Bhagwat Singh and others vs Emperor

Rowland, J.—The case before US arises out of a dispute regarding a 9 katha plot of land bearing re-visional survey No. 142 in khata No. 22, tauzi No. 3120 in village Babhangawan. The plot was a part of the raiyati holding of Jhari Raut which had been given in usufructuary mortgage to Bhagwat, appellant 1. and members of his family by a deed Ex. B, dated 4th December 1913. The landlord Srikishun Panjiar sued for rent of the holding in 1918 and got a decree in execution of which he put the holding to sale and purchased it himself on 18th May 1920. It has been found by the Sessions Judge that he did not succeed in ejecting the zerpeshgidars. In 1928 the landlord gave a lease of this land to the original raiyat Jhari Raut who, according to the prosecution, has since then been in possession. The landlord sued Jhari for rent of succeeding years and got a decree in execution of which the holding was put to Bale on 11th June 1934, and a petition Ex. A for annulment of Bhagwat''s zerpeahgi under S. 167, Bengal Tenancy Act, was presented to the Collector on 10th August 1934. The defence case was that in spite of all these proceedings the zerpeshgidars retained possession of the land and it has been so found and quite rightly by the Sessions Judge.

The occurrence giving rise to this case took place on 19th October 1934. The prosecution case which the Sessions Judge has accepted, was that Jhari with Durga, Jamuna and Ganesh were ploughing and sowing when the accused with a mob of 30 or 40 men armed with spears came there and without any previous altercation made a violent attack on Jhari and those with him with the result that Durga was stabbed in the back and died immediately. Ganesh was stabbed in the back and also in the belly and died of his wounds in hospital on 21st October 1934, Jamuna received a spear wound on the front of the left thigh, Jhari escaped unhurt. Charges were framed against the five appellants under Ss. 148 149, read with Ss. 302, and 109 read with S. 302 and against Purander Singh under S. 324, with the result that all have been convicted under S. 148 and under S. 302 read with S. 149 and Purander has been also convicted under S. 324. Bhagwat has also been found guilty under S. 302 read with S. 109. The appellants have been sentenced to transportation for life under S. 302 read with S, 149, concurrent sentences being passed under other sections.

The points taken in appeal are that the finding of the Sessions Judge regarding the course of the occurrence is incorrect and that the conviction of rioting cannot be supported as the accused had a right of private defence. The defence version was that Ramlakhan Singh and Charitar Singh of the party of Rajputs were ploughing the fields when an armed mob of Goalas came and attacked them; whereupon other Rajputs came and there was a free fight. This version is supported by two witnesses Brahmdeo Singh and Durga Singh. The Sessions Judge finds their evidence vague and unsatisfactory for good reasons. The Rajputs have not been able to show a single injury on any member of their party in support of the allegation that there was a free fight; the presence of seeds and a basket is not accounted for; the defence version was propounded at a very late stage; and Ram Lakhan Singh has not been examined though available.

Prosecution witnesses (1) Jhari Raut, (2) Jamuna Raut, (4) Sital Raut, (5) Bira Raut, (6) Subran Raut, (9) Parma Raut, (10) Ramdeo Raut, (13) Basudeo Raut, (14) and Megha Mahto were put forward by the prosecution as witnesses of the occurrence. Of these none except Megha are members of any other caste but Ahirs. P. Ws. 4, Sital, 5 Bira, 6 Subran and 13 Basudeo were merely tendered for cross-examination; of the remainder some did not see the actual assault but have identified persons whom they saw in the mob going to or returning from the place, and the Sessions Judge has eliminated these and acts on the evidence of Jhari Rant, Jamuna Raut and Parma Raut. Of these Jhari and Jamuna are directly interested and Parma is not altogether unconnected with them, so their evidence needs scrutiny to see whether their story is convincing and fits in with the state of things which the Sub-Inspector found on the spot. Part of the field was found ploughed and seeds had been sown broadcast. There were no marks of blood or signs of straggle on the disputed plot itself; bat in an adjacent field to the east belonging to Uma Missir, there were blood marks beginning from a place 20 or 25 paces from the south-eastern corner of Jhari''s field and leading to the place where the dead body of Durga was lying. The Sub-Inspector was also shown by Jhari a place 27 steps east of the south-eastern corner of Jhari''s field as the place where Ganesh was assaulted and another place 43 steps south-east of the south-eastern corner of bis field, where Jamuna was assaulted. In Court the eye-witnesses have represented that the assault was committed on the disputed field and that the persons assaulted ran to some distance after being struck and fell in the field of Uma Missir. Thus Parma says : "Jhari Lal and others did not run away on seeing the mob. The three injured went and fell and sat on Uma''s land;" and Jamuna says : "None of us ran away before the assault" and describes the assault as having taken place in Jhari''s field; the injured persons ran some distance after being wounded. Similar is the deposition of Jhari himself, but in cross-examination, when confronted with the fact that he had shown the Sub-Inspector the places of assault as being on Uma''s land, he returned to his original story and said :

