Adalat Sah and Others vs Emperor

Shearer, J.—This is an appaal by three men who have been convicted by the learned Sessions Judge of Saran of rioting. One of them, Adalat Sab, has, under this charge, been sentenced to undergo rigorous imprison ment for three years, and the other two, Baran Sah and Shama Sab, have been sentenced to undergo rigorous imprisonment for two years each. Adalat Sah has also been convicted u/s 302, Penal Code, and has been sentenced to transportation for life. Baran Sah and Shama Sah have been con victed u/s 326 read with Section 149, Penal Code, and have been sentenced to undergo rigorous imprisonment for five years each. The sentences are in each case to run con currently. The riot in which these men are said to have been concerned took place, on 11th April 1944, and in it one Asharfi Teli was killed. Asharfi Teli died in consequence of a blow with a bhala which severed the carotid artery and caused almost instantaneous death. He was not apparently struck any other blow. It is admitted this blow was struck by the appellant Adalat Sah. Two relations of Asharfi Teli, namely, Jamuna Sah and Seth Sah, were each struck a single blow, Jamuna Sah a blow with a bhala by the appellant Baran, and Seth Sah a blow with a pharsa by the appellant Shama. The appellants, and also another man Bitan Sah, who is a relation of theirs-and who for some reason car other was not committed to the Court of Session all sustained injuries. Each of them was struck several blows, apparently with bha> s or similar weapons.

The riot took place over an attempt on the part of Asharfi Teli and his relations to plough a small parcel of land in Bhabnauli, the village to which they belong. Asharfi Sah and some other men had, on 17th February 1944 taken a conveyance of this and other land from the daughters of one Bhikhari Sah. Bhikhari Sah died some years ago, leaving six daughters and no son. His wife would seem to have predeceased him. At all events, those of the daughters who were still unmarried were brought up by their grand-mother Mt. Sanichari. In 1936 Mt. Sanichari executed a zarposhgi deed in favour of her son-in-law, Sheonandan Sah. The recital contained in this zarpeshgi deed shows, or purports to show, that she required the money she borrowed partly in order to pay off certain debts which her husband had incurred and partly also in order to marry one of her daughters. Sheo-nandan Sah does not belong to Bhabnauli, and apparently Mt. Sanichari remained in possession of the land. The appellant, Adalat Sah, is a relation of hers and would seem to have looked after the cultivation of the land for her. The defence put into the witness-box one Abdul Hai Khan, who told a somewhat curious story about a panchait which had been convened in the middle of 1943. Besides the zarpeshgi in favour of Sheonandan Sah, Mt. Sanichari had executed another zarpeshgi deed and also a sale deed. Abdul Hai Khan said that as a result of the panchait an arrangement was come to between the various mortgagees and purchasers under which the latter surrendered the land, not to Mt. Sanichari, but to the appellant Adalat Sah. Adalat Sah, it was said, had made the necessary payments to the purchasers and the mortgagees. The oral evidence adduced on this point was, in my opinion, of the most unsatisfactory kind. I agree with the learned Sessions Judge in thinking that for some years prior to the occurrence Adalat Sah had been in possession of the land, in the sense that he had cultivated it either for Mt. Sanichari or for her son-in-law Sheonandan Sah. But it is, I think, impossible to say that his possession was juridical possession and that he was on the land either as an assignee of a mortgagee or as an under-raiyat or tenant. In this situation, I very much doubt if a suit instituted by him u/s 9, Specific Relief Act, would have succeeded. The question, however, to which we have to address ourselves, is not whether Adalat Sah had, immediately prior to the occurrence, been in possession of the land, but whether Asharfi Sah and his relations in going to the land committed a criminal trespass. Now, it has to be remembered that, in the first chace, Asharfi Sah was undoubtedly the owner of the land, having taken a conveyance of it from the daughters of Bhikhari Sah, on whom, on Bhikhari''s death, the land devolved, and that, in the second place, when they went to the land, not only were there no crops standing on it but the land was vacant. Adalat Sah and his relations were not on the land then. They waited until Asharfi Sah and his relations had gono to. plough it, and, when they had been ploughing it for some little time, they went there armed and attempted to drive them out of it. In these circumstances, it seems to me quite impossible to say that Asharfi Sah and his companions were guilty of criminal trespass and that in consequence the appellants were justified in going to the land and attempting to drive, them off it by the right of private defence. Mr. S. Anwar Ahmad, for the appellants, strongly relied on T. H. Bird v. Emperor AIR 1934 Pat. 158. It is, however, to be observed that in that ease the persons who were convicted had entered on certain land and forcibly removed and assaulted the person who was in possession of it, and who, at the time of their entry, was actually engaged in ploughing it. Khaja Mahamad Noor J. in that case at p. 286 of the report observed:

The Code speaks of possession and not of title. It may be in certain cases that the man with whom the title of the property is vested enters upon that property only with the intention of taking possession of it. So far he may be committing no offence. But if he has the intention of taking possession by intimidating the man in possession he is amenable to punishment.

