1964 Supreme(Cal) 87

HIGH COURT OF CALCUTTA
Niyogi, T. P. Mukherji
NEMAI ADAK - Appellant
Versus
STATE - Respondent
Criminal Appeal 66  Of  1961
Decided On : APRIL 17, 1964

The distinction between the concept of constructive liability underlying Sections 149 and 34 I. P. C. as stated above is not quite legal and proper as is also not the observation that the distinction between the two sections is often illusory. Section 34 limits Itself to the furthrance of the 'common intention' while Section 149 goes further and is more strongly worded than Section 34. The words 'common object' and 'common intention' are not synonymous. They involve a substantial difference and it this difference is sought to be eliminated, that would amount to a misdirection tending to misapplication of the law in this regard resulting in a wrong verdict.

Headnote:

T. P. MUKHERJI, J. ( 1 ) THESE seven appeals arise out of a trial held by the Additional Sessions Judge of Howrah. The appellants in these appeals are ten in number and they along with two others were put on trial before the learned Judge sitting with a jury on charges under Sections 147, 302/149 I. P. C. and on the same evidence they were separately tried by the learned judge himself for an offence under Section 3 of the Explosives Substances Act read with Section 34 of the Indian Penal Code.

Fact of the Case:

On 3-9-59 a general hartal was observed at Howrah in connection with what was termed as the 'food movement' sponsored by the local Price Increase and Famine Resistance Committee. The present case relates to an occurrence that took place that day on the Narasingha Dutt Road a little after mid-day when a party of 20 policemen including 2 Head Constables and 18 Constables were proceeding from the Khurut Town Outpost towards the Bantra P. S. on the north. The party came to the crossing of Kalachand Nundy lane and N. D. Road and found quite a number of people assembled on Kalachand Nundy Lane near the crossing. As the police party passed by the crossing this assembly headed by 20/25 people are stated to have thrown bombs at the police party and almost simultaneously the others are alleged to have attacked them with bombs, brickbats, etc. Many others joined these rioters and the police party was practically surrounded. There was great panic and confusion and the police men ran in fear of their lives, 13 of them went ahead and took shelter in the office of the R. W. A. C. nearby while 6 others took refuge in a factory belonging to P. W. 25 Madanmohan Bag which lies close to the crossing. One Constable ran through a lane, scaled the northern wall of a factory known as Bengal Machine and Tool Works and hid there.

Finding of the Court:

The net result of our findings in the case is that appellant Jatiram in Criminal Appeal No. 72 of 1961 and appellant Nemai Adak in Criminal Appeal No. 58 of 1961, who have been convicted only under Section 3 of the Explosive Substances Act should be acquitted and their conviction and sentence thereunder should be set aside. WE further find that appellant Subrata Chowdhury in Criminal Appeals Nos. 65 and 66 of 1961, who was convicted under Sections 147 and 326/149 I. P. C. as well as under Section 3 of the Explosive Substances Act should be acquitted and that the conviction under Section 3 of the Explosive Substances Act of appellant Hrishikesh Adah, Dilip and Methar in Criminal Appeal No, 71 of 1961 and of appellant Gopal in Criminal Appeal No. 72 of 1961, should also be set aside. The conviction of appellants Hrishikesh, Banka and Nirmal Dhara in Criminal Appeal No. 70 of 1961 under Section 302/34 I. P. C. and of appellant Dilip and Methar in the same appeal under Section 326/149 I. P. C. and the conviction of appellant Gopal in Criminal Appeal No. 91 of 1961 under the same section must also be set aside, but the conviction of appellants Hrishikesh, Banka, Dilip, Mether, Nirmal and Gopal under Section 147 I. P. C. , must stand.

Issues: None

Ratio Decidendi: The distinction between the concept of constructive liability underlying Sections 149 and 34 I. P. C. as stated above is not quite legal and proper as is also not the observation that the distinction between the two sections is often illusory. Section 34 limits Itself to the furthrance of the 'common intention' while Section 149 goes further and is more strongly worded than Section 34. The words 'common object' and 'common intention' are not synonymous. They involve a substantial difference and it this difference is sought to be eliminated, that would amount to a misdirection tending to misapplication of the law in this regard resulting in a wrong verdict.

Final Decision: Criminal Appeals Nos. 58, 66, 71 and 72 arc allowed. The conviction of the appellants concerned under Section 3 of the Explosive Substances Act and the sentence passed on them thereunder are set aside. The! appellants in Cr, Appeal 71 of 1961 as also In the other appeals above be released if they are not required to be detained in any other case. CRIMINAL Appeal No. 65 of 1961 is allowed and the conviction of Subrata Chowdhury under Sections 147 and 326/149 I. P. C. and the sentences passed thereunder are set aside. THE appeal of appellant Neniai Mondal in Criminal Appeal No. 91 of 1961 is allowed and his conviction under Sections 147 and 326/146 I. P. C. and the sentences passed thereunder are set aside. CRIMINAL Appeals Nos. 70 and 91 of 1961 are allowed in part and the conviction of the appellants concerned under Sections 326/149 I. P. C. of under Sections 302/34 I. P. C. are set aside as also the sentences passed under those sections and the appellants are acquitted of those charges. The conviction of the five appellants in Criminal Appeal No. 70 of 1961 under Section 147 I. P. C. as well as the sentence passed thereunder and the conviction of appellant Gopal alias Baidyanath in Criminal Appeal No. 91 of 1961 under Section 147 I. P. C. are affirmed. Appellant Gopal was a young boy of about 14 at the time of the occurrence. Considering his age, we find that the Binds of justice would be amply served by sentencing him to the period already undergone.