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Nayan Ullah And Others v. Emperor Opposite Party.

Calcutta High Court

Jul 17, 1924

Judgment

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Factual and Procedural Background

Eleven appellants (and two others) were tried before the learned Additional Sessions Judge of Sylhet and a Jury on charges arising from a riot in which one Kabir Ulla (also referred to as Sheikh Kabir) was killed. The first appellant, Nayan Ulla, was charged with rioting, rioting armed with a deadly weapon, and culpable homicide not amounting to murder by causing the death of Kabir Ulla. The 11th appellant, Kedar Nath Chowdhury, was charged with committing riot and for being liable for culpable homicide committed by Nayan Ulla under S.149 and alternatively under S.150 of the Indian Penal Code. The other accused were charged with rioting and liability for culpable homicide by reason of S.149, IPC. Two of the accused were acquitted by the Jury.

The Jury returned a unanimous verdict convicting Nayan Ulla of rioting under S.147, IPC, and also of being constructively liable for culpable homicide under S.149, IPC (an offence with which he had not been charged). Kedar Nath was found guilty by the Jury under S.304 read with S.150, IPC, but not guilty under S.147 or under S.304 read with S.149. The remaining nine appellants were found guilty under S.147 and S.304 read with S.149, IPC. This appeal challenges various aspects of those convictions and the trial process.

Legal Issues Presented

Whether the conviction of Nayan Ulla under S.304 read with S.149, IPC (constructive culpable homicide) is valid when he was not charged with that offence at the Sessions trial.
Whether the conviction of Kedar Nath under S.304 by reason of S.150, IPC is sustainable given the charge framed against him (which alleged he engaged or employed the single co-accused Nayan Ulla) and the Jury's finding concerning Nayan Ulla.
Whether any misjoinder occurred because the offence of hiring a person to take part in a riot is distinct from the riot itself, and whether such misjoinder vitiates the trial.
Whether the conviction of certain appellants under S.304 read with S.149, IPC must fail because one of the alleged perpetrators (Nayan Ulla) was acquitted of the substantive offence.
Whether the inclusion of as one of the common objects "disobeying an injunction under Section 144 of the CrPC" — when the injunction was served on only two appellants — renders the common object (and the S.149 liability) invalid for the majority of appellants.
Whether omissions in directing the Jury (for example, failing to draw attention to casualties on both sides) constitute material non-direction invalidating the convictions or requiring different sentences.

Arguments of the Parties

Appellants' Arguments

The conviction of Nayan Ulla under S.304 read with S.149, IPC is illegal because he was not charged with that offence at the Sessions trial.
Kedar Nath could not be convicted under S.304 by reason of S.150 because the charge against him was specifically that he engaged or employed the single person Nayan Ulla, and the Jury found that Nayan Ulla did not commit the culpable homicide.
A plea of misjoinder: the offence of hiring a person to take part in a riot is a separate transaction from the riot itself, and joining these counts may have unfairly prejudiced the trial.
The common object alleged (assault and disobedience of an order under S.144 CrPC) included an element (disobeying S.144) that was not an offence as to the majority of appellants, so they could not be said to share that common illegal object.
The acquittal of Nayan Ulla of the substantive offence should undermine the S.304 read with S.149 convictions of the other appellants if those convictions depended on culpable homicide by him.

Arguments advanced in support of the convictions / other contentions noted by the Court

The prosecution's case, on the evidence, was that Nayan Ulla had actually caused the death of Kabir Ulla by stabbing him in the neck with a spear.
It was argued that Section 237 of the Criminal Procedure Code might justify convicting Nayan Ulla of an offence not specifically charged, because Section 237 permits conviction of an offence not charged if it might have been charged under Section 236 (where a single act may constitute more than one offence and there is a doubt as to which offence is constituted).
The prosecution apparently proceeded on factual material which, in the court's view, could support treating the alleged hiring/employing and the riot as the same transaction (relevant to the misjoinder point).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

On the question of Nayan Ulla's conviction under S.304 read with S.149, IPC the Court held the following:

As a general rule a person cannot be convicted at a Sessions trial of an offence with which he has not been charged. Exceptions exist in CrPC Sections 237 and 238, but Section 238 was inapplicable here.
Section 237 permits conviction of an uncharged offence only where the doubt is as to the application of the law to the proved facts (i.e., which of several offences the same proved facts constitute), not where there is doubt as to facts that constitute an element of the offence.
The prosecution's pleaded case was that Nayan Ulla actually caused the death by stabbing; the Jury's acquittal on the substantive charge (and their acquittal on related weapon count) indicates they did not accept the factual case that he inflicted the fatal wound. Therefore, there was no situation of legal doubt under Section 237 that would permit convicting him of a different offence he was not charged with.
Consequently, the conviction of Nayan Ulla under S.304 read with S.149, IPC was illegal and had to be set aside; his conviction under S.147, IPC (rioting) was upheld.

