Decided on December 02,1955

STATE Respondents


- (1.) Criminal Appeals 139, 140, 141, 142, 143 and 144 are respectively by accused 1 to 6 in Sessions Case No. 52 of 1955 on the file of the Quilon Sessions Court. The six accused persons were tried by the learned Sessions Judge with the aid of four assessors for committing the murder of one Madhusoodanan Pillai in the evening of 15.1.1954. Accepting the unanimous opinion of the assessors the learned Judge found accused 1 guilty of the offences punishable under S.148 and 302 I.P.C. and sentenced him to death under S.302. The remaining accused - accused 2 to 6 - have been found guilty under S.148, 149, 341 and 302 read with S.34 and 109 I.P.C. and each of them has been sentenced to transportation for life under S.302 read with S.34 and 109 I.P.C. While the accused persons have preferred separate appeals against their convictions and sentences, the learned Judge has submitted the records of the case to this court under S.374, Criminal Procedure Code for confirmation of the death penalty against accused 1.
(2.) The appellants were represented before us by Mr. Mallur Govinda Pillai. Learned counsel for the appellants and Mr. C. M. Kuruvilla, the learned Public Prosecutor, argued the case elaborately before us, both on questions of fact and on questions of law. Mr. Govinda Pillai subjected the evidence to a very critical examination and pointed out several imperfections in the judgment and in the charges to which the appellants were called upon to plead at the trial. We have given anxious thought to these arguments and have finally come to the conclusion that when the appellants have been convicted of the offence of murder and one of them sentenced to the extreme penalty of the law and the others to transportation for life, we will not be doing the right thing to proceed to judgment on the merits overlooking the imperfections pointed out treating them to be mere irregularities cured by the curative provisions of the Criminal Procedure Code and stating that no prejudice is shown to have been caused to the appellants on account of those irregularities. However, while we do not seek to condone a defective trial, in a case like the present one, we do not think it proper to let off the alleged offenders without a proper retrial being held to establish their guilt or innocence as the case may be. Public interests and vindication of justice demand it. In the circumstances we feel constrained to quash the convictions and sentences passed by the learned Judge and direct a retrial of the case. In order that either side should not be prejudiced at the retrial we shall refrain from discussing the evidence or pronouncing any opinion about it.
(3.) The first and foremost defect we would advert to is that while it was alleged that there was an unlawful assembly formed with the common object of causing the death of Madhusoodanan Pillai, there is no finding as to whether the acts done were committed for the prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, or even as to when the assembly came into being. Para.17 and 18 of the judgment come very near discussing these aspects, but there is no finding recorded by the learned Judge justifying his calling to aid the provisions of the Penal Code relating to constructive liability of the members of an unlawful assembly. It is a common place of the law relating to unlawful assembly and rioting that the common object of an unlawful assembly must be definitely found and not merely left for conjecture or inference from other facts found in the judgment - vide Maynes Criminal Law of India (4th Edition), Part II, page 309. In Behari Mahtom v. Queen Empress, ILR 1885 (XI) Calcutta 106 it has been stated:- An accused person is entitled to know with certainty and accuracy the exact value of the charge brought against him. Unless he has this knowledge he must be seriously prejudiced in his defence. This is true in all cases, but it is more especially true in cases where it is sought to implicate an accused person for acts not committed by himself, but by others with whom he was in company. This case has been followed in subsequent cases, notably in cases like Sabir v. Queen Empress, ILR 1865 XXII Calcutta 276 and Poresh Nath Sircar v. Emperor, ILR 1906 (XXXIII) Calcutta 295. In Allah Dad v. Emperor, AIR 1924 Lahore 667 the decision in Sabir v. Queen Empress has been followed.;

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