Aklu Mian and Others vs Emperor

Jwala Prasad, J.—The petitioners, who are nine in number, have ''been convicted u/s 147, I.P.C.: petitioners 1 to 3, Aklu, Bakar and Amir, have been sentenced to six months'' rigorous imprisonment each and the remaining petitioners to three months'' rigorous imprisonment each. The first three petitioners were further directed u/s 106, Criminal P.C., to execute bonds of Rs. 200 each with one surety for keeping the peace for one year on their release from jail.

The occurrence is said to have taken place in connexion with a dispute with respect to 10 1/2 bighas of land in mauza Dimuhani which belonged to one Shankar Manjhi. In 1923 he executed a sale-deed in respect of the land in favour of one Wali Muhammad for a consideration of Rs. 398 out of which Rs. 299-4-0 was to be paid to discharge the debt of Aklu under a hand-note executed by Shankar Manjhi. Wali Muhammad is said to have given a lease of this land to Bagai Manjhi, brother of Shankar Manjhi on 15th Asrah 1331 (1924). This led to a dispute between Wali Muhammad and Bagai for possession and a proceeding u/s 145, Criminal P.C., was instituted. This ended in a compromise between the parties and the petition (Ex. 15) was filed before the Magistrate in which Bagai Manjhi gave up his land and admitted the possession of Wali Muhammad, the first party.

The petition is dated 24th June 1924. On 6th May 1927, Wali Muhammad executed a usufructuary mortgage in respect of the land in question in favour of the complainant Bhatu for Rs. 200. A week after 13th June 1927 Wali Muhammad executed a kobala in favour of Bhatu selling the land in dispute to Bhatu for Rs. 400. On 15th May Bhatu obtained a hookumnamah recognizing the transfer by Wali Muhammad in his favour and mutating his name in his sharista in respect of the land in question. From these documents Bhatu claims to be in possession of the land in dispute and to have sown on it jenera and to have built & hut thereon. His case is that on the day of occurrence, 10th June 1927, he was ploughing the paddy land when a mob of 25 persons, including the petitioners, came with lathis and dantas and began to throw brickbats at the hut. A stone struck his left ear and he fell down. He could not say who threw the stone. The other persons also began to beat him. His mother fled away and his aunt had a brickbat injury. He got up and was trying to go out. The petitioners Bakar Ali and Amir-Ali, at the orders of Aklu, set fire- to his hut with matches and the but was burnt. Bhatu could not go out. Thereupon his brother and others brought him out of the hut. In the meantime the police arrived and Bhakar Ali and his men fled away. At the time of running away he learnt from his mother that Bakar Ali had snatched away a hasuli and a mathia.

The case of the defence is that the land in dispute has been in their possession under a sale-deed, dated 1st February 1927, executed by Shankar Manjhi in his favour. They further say that the sale-deed executed in favour of Wali Muhammad in 1923, by Shankar was not given effect to inasmuch as the consideration was not paid by Wali Muhammad. Therefore Wali Muhammad did not acquire any title in the property which he could pass to the complainant either by the usufructuary mortgage of 6th May 1927 or the kobala dated 13th January.

In support of their contention the petitioners filed in the counter-case certain documents in proof of their possession. These documents were, (1) the original sale-deed executed by Shankar Manjhi in favour of Bakar Ali; (2) the hand-note executed be Shankar Majhi in favour of Aklu Mian for the payment of which Shankar Manjhi executed the kobala in favour of Wali Muhammad; and (3) certain rent receipts.

The defence version of the occurrence is as stated in the first information (Ex. 3) lodged before the Sub-Inspector on the spot. It is stated by the accused that on the date of occurrence, 10th June, he was at village Nagari at some distance from the village Dimuhani where the land in dispute is situate. There he learnt from the servant of Bihari Kahar (D.W. No. 3) that the complainant Bhatu had gone to Dimuhani with 200 men, apparently with the object of taking forcible possession of the land in dispute. Bakar Ali then went with 15 or 20 men to Dimuhani and on finding Bhatu''s crowd got into his house which the other side began to pelt, until the arrival of the police on the scene. The petitioners deny setting fire to Bhatu''s hut on the land and say that Bhatu had only put up the hut on that day and Had himself set fire to it.

The Courts below have held that the possession was with the complainant and the accused went there in a mob with the common object of assaulting Bhatu. The Courts below disbelieved the prosecution case that the hut was in existence a month before the occurrence. They did not accept apparently the case of arson. They also did not accept the charge laid by the prosecution against the petitioners 1 to 3 u/s 326, I.P.C. They were acquitted of these charges and the petitioners accordingly have been convicted of rioting with the common object of assaulting the complainant Bhatu.

As to the finding of possession Mr. Varma attacks it upon the ground that the material document filed by the defence in the counter-case was illegally shut out of consideration by the Courts below upon the technical ground that the documents were not accepted in the case. The two cases proceeded simultaneously and the arguments were also heard together. There are indications in the orders of the trial Court that it was intended that the two cases would go on side by side so much so that if one case was adjourned the other one was also adjourned on the same date. The petitioner''s party represented the prosecution in the counter-case lodged by them until the rejection of the document with respect to the land in dispute in that case. They could not file them at the same time in the present case. The learned Magistrate knew the case of both parties inasmuch as he was trying them together. He know the importance and the bearing of the accused''s documents on the question of possession filed in the counter case. Those documents to my mind should have been considered in the present case by the Courts below.

