Rankin, C.J:— In this case ten persons were put upon their trial in connection with a riot of a familiar type. The complainant Nidan Nath makes the case that on the 6th of November, 1927, he and certain relations went to cut paddy from plot No. 273, when the accused armed with lathis (except Mahatab who had a pointed mooli and the first accused Tota Meah Chaudhuri, who was carrying a stick) came and objected to the cutting of the paddy. The case is that, after the accused Yakub had seized the sickle from Nidan and Moizuddin had seized the sickle from another person of the complainant's party, they began beating Nidan; that one Pachikul Huq or Pachu came up and reproved the accused; whereupon. Tota Meah Chaudhuri, accused No. 1, who was coming up from the rear ordered his son Mahatab, accused No. 2, to kill Pachu; and that, thereupon, Mahatab drove the mooli he held into the stomach of Pachu near the navel, in consequence of which injury the man afterwards died.

It appears that there had been litigation between, complainant and Tota Meah about this plot, and it appears also that when Pachu had been taken away to a certain house and then taken thence to a hospital at about 6-45 on the following morning he made a dying declaration. He made another, a little later on, at about 8 o'clock. At the same time Nidan and one Kholu went to the thana and lodged a complaint, and a cross-complaint by one Jamiruddi was lodged against the party of the complainant.

The defence case is that there was an occurrence, that the occurrence was on a different field altogether and, in particular that the man Pachu died, not because accused No. 2 or accused No. 1 had anything to do with the matter (the defence, case is that they were not there) but because another of the accused, namely, Moizuddin, accused No. 4, had to pointed bamboo and on this being used against him, he picked it up and threw it as a missile; that Moizuddin does not know what the result of this missile was, but thinks no doubt that is the way in which Pachu met his death.

That is in the simplest terms the case of either side.

The learned Judge has devoted a: good deal of labour and time to a description of the case for the prosecution and the case for the defence. He has gone through the documentary and oral evidence and has endeavoured as best as he could to put the case of either side forcibly and clearly to the jury and we have in this appeal been invited to interfere with the unanimous verdict of the jury, because of some nine objections which have been very ably urged by Mr. Fazlul Huq on behalf of the appellants. I propose quite shortly to go through each of those objections and to state my views upon them.

I should have mentioned that the jury found accused No. 1 guilty in respect of Pacini's injury, under section 326 read with section 109. They found Mahatab guilty, under the first part of section 304. These accused and the remaining accused have all been found guilty under section 147.

The first objection is to the joinder of the charges in the present case. It is said that it was wrong in this case to charge the first accused alternatively under section 155 of the Indian Penal Code. It is not here disputed that if the man had been tried by himself the additional charge under section 155 would have been within section 236 of the Code of Criminal Procedure, but it is said that, if these persons were all being tried together, the section which has to be regarded is section 239 and that under section 239 there is no provision made by which accused No. 1, in addition to being charged with rioting and ether charges arising out of the riot, could be charged in the alternative under section 155. I cannot see that there is any necessity to read sections 239 and 236 in such a way as to produce that result. In this particular case the first accused has not been convicted under section 155. The question, therefore, is a pure question whether the trial is vitiated by the joinder in the alternative of the charge under section 155, and I must flatly refuse to lay it down that where accused persons are being tried together under section 239 it is not possible to have an alternative charge against one of those accused persons. I see no necessity whatever to read this section in that manner. Section 236 deals with the question of what charges a single person may be made to meet and it says that, in certain cases, where it is doubtful which offence he has committed, you may charge him with all and you may charge him also in the alternative. The object of section 239 is not to say what charges a man may be called upon to meet but to say what persons may be charged and tried together. I see no difficulty at all in that matter.

Again, it is said that a charge under sections 147 and 304, Indian Penal Code, against the first accused could not be brought under section 236 or 239, Criminal Procedure Code. The ground of this objection is that the charge under section 304, according to the charge of the learned Judge, might be independent altogether of the charge under section 147, because, although the prosecution case was that this injury on Pachu arose at the end of the riot and out of the riot, still the learned Judge pointed out to the jury that it was possible for them to take the view that the riot had entirely finished and that this killing was after the riot was over. It seems to me that in a case of this character it is quite right that these charges should go to the jury in the same trial. It is entirely for the jury to say whether they were, out of the riot and incidents of the riot or whether one followed upon the other, and I cannot agree that there is any difficulty in theory any more than in practice in the course which has been adopted during this trial.