On the conviction of Kedar Nath under S.304 read with S.150, IPC the Court reasoned:

The charge against Kedar Nath was specifically that he engaged or employed one person — the co-accused Nayan Ulla — and that by reason of that engagement/employment he was liable if Nayan Ulla committed culpable homicide. The Jury found that Nayan Ulla did not commit the homicide.
Therefore, on the charge as framed, Kedar Nath could not be convicted of constructive culpable homicide under S.150 because the statutory liability under that section depended on the person employed (Nayan Ulla) having committed culpable homicide.
The Sessions Judge further misdirected the Jury by going beyond the charge: he spoke of prompting or connivance (which was not in the charge) and explained connivance at length; he also referred to "persons" in the plural even though the charge alleged hiring of a single person. These were improper directions contrary to the precise charge framed and could have misled the Jury.
For these reasons the conviction of Kedar Nath on that charge could not be upheld and was reversed; Kedar Nath was to be acquitted and his bail-bond discharged.

On the plea of misjoinder:

The Court acknowledged that hiring a person to take part in a riot is a distinct offence from the riot itself and ordinarily may be a separate transaction. However, in the special circumstances of this case the alleged hiring/employing and the riot appeared to be the same transaction: the time and place given for the hiring matched the time and place of the rioting, and the culpable homicide for which Kedar Nath was sought to be made liable was committed in the riot. Hence the Court held the plea of misjoinder failed.

On the objection relating to the common object including disobedience of an order under Section 144 CrPC:

The Court rejected the contention that the inclusion of disobedience of S.144 (an order served on only two appellants) meant the majority could not share that object. The Court held that even if some of those present were guilty of the substantive offence and others only of abetment, the common object could still be the same and sustain liability under S.149 where applicable.

On whether the S.304 read with S.149 convictions of the remaining appellants were affected by the acquittal of Nayan Ulla:

The Court noted that the charges framed against the remaining appellants made them liable for culpable homicide in consequence of it being committed by one of the members of the unlawful assembly without naming Nayan Ulla. Therefore, the acquittal of Nayan Ulla on the substantive charge did not render those convictions illegal under the charge as framed.

On the alleged non-direction to the Jury about casualties on both sides:

The Court observed the omission but regarded it as a piece of non-direction "of no great importance," concluding it did not vitiate the convictions. The Court also considered that sentences for the other appellants should not exceed that imposed on Nayan Ulla.

Holding and Implications

Holding:

The appeal is allowed in part.
Kedar Nath: ACQUITTED. The conviction and sentence passed on him under S.304 read with S.150 are reversed; his bail-bond is discharged.
Nayan Ulla: The conviction under S.304 read with S.149, IPC is SET ASIDE. His conviction under S.147, IPC (rioting) is UPHELD and he is sentenced under S.147 to two years' rigorous imprisonment.
The remaining nine appellants: Their convictions under S.304 read with S.149, IPC and S.147, IPC are UPHELD, but their sentences are reduced to two years' rigorous imprisonment each.
Overall disposition: "Appeal partly allowed." (As stated in the opinion.)

Implications:

The direct effects are the acquittal of Kedar Nath, the setting aside of Nayan Ulla's conviction under S.304/149 while preserving his rioting conviction with a two-year sentence, and the reduction of sentences to two years' rigorous imprisonment for the other nine convicted appellants.
The opinion does not purport to lay down any new legal precedent beyond the application of existing rules (for example, the limits of CrPC Section 237 and the requirements of a proper charge and jury direction). No novel legal principle or binding precedent beyond the decision in this case is stated in the provided text.

Show all summary ...

