmji Bhikaji I.L.R. 15 Bom. 349, Thandavan v. PeriannaI.L.R. 14 Mad. 363]; but it is not necessary to consider the question here.

14. Section 423, Clause (6), has no such restriction imposedupon it. There is, under that clause, only one restriction to the power of the AppellateCourt on an appeal from a conviction, and that is, that it cannot enhance thesentence. It is possible to imagine cases in which this restriction may standin the way of the Appellate Courts altering the finding. Thus, if an accusedperson is charged with having murdered A, and _ also with having causedgrievous hurt to him, and is acquitted of the former offence but convicted ofthe latter and sentenced to seven years rigorous imprisonment by the firstCourt, the Appellate Court cannot, on the appeal of the accused, alter thefinding into one of guilty of murder, because, as it cannot enhance thesentence, the result will be that a person convicted of murder, for which theonly punishment is either death or transportation for life, will be punishedmerely with imprisonment for seven years-a sentence which is not in accordancewith law. That, however, is not the case here, and so we need not consider itfurther. But in a case like this, in which no such difficulty arises, 1 thinkthe Appellate Court can, in an appeal from a conviction, alter the finding ofthe lower Court and find the appellant guilty of any offence of which he mayhave been acquitted by that Court.

15. This view does not in any way clash with the salutaryprinciple which protects with zealous care orders of acquittal againstinterference except upon appeal by the Local Government; nor does it tend tothrow any difficulty or discouragement in the way of persons seeking to haveconvictions by which they feel aggrieved set aside by appeal. It is the accusedwho by appealing from the conviction brings the whole case before the Court ofAppeal; and the whole case being before it, and the law in express termsempowering it to alter the finding, there is no reason why it should not have thepower to find the appellant guilty of an offence which it considersestablished, merely because the Court below has acquitted him of that offenceand found him guilty of some other offence. The power of enhancing sentencebeing taken away no such alteration in the finding can prejudice the accusedmaterially.

16. There is, therefore, no reason for limiting the plainand unrestricted language of Section 420, Clause (b), of the Code of CriminalProcedure in the manner contended for. I may add that the view I take issupported to some extent by the decision of this Court in Krishna Dhan Mondulv. Queen-Empress I.L.R. 22 Cal. 377 [LQ/CalHC/1894/104] .

17. For the foregoing reasons I would alter the convictioninto one under Section 326 read with Section 149 of the Indian Penal Code andmaintain the sentence in the case of each of the appellants.

.

Queen-Empress vs. Jabanulla and Ors. (25.06.1896 - CALHC)