As regards the second objection, that has reference to what is called a naraji petition or petition of objection to a police report to the effect that Jamiruddin's complaint was a false complaint. What is said is that naraji petition is relied upon a good deal by the learned Judge in his charge to the jury, because it is a story told on the part of the accused and in various respects the defence set up in the present trial is not exactly what was set up in that petition. The objection is that this petition was not properly proved. The witness was witness No. 9 who was a mukhtear. He said “I was the mukhtear for the accused in the lower court in this case. Jamiruddin filed a counter case to this. After police investigation a naraji petition was filed. This naraji was written by the mohuriroi Babu Bangachandra Sen,” and the writing of the mohurir was identified by the witness. The witness continued:— “The petition was written and read over to the accused.” In cross-examination he said “The petition was not written in my presence. One of the accused, I do not remember which, handed it to me.” It is said that because of this it is not sufficiently proved that this naraji petition in the counter case emanated from the parties in the dock. It seems to me that if it was going to be maintained that this naraji petition which was said to have been written and read over to the accused was not a petition of the parties in the dock that suggestion should have been, carried much further in the cross-examination than it was; and I am not of opinion that there is any reason why this petition should not be used by the learned Judge in the way it was used.

The third objection has reference to the way in which certain dying declarations were spoken to by the 7th and 8th witnesses for the prosecution; but this objection has not been pressed and it is not necessary to go into that matter.

Then comes what is the most difficult of the points which have been raised on behalf of the appellants. P.W No. 20, the Sub-Inspector of Police, gave evidence in chief and he gave his evidence about the arrest of Tota Meah and how the other eight accused appeared in court after service of certain process. He then said this: “During investigation I met Tota Meah several times and he was looking after the case of Jamiruddin during the time that he was released on bail. Tota Meah did not say to me that Moizuddin gave the fatal blow and not Mahatab. I got no such story at all during investigation.” The objection taken to the admissibility of this evidence is that it offends against section 162 of the Code of Criminal Procedure. So far as the statement about Tota, Meah is concerned, it is the law of this Court that section 162 is not intended to apply to statements made by accused persons themselves. I was a party to one decision in which that was laid down, and on that footing it does not seem to me that any objection can arise out of section 162 so far as regards Tota Meah. There remains the simple sentence “I got no such story at all during investigation”. Now, so far as any of the accused is concerned, the same reasoning will apply as applies to Tota Meah's case; but it may be said that this general statement that no such story at all was obtained during investigation has inferentially reference to any statements made to the police by persons other than the accused in the course of the investigation commenced upon Jamiruddin's complaint, a complaint which really had reference to the same occurrence as the present case refers to. Section 162 is always difficult to apply, but it does seem to me that it would be going beyond the immediate intention of section 162 to lay down that a police officer in charge of an investigation was not to be at liberty to explain his conduct by making such a statement as this that “at the time I did so and so I had received no information to such and such, an effect.” If that were to be laid down on the ground that inferentially it has reference to the statement of a witness before the police, I think not only would section 162 in its intention be much exceeded, but it would be practically impossible to do justice at all. In the present case, the position was that, at the sessions trial, evidence was led for the defence in rather peculiar circumstances to show that the death of Pachu was due to the act not of accused No. 2 but of accused No. 4; and in these circumstances, naturally the investigating officer would want to explain why a charge was not brought against accused No. 4 as well as against accused No. 2. He would want it to be made clear that so far, as he was concerned, he was doing his ordinary duty properly and without bias against one of the accused rather than another. Again, the fact that this defence was put forward late is a fact which appears on the record itself, and it appears to me that it would be a legitimate comment upon a defence of this character to point out that the first time that it was heard of was at the last stage.

I have considered carefully the question whether, assuming for the sake of argument that some of these witnesses may have stated to the police that the blow was caused by Moizuddin, the defence were prejudiced in the sense that they had no means of bringing that fact out. What is put to us is that, after this statement by the Sub-Inspector, the defence would, not care to call any person as a witness who had stated to the police that the blow was given by Moizuddin. Let us consider that, because if that can be made out, no doubt it would be a matter which would require very great consideration. If it be true that the defence had witnesses who had stated this to the police, why should not the defence have called such witnesses? If they called such witnesses and if the prosecution were minded to set up against them that they had not told this to the police, it would have been the duty of the defence to cross-examine this particular police officer when he was giving his evidence. Nothing can be more clear than that the police officer, having given such evidence as that, would have been subject to cross-examination by having it put to him straight away that it was not true that he got no such information, and if anybody then had endeavoured to use section 162 to hamper the defence, it would clearly have turned out that either the position was that section 162 prohibits the court from letting the evidence be given in chief or else it permits the court to allow the question to be put in cross-examination. I am not satisfied that there has been any miscarriage of justice in this matter.

