Arjun Kurmi and Others vs Emperor

Adami, J.—The petitioners, Ajodhya Kurmi, Chaha, Arjun Kurmi, Kirat Kurmi, Shibu Lal, Shamnarain Lal, and Shamlal Mahfco have been convicted u/s 148 and sentenced to six months'' rigorous imprisonment each; the rest of the petitioners have been sentenced to three months'' rigorous imprisonment u/s 147, I.P.C. Ajodhya and Shamlal Mahto have each been sentenced to six months'' rigorous imprisonment u/s 326 and Chaha has been sentenced to four months'' rigorous imprisonment u/s 3 and 4, I.P.C.

It appears that there are two adjoining villages, Sagarpur, inhabited by Gwalas, and, Sirsi chiefly inhabited by Kurmis. In Sirsi, near the pathway running from Sagarpur, there is a tank called the Sadhava Khata. According to the case brought out by the prosecution evidence, on Monday, the 6th April 1925, at about 10 a. m., Manu, Bhatu and others of village Sagarpur took their buffaloes to drink water at the Sadhava Khata. The buffaloes fouled the water and cowherds of Sirsi abused the Sagarpur men for this reason. There was an interchange of abuse and then Manu and his companions took back the cattle to Sagarpur. At about 11 o''clock a mob of 60 or 70 men came from Sirsi to Sagarpur to attack the Sagarpur men. The Sagarpur men opposed them and there was a fight between the two parties just south of the Sagarpur village. Manu was struck with a lathi and Ajodhya Mahto cut off, his thumb with a sword, while Chaha struck Manu with a sword on the left side of the chest.

After the fight, the Sirsi men drove away the buffaloes of Sagarpur and impounded them. The chaukidar, Bihari Dusadh, went to the Bakhitiarpur police station, which is eight miles away from Sagarpur, and informed the head constable there that, while he was reaping his crop, he saw a mob of about 100 men armed with lathis, garasas and swords going from Sirsi towards Sagarpur. He had made an inquiry and heard that many Sagarpur buffaloes had grazed the crops in Sirsi and that, therefore, the Sirsi men were going to Sagarpur to seize the cattle. The head constable went to Sagarpur and found Manu wounded. He took Manu''s statement, and Manu''s story was that, while the Sagarpur buffaloes were drinking at the Sadhawa Khata some of them strayed into the crops, and some of the Sisri men had come up and tried to seize the buffaloes, but the Sagarpur Gwalas managed to get their buffaloes home. Some time after that the petitioners and others had come in an armed mob to Sagarpur. This statement of Mann was treated as a first information, and it is to be noticed that the story of what had happened in the morning at the Sadhawa Khata differed from the story as to the cause of the attack by the Sirsi men given in the prosecution evidence. The writer head constable found Blood and the cut off thumb of Manu on the spot pointed out by the Sagarpur men as the scene of the fight.

The defence story was that on the 5th of April the Sagarpur cattle had grazed the fields of the Sirsi men and the Sirsi men had impounded them. The Sagarpur men were angry at this and came in a body on the 6th April with a large number of cattle and proceeded to graze the Sirsi lands. When the Sirsi men tried to take the cattle, in order to impound them, there was a fight and the Sagarpur people succeeded in rescuing their cattle. None of the Sirsi men were wounded. To back the story, the pound keeper was called, but the Courts below have found that his evidence was false and that the receipts were got up. As a matter of fact the Sirsi men had impounded the Sagarpur buffaloes on Monday, the 6th, and in the evening the Sagarpur people released them.

After considering the evidence the learned Sessions Judge has come to the finding that the prosecution evidence with regard to the cause of the fight, namely, the fouling of the water earlier in the morning, was not the true cause, and he believed that the information given by Manu that the Sagarpur buffaloes strayed from the tank and ate the crops of the Sirsi men was the real cause of the trouble.

With regard to the actual occurrence he found that the Sirsi men did come in a body to Sagarpur and attacked the Sagarpur men are the place pointed out by the prosecution witnesses. He held that the Sirsi men made an attempt to seize the Sagarpnr cattle at Sagarpur in order to impound them; he disbelieved the story of the defence that the occurrence took place at Sirsi. The learned Sessions Judge held that, though the prosecution case differed in the matter of the cause of action or occasion of the fight from the first information, he would not be justified in rejecting the whole case on that account. It was found by both the Courts that each one of the petitioners took part in the fight and that they have been rightly convicted.

Sir Ali Imam on behalf of the petitioners contends that the trial is vitiated by the fact that the provisions of Section 360 of the Criminal P.C. have not beers followed in the case of four of the witnesses. He points to the endorsement at the end of the depositions of each one of these witnesses. At the end of the deposition of Prosecution Witness No. 1 the endorsement is: "Read over and found correct," and it is signed by the witness who is an Assistant Surgeon. His cross-examination bears no endorsement except the signature of the witness. Prosecution Witness No. 11 is a Sub-Deputy Magistrate who was examined in English. At the end of his deposition the endorsement in his own writing is: "Read and) admit it to be correct," signed by the witness. There is also an endorsement by the peshkar: "Read out by the witness and admitted by him to be correct."