We fled on leaving the plough and got filabbergasted on Uma''s laud and there the assault took place.

The description of the actual assault as having taken place in the field of Jhari is therefore an artificial story. I have no doubt that the party of Jhari fled as the mob drew near and were pursued and run down except Jhari who escaped unhurt. It is suggested that Jhari was not an eyewitness at all, but as he was a principal man of the party claiming the field, it is unlikely that he was absent and both the defence witnesses have said that Jhari was present. It is argued that if the prosecution witnesses have distorted facts, their evidence should not be relied on at all as to particulars of the occurrence and as to persons who took part. It seems unfortunate that more of the eye-witnesses Were not regularly examined at the hearing of the case, particularly Subran and Basudeo. However, it seems to me improbable that the wrong persons have been maliciously implicated as the principals in the riot.

The prosecution story seems to have been consistent throughout in maintaining that the leader was Bhagwat who gave the order to attack; that it was. Ekbal alias Kala who stabbed Durga and that Chander Singh accused struck at Durga but missed him. In this connexion it is significant that Ekbal alias Kala absconded directly after the occurrence and has not yet been found. The evidence has been consistent throughout that the assailants of Ganesh were Sobhit Singh and Charitar Singh. Ganesh made a dying statement before a Magistrate on the evening of the day of occurrence to the effect that on Bhagwat''s order Charitar and Sobhit stabbed him. Charitar and Sobhit have both been absconding ever since the occurrence. The prosecution evidence has been consistent throughout that Jamuna was stabbed by accused Purander. I would accept this finding as correct. No overt act of violence is ascribed to Dhanukdhari and Sarup. The Sessions Judge has held all the accused alike liable under S. 302 read with S. 149 and this finding raises questions both of fact and law.

On the facts it appears from the deposition of Jhari that whereas the entire party of Rajputs who came armed numbered 30 or 40 persons, actually only about eight men came to the field and made the attack, whereas the remainder stood at a distance of 15 or 16 liggis and fled as soon as the assault was over saying that murder had been committed. The inference is that the common object of the entire assembly may have been to retain possession of the field for Bhagwat in face of possible resistance, not that all the members intended to attack the Ahirs'' party even if they did not resist. But within this assembly there was a group of about eight persons who either, had from before or formed on the instigation of Bhagwat the common intention of beating the Ahirs to punish them. They did not preface their attack by any demand that the Ahirs should leave the field, therefore it cannot be said that the infliction of injuries on the Ahirs was necessary to make them leave the field. In this state of the facts I am of opinion that in the case of this group no right of private defence arises, that if there was a right to defend Bhagwat''s property from criminal trespass, the assault was not done in exercise of any such right. Against those persons who, led by Bhagwat, ran at the Ahirs'' party who were not resisting the common object of voluntarily causing hurt to them is established. There were at least five such persons; Bhagwat himself, the absconders Ekbal Sobhit and Charitar, the appellants Purander and Chander, and one Moti Lal Singh who was not on trial.

