Bhola Bind and Others vs Emperor

Meredith, J.—This is an appeal by six persons who have been convicted and sentenced by the learned Assistant Sessions Judge of Motihari. The learned Judge has convicted the appellants, Bhola Bind and Rudal Bind u/s 304, Penal Code, and sentenced them to undergo rigorous imprisonment for seven years each. He has further convicted the appellant, Sataha Bind, u/s 324 of the Code, and sentenced him to three years'' rigorous imprisonment. Ho has convicted the appellants, Bansi Bind and Aklu Bind, u/s 323, and sentenced them to one year''s rigorous imprisonment each, and he has convicted all the appellants under Sections 148 and 379 of the Code, and sentenced them to undergo three years'' rigorous imprisonment each. All the sentences have been made concurrent. In all these findings the learned Judge was in agreement with the unanimous opinion of his assessors.

The case arose out of a riot which took place regarding the cutting of crops of certain Gangbarar lands situated in the northern portion of Hasuaha, the village of the appellants. The complainant''s party are residents of village Ekawna, which lies on its northern boundary. It appears from the evidence, and it is not disputed, that formerly the river Sikrahna ran north of these lands, but the river gradually moved towards the south. The lands became diluviated, and gradually reformed north of the river. According to the prosecution, as the lands gradually alluviated, Parmeshwar Salmi, Debi Sahni and Dangar Sahni took possession of them as accretions to their lands, with which they amalgamated them. On the morning of 6th March 1942, about two gharis after sunrise, Ghughli Sahni, son of Permeshwur, learnt that the appellants with a mob of 30 or 35 men had come across the river from the south, and were cutting the crops standing on these lands. Ghughli and his brother, Majhi hurried to the spot, e. and found a mob armed with deadly weapons cutting the crops. Ghugli raised a halla whereupon Debi and Dangar ran up and found the mob cutting their crops also. They protested, whereupon the appellant Sataha assaulted Dangar with a garansa, and on his falling down Bhola and Rudal assaulted him with spears. Debi was also assaulted by Dhawal with a spear, and by Aklu and Bansi with lathis. After this, the mob carried away the cut crops.

Village Ekawna is situated within the jurisdiction of Dhaka thana whereas Hasuaha lies within Motihari thana. Consequently, Ghughli ran off to Dhaka thana, 8 miles distant, where he lodged the first information, at 1-30 P.M. This first information was sent to the Sub-Inspector of Motihari thana, who conducted the investigation. Meanwhile, however, Dangar, who was in a dying condition, was taken straight to Motihari hospital, and there his dying declaration was recorded by a Sub-Deputy Magistrate (P.W. 6). Dangar died in the hospital next day, the 7th, and the post mortem disclosed that death was due to spear wounds which he had received in the abdomen. There were three penetrating wounds in the abdomen, besides other injuries. The small intestines were punctured, and the liver was cut through.

The defence version was that Sataha and his brother, Lakhan, with a labourer, Natha, were cutting the crop of their own land, when Parmeshwar with his sons, Ghughli and Majhi, went there with a mob, and attacked them. Sataha and Lakhan made their escape, but Natha was caught and assaulted. The appellants professed ignorance as to who had assaulted Debi and Dangar. Beyond this, the defence is not very clear. In the written statement no specific claim is put forward to any of the lands, and there is a definite statement that the appellants had no enmity, cause of quarrel, or anything to do with Debi and Dangar and their lands, and could have no motive to loot their crops and inflict any injury on Debi and Dangar. Moreover, one of the defence witnesses, Baburam Bind (D.W. 2), made a definite statement that except Sataha no other accused had any land to the north of the river. In argument, however, it was suggested that the appellant, Dhawal Bind, and his son, Bansi Bind, had some claim to the land claimed by Debi and Dangar, land which has been clearly identified as plot 100/l, and also to certain portions of the land claimed by Ghughli, namely, plots 1853 and 1854, which are definitely not lands claimed a by Sataha, Sataha''s claim being limited to plot 1830. It is in evidence (see the evidence of the Collectorate amin P.W. 19 and his report, Ex. 6) that the appellant, Bansi, in May 1941, had brought a criminal case u/s 379, Penal Code, against Parmeshwar and others in regard to the crops of plots 1853 and 1854, and other plots. This amin reported that Bansi under colour of a settlement from the Bettiah Raj had. attempted to take possession of khesra Nos. 1853 and 1854, but Parmeshwar had been in possession thereof from before according as reformation took place by amalgamating the same with his lands. Parmeshwar had taken wrongful possession and had petitioned the only for settlement, had cultivated and harvested the crop, which had resulted in the institution of Section 144 proceedings. On this report the Sub-divisional Officer dismissed the case u/s 203, holding that it was a civil dispute. With regard to this, Ghughli says that he won the criminal case and so took the crops, and grew the next crop regarding the cutting of which the occurrence took place. No doubt, this is the reason why in the present case none of the appellants had definitely put forward any claim to plots 1853 and 1854. In the present case, the only claim specifically put forward has been that of Sataha and his; brother, Lakhan, to plot 1830. 1830 is a small plot lying just south of plot 1829, which is admittedly Parmeshwar''s and between it and the river. This plot unquestionably formerly stood in the name of Lakhan, but it appears from the evidence of Awadh Behari Prasad (P.W. 16) the Raj Patwari, that about five years previously there was a certificate case against Lakhan in respect of this plot. The Raj obtained a decree and in execution sold the plot at auction and purchased it.

