Avanashi Goundan and Others vs Palani Madari

Pandrang Row, J.—This is a petition to revise the judgment of the Additional Sessions Judge of Coimbatore dated the 14th day of March,

1938, dismissing the appeal preferred by the petitioners from their convictions and sentences under various sections of the Penal Code. The

charges framed against the petitioners who are nine in number and two others were briefly as follows: - that they were members of an unlawful

assembly on the 14th September, 1937, at Chinna Puthur and did, in prosecution of the common object of such assembly, namely, to assault and

cause hurt to the chucklers of the village, commit the offence of rioting and that in prosecution of the common object certain individual members of

that assembly committed certain individual acts and finally that all the accused eleven in number have thus u/s 149 of the Indian Penal Code

committed offences punishable under Sections 148, 352, 323, 324 and 325 of the Indian Penal Code. It is clear that the charge which the

petitioners were called upon to meet in the trial Court was that they were members of an unlawful assembly which had a common unlawful object

and that as in the prosecution of that common object, various acts were committed by different individuals among the members of that assembly, all

of them were liable by virtue of Section 149, Indian Penal Code, in respect of all the acts committed by the various individuals. It is thus clear that

the head and front of the offences charged against them was the rioting or rather the forming of an unlawful assembly with an unlawful common

object and the doing of various acts in prosecution of that common object. The trial Court itself found that the common object had not been

established and therefore the petitioners were acquitted of the offence punishable u/s 148, Indian Penal Code and they have been convicted only in

respect of individual acts said to have been committed by them which are alleged to constitute offences under various sections of the Penal Code

such as Sections 352, 323, 324 and 325. Once it is found'' that a common object has not been established, it must be held that the acts which

were alleged to constitute these offences had nothing in common between them, and there would be no justification for a joint trial being held in

respect of such acts as against different accused. The acts were committed not only by different accused but against different persons, and it would

appear, in different places - in all probability in the houses of the various persons who were injured. There was thus no justification for the joint trial

once it was found that the common unlawful object had not been established, and I have no doubt that apart from the improper character of the

joint trial, the petitioners must have been really prejudiced in their defence by the joint trial; they must throughout have been concentrating their

efforts on meeting the prosecution case that there was an unlawful assembly with an unlawful common object and they could not have anticipated

that even if they succeeded in showing that the prosecution had not established the substance of their case, namely, that there was an unlawful

assembly with an unlawful common object, nevertheless they would be convicted in respect of individual acts in the same trial. I am therefore of

opinion that the convictions and sentences passed on the petitioners after a trial which was not held in accordance with law cannot be sustained.

They are therefore set aside and there must be separate retrials of the petitioners in respect of their alleged individual acts before a competent

Magistrate to be selected by the District Magistrate. The fines, if paid, should be refunded to the petitioners from whom they have been collected.