After that there is the further cross examination with the endorsement in the witness'' handwriting: "Read and! I admit it to be correct," signed by the witness. At the end of the examination-in-chief of the Prosecution Witness No. 12 there was an endorsement in his hand writing: "Read and found correct," signed by the witness; there was also the endorsement by the peshkar: "Read out by the witness and admitted by him to be correct." At the end of his cross-examination there is the endorsement by the peshkar "Read out by the witness and explained in Hindi and admitted to be correct." Similarly in the case of Prosecution Witness No. 13, a Sub-Inspector of Police, there is the endorsement: "Read and admitted to be correct, in his writing and signed by him, and also the endorsement: "Read out by the witness and admitted by him to be correct." At the end of his cross-examination there is a similar endorsement by him and by the peshkar.

Sir Ali Imam contends that these endorsements show that the direction given in Section 360 that the deposition should be read over to the witness has not been observed; and Section 360 being a mandatory section, the trial will be vitiated since-the evidence of these witnesses will be> inadmissible.

Now, this contention has not been raised in either of the Courts below and no objection was made in the trial Court. There is nothing before this Court to show that the provisions of Section 360 were not in fact carried out. The Code does not require that an endorsement or certificate should be given, and it is impossible to say whether, though the endorsements take the form they do, the depositions were not read over to the witnesses in the presence of the accused. It is not contended that the reading of the depositions was not in the pretense of the accused, but the rulings of the Calcutta High Court have been relied on and it is urged that the depositions were not read out or over within the hearing of the accused. While the petition, which is supported by an affidavit, states that the depositions were not read out, the learned Magistrate in his explanation states that.

the evidence of all the witnesses was duly recorded and the provisions of Section 360, Criminal P.C., wore fully complied with. The depositions were read over in the presence of the accused and their lawyers and were duly interpreted to the witnesses in the Hindi language; no objection was taken at the time by any accused as to his not being able to follow or understand the evidence of any witness.

As against the affidavit I have the Statement of the Magistrate and there is no reason to disbelieve the latter. If an objection is taken on the ground that trial provisions of Section 360 have not been observed that objection should be taken at once after there has been a neglect of the provisions of the law. It is useless to come up in revision and put forward this point for the first time, for the Court has nothing go upon. Section 360, does not lay down that the deposition should be read over to the witness within the hearing of the accused, and in fact Sub-section (3) to Section 360 would seem to point to the fact that the purpose of the section was to enable the witness to a feguard himself, for that Sub-section makes no mention about a case where the accused does not understand the language in which the deposition is taken down. Had it been the object of the Legislature to ensure that the accused should understand and hear the evidence as it is read out, they would surely have made provision in Sub-section (3) for the interpretation of the evidence, so that the accused might understand it. There is no doubt, that, if the accused or his pleader is doubtful as to the manner in which statements of a witness have been recorded or as to any point in the deposition, they would have a right to ask that the deposition should be read over to them, so that they can satisfy themselves as to what has bean actually recorded; but that demand should be made at once. Considering that this contention has not been raised until this stage, I am of opinion that it cannot be made a ground for interference in revision.

With regard to the merits, Sir Ali Imam urges that, as the prosecution case has not been believed with regard to the occasion and cause of the fight, the Courts were not justified in basing their conviction on the evidence as to what happened afterwards. The Courts have found as a fact that the fight occurred at the time and at the place deposed to by the prosecution witnesses. The difference in the story with regard to the cause and the occasion of the fight is hot really very great, the only difference being whether the quarrel was about the fouling of the water or about the straying of the cattle from the water to the fields of the Sirsi men. The prosecution witnesses were evidently eager to show that there was no blame on their side. The actual occurrence has been fully proved by the evidence given by the prosecution, and on that evidence I am satisfied that the Courts below ware justified in finding that the petitioners committed an offence.

The last point taken is that the statement made by Manu was not the first information and was inadmissible in evidence, seeing that previously the chaukidar Bihari Dasadh, had given information at the thana. In my opinion the in, formation given by Bihari Dusadh at the thana cannot be taken to be a first information. He merely stated that he saw a mob of men armed, with lathis, garasas and swords going from Sirsi towards Sagarpur; he did not give any information of an offence having been committed. The reason for their going he learnt by hearsay, and, so far as he knew, when he gave information no crime had yet been committed. The head constable to whom he made to statement was not empowered to investigate the offence, if committed, and, in my opinion, he Courts below were justified in treating the statement of Manu as the find information. In any case, even if Manu''s statement were omitted and treated as inadmissible, there would be very little difference, for the prosecution case was satisfactorily proved by the prosecution witnesses.

It is urged that Shiblal and Sham Narayan are Kayesths and would not join in the riot but the Courts below have found as a fact that these two men were present, and that is sufficient.

I can see no reason to interfere, and reject the application. The petitioners will surrender to their bail to serve out the remainder of their sentences.