It seems to me perfectly clear that in going to the land, as they did, Asharfi Sah and bis relations intended merely to take possession of the land. No doubt they took weapons with them; but as neither Adalat Sah nor any one else was on the land at the time, it must be assumed that the reason why they took these weapons was to enable them to defend themselves if they were attacked. Being the owners of the land they were undoubtedly entitled to enter on it in the manner that they did. When they remained on the land after the appellants came to the land and called on them to vacate it, they may have attempted to overawe or intimidate them; but it cannot be said that they remained on the land unlawfully, in which case only could they be guilty of criminal trespass. That, I think, is clear from the language used in Section 441, Penal Code. In my opinion, Asharfi Sah and the men with him in going to the land or in remaining there did not commit a criminal trespass. That being so, it cannot be said that the appellants and the men with them were justified by the right of private defence of property in doing what they did. The convictions for rioting must, therefore, be maintained. The learned Sessions Judge dealt with the case on the assumption that both parties had deliberately gone out armed in order to engage in a regular fight over the land, and observed that no question of the right of private defence could possibly arise. It seems to me, however, very doubtful if Kabiruddin v. Emperor (08) 85 Cal. 368 and similar decisions of this Court are really in point. Comparatively, few men took part in this disturbance, and these men were all men who were directly interested in the land. It is not as if each of the two claimants to the land collected bodies of men and that these two bodies of men proceeded to the land determined to engage in a kind of pitched battle over it, knowing that in this battle some man or men on either side might be killed, and regardless and reckless of the consequences. If anything of this kind had actually happened, I should, of course, have had no hesitation in maintaining the conviction of Adalat Sah for murder. But it is, I think, quite clear that this is not at all what happened. Moreover, as the learned Sessions Judge has pointed out, the witnesses for the prosecution did not disclose the whole truth; more particularly, they failed to explain how it was that the appellants and Bitan Sah as well as themselves had sustained injuries. The conduct of the witnesses for the prosecution in lying on this point was most reprehensible, and the learned Sessions Judge might well, I think, have considered whether they did not deserve to be prosecuted for perjury. In this unsatisfactory state of the evidence, the case ought, I think, to be dealt with on the assumption that when the appellants got to the land some incident occurred which has not been disclosed and which led to a fight. There is evidence that Asharfi Sah was armed with a barchhi, and if, Sheonandan Sah, who was armed with a bhala, and he fought with each other, it is difficult to say that in killing him as he did Adalat Sah was guilty of murder. The case would in that view of the matter, come under the fourth exception to Section 300, Penal Code. I would therefore alter the conviction of Adalat Sah from one u/s 302 to one u/s 304, Penal Code, and for the sentence of transportation for life which has been imposed on him would substitute a sentence of rigorous imprisonment for seven years.

The learned Sessions Judge in convicting the remaining appellants u/s 326, read with Section 149, Penal Code, presumably relied on on the decision of this Court in Bhagwat Singh v. Emperor A. I. R. 1936 Pat. 481. It seems to me very dangerous to assume that each of these appellants must have known that someone of thorn was likely to cause grievous hurt merely because they were all of them armed with deadly weapons. As I have just said, the case is not one in which a large body of men went out to fight reckless" of any consequence which might ensue. The true construction of Section 149, Penal Code, is, in my opinion, that laid down in the well known, case in 20 W. R. Cr. 5 On the construction there put on the section and in the view which must, I think, be taken of this case, namely, that in consequence of some incident which has not been disclosed Asharfi Sah and the appellant Adalat Sah engaged in a fight, it seems to me impossible to make the remaining appellants in any way constructively liable for Asharfi Sah''s death. I would therefore set aside the convictions and sentences u/s 326 read with Section 149, Penal Code. The convictions for rioting will, as I have already said, stand. The sentences imposed on. the appellant Adalat Sah will also run concurrently. Subject to these modifications, the appeal is dismissed.

Varma, J.

I agree. I would like to add that the decision in Bhagwat Singh v. Emperor A. I. R. 1936 Pat. 481 relied upon the decision in Queen v. Sabid Ali (73) 20 W.R. Cri. 5. In the course of the judgment Rowland J. observed:

If Section 149 applies it must be by virtue of the second part, dealing with an offence, ''such as the, members of that assembly knew to be likely, to be committed in prosecution of that object.'' I am reading the section in the light of the observations in the Full Bench case in Queen v. Sabid Ali (73) 20 W.R. Cri. 5 and I take the last five words quoted to mean, in this context ''in proseouting that object,'' or, ''in the course of prosecuting that object.'' In construing the section a. question arises whether a member of the assembly is guilty necessarily of the same offence as the principal offender or whether it, is to be determined with reference to the facts of the case, what offence the members must have known to be likely to be committed and whether if such offence is a minor-offence they should be convicted accordingly... In the judgment of Phear J., in the Full Bench decision in Queen v. Sabid Ali (73) 20 W.R. Cr. 5 above cited, it is observed that the effect of Section 149 may be different in the case of different members of the same assembly.

It was on the facts of that particular case, Bhagwat Singh v. Emperor AIR 1936 Pat. 481, that it was held that the members of the unlawful assembly other than the one convicted of the substantive offences were guilty u/s 326/149.