The fifth objection is to certain passages in the charge where the learned Judge is endeavouring to state forcibly and reasonably the case for the prosecution. The objection is that the learned Judge describing the prosecution case referred to Tota Meah being a person who was steeped in litigation from his youth, and always getting into squabbles of a land-grabbing character. That really is the point of the remark. In this case it seems to me to be quite legitimate. No body is saying that because Tota Meah was given to having disputes about lands the jury are to assume that he was coming on this land armed with a lathi and that, therefore, he would likely be guilty of this particular offence. What the learned Judge was dealing with and what the prosecution case was dealing with was the question as to the probability whether one plot of land or the other plot of land was the subject matter of dispute, and in the course of that question we have to consider what the parties were doing. Various section 145 cases and so on came into question. I am not at all satisfied that because the learned Judge said that the prosecution case was that this was a man who was having squabbles about land that would in any way mislead the jury for the purpose in question.

In the same way comment is made that the learned Judge says that there is nothing in the evidence that directly points to any connection being possible between the statement made by the deceased in the dying declaration and the statement made in the First Information report which was lodged by Nidan and another at the thana, but the objection there I think depends entirely on taking the learned Judge's words too much at the foot of the letter. It is said that if you look into the evidence you will find that one man if not two were with the deceased at the time he received the injury and heard his version of what had happened. It is said that Nidan had an opportunity of meeting this man and that, therefore, it is not impossible that the deceased with a sharpened bamboo run into his stomach had by means of these other people done something to induce Nidan and his companions to tell the same story at the thana that he had been telling about the matter. What the learned Judge says is that there is nothing in the evidence which directly points to any connection between those two things being possible. Of course anything is possible in the widest sense of the word. What the learned Judge really means is—there is no substance in the evidence directly pointing to that event. It does not mean merely that there is no evidence that the two things are in some way connected; what he says is that he does not see anything in the evidence which gives a basis for suspicion of any such connection. I do not think that any jury would be misled by those remarks by the learned Judge, particularly in a case which was thoroughly well fought out.

Then, again, in the charge the learned Judge has in two places enlarged upon the fact that in the counter-information there is no story to the effect that at the end accused No. 4, Moizuddin, picked up the bamboo and threw it and that in that way Pachu was killed. In the course of his charge he says that not only is that not in the counter-information but Pancjiu's name is not there mentioned at all. As far as Panchu's name is concerned, it appears that in an altered form it was there. The substance of what the learned Judge is saying is that the story told by the defence is not to be found in the counter-information at all. Very natural mistakes about these names which are frequently spelled differently seem to me to be entirely innocuous here.

In the same way, I cannot discover that there is any objection in the passage in the charge where the learned Judge says that his view or rather that a very possible view in his opinion is that the prosecution story is weak because it has not got a satisfactory ending and the defence story is weak because it has not got a satisfactory beginning. By this he means that it is difficult to make out from the defence version exactly how these parties were supposed to be facing each other according to the defence in field, No: 417. Our attention has been called to the evidence of the third witness for the defence and to the statements made by Yakub under section 342 of the Code of Criminal Procedure and I am bound to say that, having read those statements, it still seems to me to be a reasonable criticism which the learned Judge left to the jury. I would point out that the learned Judge most carefully expressed himself while putting the matter before the jury. I see no objection to it.

We then come to the question whether or not the charge of abetment of culpable homicide against Tota Meah was properly left to the jury. As a matter of fact, the jury have carefully considered this question because we know that they brought in a verdict of guilty against Tota Meah under section 326 read with section 109; and objection is taken to one passage in which the learned Judge says “The order, if you believe it, was to kill Panchu,” and it is said that whereas some witnesses say that Tota Meah shouted to his son “kill the sala other witnesses say beat.” The very expression objected to contains the caution by the learned Judge “if you believe it” and it is said that if the learned Judge had been more elaborate and had pointed out that the word beat was a possible translation of the vernacular word as used by some witnesses, it is possible that the, jury, if they convicted at all, would have convicted under section 324 read with section 109. Having regard to the facts of this case and the character of the case, which the jury have unanimously believed, I do not think that there was any cause for the learned Judge to have been more elaborate than he was.

The jury carefully considered this question. They had the evidence before them and they have come to the conclusion that at the time the intention of Tota Meah was such as to justify a conviction under section 326 of the Indian Penal Code. In my judgment, while this case requires a good deal of anxious consideration, the charge to the jury was extremely careful, laborious and able and the jury have been unanimous, and it appears to me that this appeal oust be dismissed.

The appellants who are on bail must surrender to their bail bonds and serve out the remaining portion of the sentences imposed on them and the appellant No. 1 will now pay the fine.

Ghose, J.:— I agree.

O.U.A

Appeal dismissed.