Subsequently, Lakhan filed a petition before the Circle Officer stating that he was willing to pay the arrears and praying that the land might be settled with him. Accordingly, the Raj in the year 1940 resettled the plot with him, and he subsequently paid the rent. The history of this plot is further elucidated by Dhanukdhari Lal (P.W. 15), who was formerly an amin in the Bettiah Raj. He was deputed in the year 1938 to measure the Gangbarar lands, and prepared a khesra (EX. 4) according to possession. Therein he recorded both plots 1829 and 1830 as in possession of Parmeshwar Sahni of Ekawna. He states that Parmeshwar having taken possession had filed a petition for settlement in the Raj, and after measurement the witness recommended to the Raj that settlement should be made with him. Ghughli himself admits, however, that orders were never passed on e that petition, and says it is still pending. P.W. 15 further states that on paper the possession of the Raj used to be shown on plot No. 1830 by virtue of auction purchase, but in reality Parmeshwar was in possession of it on the spot. Incidentally, in 1938 this witness did not find Parmeshwar in possession of plots 1853 and 1854. So it is evident that Parmeshwar must have taken possession of those two plots between the years 1938 and 1941.

As for plot 100/1 which is now claimed as belonging to Debi and Dangar and which, as I have said, none of the appellants have definitely claimed in this case, it appears that in the year 1941, there were proceedings u/s 145, Criminal P.C. between Debi and others on the one side and Beni Prasad and others on the other. The subject of these proceedings was plot 100/1 and a number of other plots. On 3rd September 1941, the Magistrate found possession of Debi Sahni and his party.

There was a counter case to the present case in respect to the injuries caused to the labourer, Natha. This was instituted by Sataha on 9th March before the Sub-Inspector during the course of his investigation. It ended in acquittal. Baburam Bind examined as D.W. 2 in the present case was there examined as P.W. 3, and he then stated, though he has denied it in the present case, that Dhawal used to cultivate the land of Kapildeo, but Parmeshwar turned out Dhawal from his lands and took possession, successfully ousting Dhawal. This former land of Kapildeo, according to Sukh Ram Bind (D.W. 3) was apparently on the eastern boundary of the land which he describes as Sataha''s that is plot 1830, and consequently may have been plots 1853 and 1854 (vide the police map prepared in the present case).

It is clear from all the above that, besides the claim of Sataha to plot 1830, there & was some sort of claim by the appellants, Bansi and Dhawal, to other plots taken possession of by Parmeshwar, which explains why these appellants had joined with Sataha, and it is clear that the Gangbarari lands claimed by Debi and Dangar had also formed the subject of disputes in the past. It has been argued before us that if the appellants did cut the crops, they cut crops only from plot 1830 to which Lakhan had a good claim. But the history of the other plots which I have narrated, makes that story improbable. It is the prosecution case that crops were being cut not only from 1830, but from 1853 and 1854 the other plots claimed by Ghughli and Parmeshwar, and also from 100/l, the a land lying on both sides of the pyne claimed by Debi and Dangar. In the circumstances I can see no reason to doubt that this case is correct. The Sub-Inspector unfortunately did not get the lands demarcated so as to show clearly from what plots he found crops cut, but his evidence does at least disclose that he found the crops cut irregularly in four places not all of which could have been within 1830, which is a very small plot. And it further makes it perfectly clear that one of the plots which was cut, was 100/l, the crop of Debi and Dangar because he states that one plot, which he found cut, was situated on both sides of the pyne. Having regard to the map that could only be 100/1.

Then with regard to the possession of these lands a large number of witnesses have testified that Parmeshwar and his sons and Debi and Dangar respectively were in possession, while on the other hand, the three defence witnesses examined, who have attempted to prove merely possession of Sataha over 1830, have made discrepant and unsatisfactory statements. The learned Assistant Sessions Judge has believed the evidence of the prosecution witnesses on the point so also did the assessors, and, in my opinion, their finding was undoubtedly correct. The defence witnesses tried to make out a case that there were demarcation ridges between plot 1830, and the other lands, but Baburam (D.W. 2) had to admit that in the counter ease he had stated that there were no ridges between the lands of Sataha and Ghughli, and it is proved by the evidence of the Sub-Inspector that there were no ridges at all between any of these plots. The circumstances, therefore, clearly support the evidence of Ghughli and the other witnesses that Parmeshwar had taken possession of these lands as they accreted, and amalgamated them with his own.

