Bhagawat Jha and Others vs Emperor

Kulwant Sahay, J.—This is an application in revision on behalf of 13 persons who have been convicted u/s 147 of the Indian Penal Code and some of whom have also been convicted under Sections 323 and 325 of the Penal Code and sentenced to various terms of imprisonment. The petitioner No. 1 has been convicted under Sections 147, 323 and 325, Indian Penal Code, and sentenced to four months'' rigorous imprisonment and a fine of Rs. 100. Petitioners Nos. 2, 3, 6, 8, 9, 10 and 13 have been convicted under Sections 147 and 323 and sentenced to two months'' rigorous imprisonment and a fine of Rs. 50. Petitioners Nos. 4, 5, 7, 11 and 12 have been convicted u/s 147 only and sentenced to two months'' rigorous imprisonment. The conviction and sentence have been affirmed on appeal by the learned Sessions Judge. The dispute was as regards certain plots of land which are diara lands under recent accretions on account of the change in the course of the river. It appears that plots Nos. 1410, 1411, 1412 and 1413 of the Settlement Map of 1898 which is Exhibit 8 in the case form the zirait land of the proprietors Jamuna Rai and Parichan Rai. The petitioners or at least some of them are tenants of the village and they have got their holdings to the south of these plots and there is no dispute as regards plots Nos. 1410, 1411, 1412 and 1413 belonging to the complainant''s master. The dispute is as regards certain lands which have formed on account of the change in the course of the river and which are recent accretions and are claimed by complainant''s master as belonging to him, whereas the accused persons claim these lands as belonging to them. The learned Sessions Judge in dealing with the question as to whether the lands belong to the complainant''s master or to the accused, says that it is impossible to say which of the parties is entitled to which portion of the accreted land. It appears that there was a dispute in the year 1905 as regards the title to some of these plots and it was held that the Owner of plots 1410 and 1411 did not acquire any right to the accreted land which was then in dispute. Now, having regard to the finding that it is impossible to say whether the accused or the complainant''s master had any title to the land in dispute it is not possible to say as to whom the crops alleged to have been looted really belonged. Now, the common object of the unlawful assembly as stated in the charge sheet was to loot wheat and barley crops of complainant''s master. When the learned Sessions Judge is unable to say as to whether the land belonged to the complainant''s master or not, it is impossible for him to say that the crops which are alleged to have been looted belonged to the complainant''s master. The charge, as it stands, charges the accused of an offence u/s 147 on the ground that they formed into an unlawful assembly with the common object of looting certain crops belonging to the complainant''s master. Upon the findings of the learned Sessions Judge it is impossible to say whether the crops did really belong to the complainant''s master. If that is so, the common object fails and the conviction u/s 147 cannot stand. There appears to be a bona fide dispute as regards the title in these diara lands; and as regards the lands recently formed by reformation on account of the shifting of the course of the river, it is very difficult for a Criminal Court to say as to whether the title to the land belongs to one party or to the other, and in the absence of a title it is not possible for the Criminal Court to say that the crops belonged either to complainant''s master or to the accused. In these circumstances there can be no looting because there can be no dishonest motive in taking away crops to which at party asserts a bona fide claim of title. The conviction u/s 147 of the Indian Penal Code must, therefore, fail.

As regards the conviction under Sections 323 and 325 there is no finding in the judgment of the learned Sessions Judge as to which of the accused committed what act in order to bring him within the definition of offences under Sections 323 and 325. Under the circumstances it would have, been necessary to remand the case to the Court below for a finding as to which of the accused, can bo convicted under Sections 323 and 325; but having regard to the nature of the injuries and to the nature of the dispute, the injuries being very slight except in the case of one person who has a fracture of the ulna, and to the fact that the petitioners have already undergone 27 days imprisonment, I do not think it desirable to order a fresh trial.

Another point has been taken by the learned Counsel on behalf of the petitioners on the question of identification of the petitioners. It appears that there was, what is called a test identification, that is, during the Police investigation a Sub-Deputy Magistrate was called and in his presence some of the witnesses were asked to identify some of the persons who were suspected of having taken part in the offence. The Sub-Deputy Magistrate made a report which is in a tabular form with certain headings. The first column gives the date of conducting the identification. The second column gives the place where the identification was held. The third column gives the names of the identifying witnesses with note as to which suspects were identified by each witness. The fourth column contains the names of the suspects. The fifth contains mention of the place where the suspects where detained or kept before they were broijgth out for identification. The sixth column gives a description of the manner in which the identification was effected. The seventh column contains the names of witnesses in whose presence the identification was made with their signatures; and the last column contains remarks and signature of the investigating officers. I am not aware as to whether this form of making report as regards the test identification is prescribed anywhere in the law. Nothing has been shown to me, and from the document on the record which purports to be a note of the test identification, it is impossible for me to say what is exactly the nature of the report; that is, the persons who are said to have identified cerain other persons who were suspected, identified them as regards what? The document gives no description as to the offence or to the occurrence in which the persons suspected are said to have taken part. Now in the absence of the Sub-Deputy Magistrate who prepared the report, it is impossible to see the exact meaning of this report. This Sub-Deputy Magistrate who prepared the test identification note has not been called as witness in this case and it is argued by the learned Counsel for the petitioners that this test identification report was not admissible in evidence without examining the Sub-Deputy Magistrate. I agree with this contention and on a mere perusal of this note I am constrained to say that it is no evidence of identification of the accused persons in the present case. This identification note was chiefly relied on by the Deputy Magistrate as well as by the learned Sessions Judge in the present case. There is no doubt mention of other evidence before the Trying Magistrate as regards the identification of the accused. But it is impossible to say as to how far the mind of the learned Judge was influenced by this note of test identification. However, having regard to the fact that convictions under Sections 147, 323 and 325 have Jeen set aside it is not necessary to dwel at any length on this point. The result is that the convictions and sentences are set aside and the fines, if paid, will be refunded.