The question remains whether Dbanukdhari and Sarup were in this violent section of the mob. Neither of these two appellants has been identified by P. W. 14, Megha. Dhanukdhari is not identified by P. W. 10, Ramdeo. Parma who identified them as having been in the mob who came from the south does not speak of their going forward to take part in the assault. Sarup is mentioned by Subran but was apparently not named by him to the police and Jamuna does not ascribe any definite part to either of these appellants. I would therefore give them the benefit of doubt and acquit them. On these findings it is manifest that Bhagwat, Chander and Purander are guilty of rioting armed with deadly weapons. It is to be considered whether they are liable by virtue of S. 149 to conviction of the offence of murder or of any other serious offence. The Sessions Judge was of opinion that as murder was committed by some members of the unlawful assembly each of the appellants was liable for that offence. The judgment speaks of murder as being committed "in prosecution of the common object of the assembly," but it was not charged against the accused and it is no one''s case that the common object was to commit murder. The common object charged was "voluntarily to cause hurt." If S. 149 applies it must be by virtue of the second party 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 ease in 20 W R 5 Cr Queen-Empress v. Sabid Ali, (1873) 20 W R 5 Cr = 11 Beng L R 347 (F B), and I take the last five words quoted to mean in this context "in prosecuting 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. The latter construction appears to me to be more in accordance with the intention of the legislature on a reading of the words of the section. In the judgment of Phear, J. in the Full Bench decision in 20 W R 5 Cr Queen-Empress v. Sabid Ali, (1873) 20 W R 5 Cr = 11 Beng L R 347 (F B), above cited, it is observed that the effect of S. 149 may be different in the case of different members of the same assembly. This view is consistent with the principles laid down in Ss. 35 and 38 of the Code : S. 35 runs :

Whenever an act, which is criminal only by reason of Its being done with a criminal knowledge or intention is done by several persons, each of such persons who joins In the act with such knowledge or intention is liable for the act in the same manner as if the act were dona by him alone with that knowledge or intention,

and S. 38 runs :

Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act,

and again S. 110 lays down that :

Whoever abets the commission of an offence shall if the person abetted docs the act with a different intention or knowledge from that of the abettor be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.

This view of the law was acted on in 1924 All 670 Behari v. Emperor, 1924 All 670 = 83 I C 714 = 26 Cr L J 154. by the Allahabad High Court and by Judicial Commissioner''s Courts in 60 I C 679 Barkan Singh v. Emperor, 1920 Oudh 152 = 60 I C 679 = 22 Cri L J 279 and 99 I C 93 Ahmed v. Emperor, 1927 Sind 103 = 99 I C 93 = 26 Cr L J 61 = 21 SLR 159.. In this Court, however, it has been held in 1 Pat 753 Ram Prasad Singh v. Emperor, 1923 Pat 50 = 71 I C 119 = 24 Cri L J 65 = 1 Pat 753 = 4 P L T 213, that under S. 149 other members of the assembly should be convicted either of the same offence as the principal offender or of no offence at all. No authority is cited in support of this view and Ss. 38 and 110, I. P. C. are not referred to. With great respect, I think that the principle of Ss. 38 and 110 applies to offences under S. 149 and that the liability of individual members of an unlawful assembly under the latter section depends on the intention or knowledge of the members. In the case before us the principal offenders Charitar, Sobhit and Ekbal alias Kala are not on trial so that no question can arise in this case of convicting the principal offenders under one section and other members under another and the decision in 1 Pat 753 Ram Prasad Singh v. Emperor, 1923 Pat 50 = 71 I C 119 = 24 Cri L J 65 = 1 Pat 753 = 4 P L T 213 is not applicable to the facts of this case. It does not, in fact, fall to be finally determined here and now whether the offence committed by Sobhit, Charitar and Ekbal amounted to murder or not. I do not however consider that the likelihood of murder being committed was in the contemplation of other members of the mob when they made the attack. It is certain at least that grievous hurt was voluntarily caused, and considering the weapons used, I think that all must have been well aware that grievous hurt was likely to be caused and therefore, in my opinion, the appellants Bhagwat Chander and Purander are liable by virtue of S. 149 to the punishment of voluntarily causing grievous hurt with deadly weapons, S. 326, I. P. C.

In the result I would acquit Dhanukdhari and Sarup. I would maintain the convictions and sentences of the other three appellants under S. 148 and of Purander under S. 324 and I would alter the conviction of all the appellants from S. 302 read with S. 149 to S. 326 read with S. 149 and that of Bhagwat from S. 302 read with S. 109 to S. 326 read with S. 109. I would sentence Bhagwat to undergo seven years'' rigorous imprisonment and Chander and Purander each to undergo four years'' rigorous imprisonment, to ran concurrently with the sentences under other sections.

Varma, J.

I agree.