1. The eleven appellants before us and two others were tried before the learned Additional Sessions Judge of Sylhet and a Jury on various charges arising out of a riot in the course of which one Kabir Ulla was killed. The first appellant Nayan Ulla was charged with offences of rioting, rioting armed with a deadly weapon and with culpable homicide not amounting to murder by causing the death of Kabir Ulla. The 11th appellant Kedar Nath Chowdhury was charged with the offence of committing riot and for being liable for culpable homicide committed by Nayan Ullah under the provisions of S. 149, Indian Penal Code, and also for being liable for the same culpable homicide by reason of the provisions of S. 150 of the Code. The other accused were charged with rioting and also for being liable for the culpable homicide committed by a member of that unlawful assembly by reason of S. 149, Indian Penal Code. Two of the accused were acquitted. Nayan Ullah was convicted on the unanimous verdict of the Jury of rioting punishable under S. 147, Indian Penal Code, and also of being constructively liable for culpable homicide under the provisions of S. 149, Indian Penal Code: this being an offence with which he had not been charged. Kedar Nath was found guilty by the Jury under S. 304, Indian Penal Code, read with S. 150 Indian Penal Code, and not guilty under S. 147, Indian Penal Code and S. 304 read with S. 149, Indian Penal Code The remaining nine appellants were found guilty under S. 147, Indian Penal Code, and S. 304 read with S. 149, Indian Penal Code. The two accused who were acquitted were given the benefit of doubt by the Jury.

2. The first point taken in this appeal is that the conviction of Nayan Ulla under S. 304 road with S. 149, Indian Penal Code, when he was not charged with such an offence is bad in law.

3. We think this objection must be maintained. Ordinarily a person cat not be convicted at a Sessions trial of an offence with which he has not been charged. There are some exceptions to this rule which are to be found in Sections 237 and 238 of the Cr PC. Section 238 can have no application in this case. Constructive culpable homicide cannot be said to be a minor offence compared with actual culpable homicide with which Nayan Ullah was charged. It has been argued that Section 237 of the Cr PC, might justify this conviction. Section 237 of the Cr PC provides for conviction of a person of an offence not charged but which might have been charged under the provisions of Section 236 of the Cr PC. That Section provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences.” It is a settled law that the doubt referred to in this Section must be a doubt as to application of the law to the proved facts and the Section has no application where there may be a doubt as to the facts which constitute one of the elements of the offence. Here the pase for the prosecution on the evidence was that Nayan Ullah had actually caused the death of Kabir Ullah by stabbing him in the neck with a spear. The Jury though they actually returned no verdict on that charge must be held to have found that it was not proved that Nayan Ulla actually inflicted the fatal wound. In fact by acquitting him of the offence charged under S. 148, Indian Penal Code, it would seem that they did not believe the evidence that he was armed with a spear. On the case as made by the prosecution there cannot be any doubt as to what offence would have been committed if the witnesses had been believed. It was clearly a case in which the accused would have been liable under the provisions of S. 304, Indian Penal Code. Taking this view we must hold that the conviction under S. 304 read with S. 149, Indian Penal Code, was illegal and must be set aside.

4. The next point taken is as regards the conviction of Kedar Nath under S. 304, Indian Penal Code, by reason of the provisions of S. 150. The charge framed against Kedar Nath under these sections is in the following terms “That you on or about the 1st day of May 1923 at the band Baban Khamar engaged or employed your co-accused Nayan Ullah to join as, or become, a member of an unlawful assembly and that the said Nayan Ullah as a member of such unlawful assembly in pursuance of such engagement or employment committed culpable homicide not amounting to murder by causing the death of one Sheikh Kabir and thereby committed an offence punishable under Ss. 304-150 of the Indian Penal Code, and within the cognizance of the Court of Sessions.” The charge, therefore, against this accused is a definite one of having engaged or employed one person, the co-accused Nayan Ullah and further Kedar Nath's liablity under this charge is by reason of this Nayan Ullah having committed culpable homicide not amounting to murder. The Jury having found that Nayan Ulla did not commit the murder we hold that Kedar Nath could not on this charge be convicted of constructive culpable homicide under the provisions of S. 150. The Jury should have been directed that on this charge as framed they could not convict Kedar Nath unless they found that the culpable homicide had been committed by Nayan Ullah. Further we find that in explaining this charge to the Jury the learned Sessions Judge seriously misdirected them. He tells them that some of the necessary points of proof are tot only that the accused hired or engaged the person in question but also in the alternative that he prompted or connived at such hiring, etc. This he should not have done as there is no reference to prompting or connivance in the charge as framed. But nevertheless he went on to explain at length what would constitute connivance. He further went on to say “you must find that there had been an unlawful assembly composed of persons said to have been hired by the accused, and in the course of which some offence had been committed for which the accused would have been responsible equally with those who were members of that unlawful assembly before you can convict the accused”. The serious misdirection here is that he speaks “persons” in the plural whereas the charge against this accused was limited to hiring or engaging Nayan Ullah. Further we may remark that it was not necessary that they should find the accused responsible for any offence committed in the course of the riot. If it was found that the accused did hire Nayan Ullah to take part in the riot the provisions of the section would throw the responsibility on him without any finding of the Jury as to his responsibility being necessary. We hold, therefore, that the conviction of Kedar Nath on this charge cannot be upheld.

