Bhabataron Mahto and Others vs Emperor

Sen, J.—This is an application in revision by 11 accused who were tried and convicted u/s 147 of the Indian Penal Code. In addition to the order of conviction u/s 147 passed against all the 11 Petitioners, Petitioner No. 11 has also been convicted u/s 325 of the Indian Penal Code and Petitioners ''Nos. 1, 4, 5 and 6 u/s 325 read with Section 34 of the Indian Penal Code. The following are the undisputed facts of the case: In July 1914 two brothers, Dinu and Panu Bagal, executed a simple mortgage of their three-annas share in Chitabdih chak in favour of Bishto, father of Petitioner No. 1. In 1918 Dinu and Panu gave darmokarrari lease of certain plots of land in the village to four brothers, Sujan, Nitai, Jadu and Ghanu, of the prosecution party; while some other plots were given in darmokarrari to Narsingh, Benimadhub, Panchanan and Shama Charan. Bishto Charan sued on his mortgage aforesaid making Dinu and Panu the lessees of 1918, parties to the suit. Usual mortgage decree was passed: and in execution of the decree the decree holder purchased the property; On the 4th July 1913, the decree-holder purchaser, the father of Petitioner No. 1, obtained delivery of possession of the property through Court under Order 21, Rule 95 of the Code of Civil Procedure. The case of the prosecution was that on the 30th June, 1924 the Petitioners with others went to the disputed land and ploughed it up and destroyed the paddy seedlings sowed by the four brothers Sujan, Nitai, Jadu and Ghanu; that a quarrel and a fight ensued in which the complainants were chased far out of the plot and Sujan up to a jor tree and they were there belaboured with the result that Ghanu sustained a fractured leg and Sujan a fractured forearm. The defence was that the petitioners were in possession of the land in dispute. It was the complainants party that trespassed and upon that the petitioners remonstrated, upon which a quarrel arose and the petitioners felt bound in self-defence to resist the invasion of their rights by the prosecution party. The first Court held that the mortgage sale having passed the unascertained 3 annas share of the mortgagor did not affect the raiyati possession "in bhag dakhal" as they had occupancy rights therein. Hence the complainants had the right to be on the land, and they sowed paddy thinking that their possession was not affected. He also found that the story of chase was untrue and that it was subsequently introduced to avoid the consequence of law as to right of private defence of property arising from the fact of delivery of possession through the Court. The learned Deputy Magistrate convicted all the accused u/s 147 of the Indian Penal Code and sentenced them to six months rigorous imprisonment except Nitai, Petitioner No. 8, who was fined Rs. 200. He also convicted Petitioners Nos. 1, 4, 5 and 6 u/s 325 read with Section 149 and sentenced them to six months'' rigorous imprisonment. He further convicted Iswar, Petitioner No. 11, u/s 325, for giving the lathi blow to Ghanu and sentenced him to six months'' rigorous imprisonment, the sentences to run concurrently.

On appeal the learned Sessions Judge of Purulia thought that the occupancy rights of the four brothers had not been established, and he came to the conclusion that the auction-purchaser obtained possession from the Court; but the parties not being clear as to their rights, the Bagals continued to be in possession and they cultivated the land in 1923 and harvested the crop. He also found as a fact that the Bagals were the residents of the village; that they remained in actual possession in spite of the delivery of possession to the auction-purchaser upto the date of Occurrence under consideration, and that in the circumstances set out by the prosecution, the appellants came in force in order to oust the Bagals from possession and themselves re-take possession. He also found that "the details of the prosecution story are hardly challenged at all and are abundantly proved." Upon this altered finding as to possession, the learned Sessions Judge then proceeded to reconsider the sentences. He reduced the sentence passed against the accused u/s 147 to a fine of Rs. 20 each, in default to one month''s rigorous imprisonment, except against Jitu, Petitioner No. 4, who injured Bhiku Bagalin with lathi and who was therefore sentenced to one month''s rigorous imprisonment. As regards Petitioners Nos. 1, 4, 5 and 6, Petitioner No. 1 was further fined Rs. 50 and Petitioners Nos. 4, 5 and 6 sentenced to two months'' rigorous imprisonment, u/s 325 read with Section 34. Petitioner No. 11 was convicted u/s 325 for having fractured Ghanu''s leg and sentenced to two months'' rigorous imprisonment. So far as the conviction and sentence u/s 147 is concerned, 1 think that on the findings of the two Courts it is not possible for this Court to interfere in revision.

The learned vakil for the petitioners at first urged that the sentence of one month''s rigorous imprisonment on Petitioner No. 4 should be set aside as there was no such person as Bhiku Bagalin on the record, but it being pointed out to him that evidently it was a mistake for Bidhu Bagalin he did not press that point. As regards the conviction of Petitioner No. 11 u/s 325, I feel that this is concluded by findings of facts. With reference to the conviction and sentence u/s 325 read with Section 34, it is urged that the conviction u/s 325 read with Section 34 is illegal and ultra vires and the trial Court having convicted u/s 325 read with Section 149, the appeal Court was not entitled to convict the Petitioners Nos. 1, 4, 5 and 6 u/s 325 read with Section 34 without coming to a definite finding as to common intention and that in any event separate sentences passed under Sections 147 and 325 read With Section 34 are illegal. Now it is not easy to make out under what circumstances the learned Sessions Judge convicted the Petitioners Nos. 1, 4, 5 and 6 under Sections 325 read with Section 34 of the Indian Penal Code. If it is not possible to bring home the guilt to the accused u/s 325 read with Section 149 of the Indian Penal Code one would think that a fortiori it would be more difficult to bring borne the guilt with the aid of Section 34 of the Indian Penal Code. I find from his judgment that he observes that "the appellants came prepared for a marpit. They became an unlawful assembly when they all started to chase the mildly protesting Bagals with the common object of assaulting them." Now, the common object suggested in the passage above quoted is different from the common object charged, viz., that of committing mischief and by criminal force or show of criminal force, to take possession of the land in dispute. It has been laid down in various judicial pronouncements that in order to bring the accused within the scope of Section 34, it is necessary to come to a definite finding that the accused were acting in furtherance of the common intention of all. The common object charged in this case being quite different, and it being found that conviction would not follow u/s 325 read with Section 149 of the Indian Penal Code, I think a conviction u/s 325 read with Section 34 would be scarcely sustainable without a clear finding that the accused Nos. 1, 4, 5 and 6 were acting in furtherance of a common intention.

In the circumstances, I set aside the order of the learned Sessions Judge so far as it relates to the conviction and sentence of petitioners Nos. 1, 4, 5 and 6 u/s 325 of the Indian Penal Code read with Section 34.