I am satisfied that none of the appellants had grown any of the crops, which were looted by them, and it is evident that Sataha, feeling he had a right to plot 1830, as it was his former land and as he had taken a fresh settlement from the Kaj, whereas Parmeshwar had not been given settlement, had attempted to take forcible possession by looting the crops, and the other appellants, no doubt, joined him because of their own shadowy claims. There was some excuse undoubtedly for Sataha, though he acted wrongfully in attempting to take forcible possession but there was no excuse of any sort for the other appellants, or for the cutting of the crops from plots 1853, 1854 and 100/1.

It follows that all the appellants have been a rightly convicted under Sections 148 and 379. Coming now to the specific offences, I can find HO reason to doubt that Bhola Bind and Rudal Bind speared Dangar to death, and that Sataha cut him with a garansa. In Dangar''s dying declaration, which I can find no reason for distrusting, he said that Bhola, Dhawal and Rudal had assaulted him with spears while Sataha had assaulted him with a garansa. If all these four joined in assaulting Dangar with deadly weapon, not alone Bhola and Rudal but also Sataha and Dhawal could have been convicted u/s 304. Sataha, has, however, been convicted only u/s 324 and given three years running concurrently with his sentences under Sections 148 and 379. Despite the fact, therefore, that Sataha had a grievance, I cannot hold that he has been severely dealt with.

As for Bhola and Rudal, they are, in my judgment, extremely lucky that they have been convicted only u/s 804. The learned Judge says: "There is nothing to show that these persons had any intention to kill Dangar." I am afraid I cannot agree. Persons who drive spears into a man''s intestines must have an intent to cause death attributed to them. Even villagers are aware that a spear '' wound in the abdomen is almost invariably fatal. As I have already said, Dangar was given no less than three spear wounds in the abdomen, his intestines were punctured, and his liver cut through. His assailants knew that they were entirely in the wrong as they were attempting to steal crops which they had not grown. Their offence, in my judgment, was plainly murder. They should have been charged and tried for an offence u/s 302 of the Code. In Criminal Appeal No. 320 of 1942 (Baudh Koeri v. Emperor Cri Appeal No. 320 of 1942) I had occasion to make the following observations, which it now seems to me desirable to repeat:

I am quite satisfied that Bamkewal was killed by Baud Koeri by driving a spear through his body.... The conviction u/s 304 was, in my judgment, wrong, and apart from that, the sentence of four and a half years, having regard to the circumstances of the case, was wholly inadequate.... Had the matters come to the notice of this Court at an earlier stage, a rule for enhancement would unquestionably have been issued. This case is not an isolated one, but one of a number which have come to our notice recently in which persons guilty of plain murder have been convicted of lesser offences and given grossly inadequate sentences. It appears necessary to remind the subordinate Courts that where a man intentionally kills another, or intentionally inflicts bodily injury sufficient in the ordinary course of nature to cause death, his act is murder, unless the accused can bring the case within one of the exceptions, specified in Section 300, Penal Code. u/s 105, Evidence Act, not only is the burden of proving the existence of circumstances bringing the case within an exception upon the accused persons, but the Court shall presume the absence of such circumstances. That is the point of view from which the case should be approached. It is necessary to impress upon Sessions Judges and District Magistrates that cases of this type should never be transferred to an Assistant Sessions Judge or to a Magistrate specially empowered u/s 30, Criminal P.C. for trial. The law prescribes only two possible punishments for murder death or transportation for life. It is the duty of the Sessions Judge to examine every commitment order bearing this in mind, and if there is any possibility that murder has been committed, he must either try the case himself, or send it to an Additional Sessions Judge, if one is available. Should a Court, not empowered to impose the legal sentence, find that a case of this type has been inadvertently transferred to it, it should not proceed to try it, but should return the case at once to the transferring authority for necessary orders.

In the present case Bhola Bind and Rudal Bind in getting only seven years'' imprisonment have, as a result of the trial being held by an Assistant Sessions Judge, been treated with undue leniency.

There remain the convictions of Bansi Bind and Aklu Bind u/s 323. They have been given one year each for assaulting Debi. There is the evidence of a number of witnesses against them, and there is no reason to 6 doubt it. Their sentences fall within the period of imprisonment they will suffer for their offences under Sections 148 and 379. In the circumstances there can be no reason to interfere with their convictions.

In the result 1 would dismiss the appeal in the case of all the appellants.

Manohar Lall J.

I agree.