One of the documents was the hand-note executed by Shankar Manjhi, the original bolder of the land in favour of the petitioner Aklu Mia. That hand-note was prior to the sale by Shankar in favour of Wali Muhammad and in fact the sale to Wali Muhammad was with the object of paying off this debt. The fact that the hand-note was not produced by the complainant in this case throws a doubt as to whether the consideration of the sale-deed in favour of Wali Muhammad was paid or not. Petitioner 1, Aklu, was still in the possession of the hand-note, for he produced it in the counter-case. Therefore, the debt due under the hand-note was not paid off.

No practical explanation has been given why the usufructuary mortgage was executed on 6th January by Wali Muhammad and only a week after the sale-deed (Ex. 13) (1) dated 13th January 1927 was executed in his favour. Neither the copy of the order-sheet in the 145 case nor the order of the Magistrate passed in that case has been produced. The petition of compromise filed in that case between Wali Muhammad and Bogai is no evidence against the petitioners who are not parties to that proceeding. The statement of Bogai contained in that petition cannot be used against the petitioners and the document is only relevant for the statement contained therein of the parties. It cannot take the place of the order of the Magistrate passed in that case. The hookumnamah of 15th May 1927 itself was not direct evidence of possession. It only shows that the landlord has recognized the purchase of complainant Bhatu. Both parties have got receipts. The evidence of title and possession in this case is not conclusive.

The Courts below have not taken into consideration the aforesaid facts and the omission of the prosecution to file the hand-note executed by Shankar Manjhi in favour of the petitioner Aklu. The decision of the Court below on the question of possession is, therefore, not conclusive and has not been arrived at upon full appreciation of the documents in the record and is vitiated on account of the document of the accused not having been taken into consideration. The prosecution version of the occurrence is belied by the Sub-Inspector who arrived on the scene of occurrence when it was going on. The chaukidar lodged a saneha at the thana at 4-30 p.m. In it he stated that 30 or 40 men on each side had collected together with lathis to fight over the possession of the land in dispute. The Sub-Inspector hurried to the place of occurrence and found that a number of men had collected near the house of Bakar Ali fighting with lathis and some throwing brickbats at Bakar''s house. The Sub-Inspector arrested nine men outside and 29 men inside the house of Bakar Ali.

While he was arresting these people he learnt that Bhatu had got burnt, went to the field and found a hut in flame''s and Bhatu lying in a bed with burns on his body and his grandmother was also lying injured and burnt. He recorded Bhatu''s statement and drew up a first information report on his statement. He had thus both the versions of the occurrence with him which he got in the course of the occurrence. His statement as to what he saw on the spot is of great importance. He arrived on the spot at 5 p.m. and he learnt from the chaukidar half an hour before that men on both sides had collected. On the other hand the case of the prosecution is that while the complainant was cooking rice the petitioners in a mob of 25 men were said to have suddenly attacked his hut and began to pelt stones. The chaukidar''s statement that men on both sides collected finds support from what the Sub-Inspector saw on the spot. The prosecution has concealed the origin of the occurrence. The complainant has introduced serious false elements in the case.

The Courts below have held that he had no hut on the spot erected a month before. The defence case is that the hut was not in existence and that the complainant put it up that very day and burnt it. The Sub-Inspector saw no signs of outrage done to any article in the hut. It had no sign of being in use for a month. The Courts below have accepted the defence case that the hut came into existence that very day. The learned Sessions Judge is fully alive to the importance of the evidence of the Sub-Inspector in the case and to the fact that the Sub-Inspector''s evidence is entirely in favour of the defence and against the case of the prosecution. He has rejected the evidence of the Sub-Inspector. I am not satisfied that the Courts below should have rejected the Sub-Inspector''s evidence. His evidence is supported by the information lodged by the chaukidar half an hour before he arrived on the spot. I do not see any good ground for disbelieving the evidence of the Sub-Inspector. If that evidence is believed, the. prosecution case cannot be accepted. It may be that the defence is not in a position to account for the few burns on the person of Bhatu; but the charge stated is not established. The charge is that the common object of the assembly was to assault. Bhatu does not lay such a charge against the accused. In his first information he charges them with the common object of destroying the hut in question. He says that they collected and began to aim lathis and dantas at the hut and to pelt stones at it. He was not given any serious beating by the, petitioners and the few burns on his body are not due to an attempt to beat him but on account of the hut having been set fire to. The common object in the circumstances of the case, could not be to, assault, the complainant but to set fire to the house.

There are cases where an unlawful assembly suddenly changes its common object from one of taking possession of the property to the common object of committing assault upon the complainant. But this is not a case of that nature. Here the common object from the beginning to the end was to destroy the hut. They came and began to beat the hut with lathis and they finished the occurrence by setting fire to the hut. Beating the complainant in this case was not the principal or the sole object of the assembly. No doubt, in some cases, it is said when there is a dispute and uncertainty as to possession of the parties it is better to frame a charge of rioting with the common object of assault; but in all cases the principal and the prominent common object should form the subject of the charge and not the incidental happenings.

For these reasons I hold that the charge laid in the case had not been established against the petitioners. I, therefore, set aside the conviction and the sentence passed upon the petitioners and direct that they be set at liberty.