5. In connection with this charge a question has also been urged that the whole trial was bad for misjoinder. The offence of hiring a person to take part in riot is certainly a separate and distinct offence from riot itself: and ordinarily the hiring and the riot would be separate transactions. It is hard to understand on what evidence the prosecution sought to establish the charge which had been framed against Kedar Nath under S. 150, Indian Penal Code, read with S. 304, Indian Penal Code. But it would seem that they were such that in the special circumstances of the case we are justified in holding that the alleged hiring or employing and the riot were the same transaction. In the charge the time and place of the hiring are given as the 1st of May 1923 and band Baban Khamar respectively which are the time and place at which the rioting is alleged to have taken place. It does not appear that there is any suggestion of any meeting between Kedar Nath and Nayan Ullah at Baban Khamar before the time of riot. Further the offence of culpable homicide for which Kedar Nath is sought to be made liable by the operation of S. 150 was committed in the riot and, therefore, it might be said that the offence charged under S. 304/150 was not complete until the riot had taken place. Taking this view we hold that the plea of misjoinder fails.

6. As regards the remaining accused it is objected that one of the two common objects stated in the charge was not an offence so far as the majority of the appellants are concerned. The common objects so stated are, firstly assaulting the deceased Kabir Ullah and others and secondly disobeying an injunction under Section 144 of the Cr PC. It has been pointed out that only two of the appellants were persons against whom the order of injunction was directed and served. It is, therefore, argued that though they might be guilty of the offence under S. 188 their companions could not be guilty of the same offence. It is argued that committing an offence and abetment of it cannot be the same common object. We are unable to accept this contention. It appears' to us that if certain persons jointly enter on certain land in defiance of an order that has been passed under Section 144 of the Cr PC, though some may be guilty of the offence under S. 188, Indian Penal Code, and others of abetment of that offence nevertheless the common object of them all was one and the same object.

7. It is further urged that the charge under S. 304 read with S. 149, Indian Penal Code against these appellants must fail on account of the acquittal of Nayan Ullah of the substantive offence. But in the charge as framed against these appellants they were made liable for the offence of culpable homicide in consequence of it having been committed by one of the members of the unlawful assembly without the name of Nayan Ullah in the charge. That being so we can see no illegality in the conviction on that charge.

8. Our attention has been drawn to the omission to draw the attention of the Jury to the fact that one man was killed and one injured on the side of the accused as well as on the side of the complainant. We cannot believe that these facts were not in the mind of the Jury and we regard it as a piece of non-direction of no great importance. On the view we hold we think that the sentences passed to the appellants other than Nayan Ullah, should not be greater than that which we pass on Nayan Ullah himself.

9. For the above reasons we allow this appeal in the case of Kedar Nath. We reverse the conviction and sentence passed on him and direct that he be acquitted. The bail-bond of Kedar Nath will be discharged. We set aside the conviction of Nayan Ullah under S. 304 read with S. 149, Indian Penal Code. But we uphold the conviction of Nayan Ullah under S. 147, Indian Penal Code, and under that section we sentence him to two years' rigorous imprisonment. In the case of the remaining nine appellants we uphold their convictions under S. 304 read with S. 149, Indian Penal Code, and S. 147, Indian Penal Code, but we reduce the sentence passed on them to two years' rigorous imprisonment each.

10. Appeal partly allowed.