Bikram Mahton vs Emperor

Reuben, J.—The appellants Bikram Mahton and Siharam Mahton have been convicted u/s 148, Penal Code and the other appellants u/s 147, Penal Code, and all the appellants have been convicted u/s 24, Cattle Trespass Act. In addition, Bikram Mahton and Siyaram Mahton have been convicted under Sections 302 and 324, Penal Code, respectively, the former being sentenced u/s 302 to transportation for life and the latter u/s 324 to rigorous imprisonment for three years. The remaining appellants have been sentenced each to rigorous imprisonment for two years u/s 147. No separate sentence has been imposed in respect of the convictions under the other sections.

The case arises out of an occurrence which took place in village Bhojali, police station Gopalganj, at about 5 p.m. on 16th September 1945. The occurrence is described as follows by Nandkumar (P.W. 2), father of the deceased Kailash, who lost his life in the occurrence, in his first information report lodged at the police station at about midnight of the 16th-17th September:

I state before you, the Sub-Inspector of police, that I have taken settlement of a parti land belonging to Narsingh Rai in village Bhojali for grazing cattle at an annual rental of Rs. 8. Sitaram Mahto and Jamuna Mahto, who are residents of the same village, were forcibly (without my permission) grazing cattle in my [parti land. A little before sunset, my son Kailas and I went there and forbade them to graze cattle. They did not pay any heed. Then we began to surround the cattle. In the meantime they sent information to the village through a boy. Upon this, Bikram Mahton, son of Parsuram, Siaram Mahton son of Parsuram, Mahanth Mahto son of Fena Mahto, Jhapsi Mahto, son of Bisun Mahton, and Ramparsan Mahton son of Dharichan Mahto, armed with lathis and bhalas arrived there. Bikram and Siyaram were armed with bhala and the rest were armed with lathis. They came to help Jamuna and Sitaram. They surrounded me and my son, snatched away the cattle and began to assault us. Bikram Mahton dealt a bhala blow on the back of my son. When ha fell down, Jamuna and Sitaram also assaulted him with lathis. Siaram Mahto gave me a bhala blow on the right elbow. At that very moment, my son fell down and died. Finding that he was dead, all of them took to their heels.

The Sub-Inspector, who recorded the first information, visited the village the next day at 10 a.m. and inspected the spot. Upon the parti land, which is claimed by Nandkumar to have been settled with him for the purposes of grazing, he found some marks of grazing. He did not find any blood on the alleged place of occurrence, and this has been made, the subject of strong comment in view of the main injury on the person of Kailash, deceased, which was a piercing wound, 1� "x �" X chest cavity deep, on the left side of the back in the middle, an injury which pierced both the layers of the pleura, the left lung and passed right through the lungs, entered the pericardium and passed through the left portion of the heart, finally reaching the diaphragm on the left side. The explanation for the absence of blood appears from the evidence of the Sub-Inspector, who found that the spot was a watery one, with water standing to a depth of 3," the soil was sandy and, in addition to this, there is evidence that there was rain after the occurrence.

The prosecution version of the occurrence has been deposed to by Nandkumar himself (P.W. 2) and by four other witnesses, Abdus Sattar (P.W. 4), Aliman Mian (P.W. 5), Ram Narain Rai (P.W. 12), and Bhagwat Rai (P.W. 13), all of whom are mentioned as witnesses in the first information report. We have been taken through the evidence of all these witnesses, and our attention has been drawn to certain discrepancies between the account now given and that given at the time of investigation. The first discrepancy relates to differing statements regarding the number of persons who were sent by Sitaram and Jamuna to call the others. According to the first information report, only one boy was sent. In the Court of the investigation, statements seem to have been made by some of the witnesses that two boys were sent. The evidence, however, as given in Court, is that only one boy was sent. The point does not appear to me to be of very much importance. The evidence discloses that the accused persons live in two different tolas at a distance of about one mile from each other. Evidently some doubt arose as to whether one person could have gone to both the villages and informed all these persons in time for them to arrive at the spot before the assault took place. Hence, the suggestion was made that two people were sent. Really it does not matter very much, because the noise of the squabble on the land would be heard by a number of people, and persons interested in the parties would hurry up immediately, whether someone was sent to call them or not. Also, because these people live in different tolas, it does not necessarily follow that they would be in separate tolas at the time when the quarrel arose; they might very well have been in one place and come together from there. Obviously, the prosecution witnesses cannot tell whether they came from one place or from the two different tolas. Subsequently a fanciful statement about two boys having been sent and reverted to the original statement. The next point refers to the alleged giving of an order by Jamuna and Sitaram to assault, whereupon Bikram and Siyaram committed to assault. It is urged that this was not mentioned by Nandkumar before the police. This too is merely a detail, on which the other witnesses do not seem to have made contradictory statements. It has been pointed out that Sattar and Bhagwat did not make any statement before the police that Jamuna and Sitaram were there from before and the others came there subsequently. This is a detail, the mentioning of winch would obviously depend on the manner in which the statement of the witnesses was recorded by the Sub-Inspector, who was concerned with investigating the truth of the occurrence and who may not have considered it necessary to record all the particulars.

Discrepancies have again been referred to between the accounts given by Nandkumar and by his different witnesses as the occasion which brought them to the place of occurrence; for instance, Aliman, was scraping grass on the field of Mahraj Gir, that Hardeo was scraping grass in his own field, that Bhagwat was watching his field and that Ram Narain was coming from the north to see his land. There are discrepancies, it is true, but the test sought to be applied is rather a test of the memory of the witness than something by which the statements of the other witnesses can be checked. These details are not such that the witness was likely to have first hand knowledge about them; they were too petty to have been noticed by him at the time, and any attempt which he now makes to tell us why these witnesses were there are either attempts to satisfy the cross-examiner on the points raised by him, or an attempt to reproduce from memory statements made by the different witnesses or by other persons regarding them.

The evidence of Abdus Sattar has been criticised on the ground that he could not give particulars about the land of Ramyad Bai in the vicinity of the place of occurrence which he claims to have been cultivating on batai at the time of the riot. There is no evidence as to the length of time for which he has been cultivating the land, and his failure to give the particulars does not necessarily discredit him. On the other hand, the Sessions Judge seems to have been particularly struck with this witness and to have placed special reliance upon him as an independent witness.

The Sessions Judge has also placed special reliance on the next witness, Aliman Mian, regarding whom the only comment is that he says he was scraping grass on the field of Bacha Babu whereas. Nandkumar speaks of him as scraping grass in some other field. As I have said above, this is not a discrepancy which can discredit this witness. [After reviewing the evidence further, his Lordship continued.]

On a consideration of the evidence as a whole, I have not the slightest doubt that the prosecution account of the occurrence is substantially true. As regards the alleged settlement of the land with Nandkumar, a point of law has been raised before us that the Icabuliat (exhibit 4) not being registered should not have been taken in evidence. Section 49, Registration Act provides that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting such property, unless it has been registered. Here, we are not concerned with the question of title at all. For the purposes of the Cattle Trespass Act, it is sufficient that Nandkumar should be the occupier of the land within the meaning of Section 10, Cattle Trespass Act. It is, therefore, arguable that the document was admissible for proving the possession of Nandkumar. In view, however, of the oral evidence of the settlement given by Ramnarain Rai and Bhagwat Rai, which I consider quite satisfactory apart from the Kabuliat, I do not think it necessary to go into this point of law.

The point next raised is whether, in the circumstances of the case, Nandkumar had the right to seize the cattle for purposes of impounding. The charge of rioting recites the common object of the unlawful assembly to be "to rescue cattle lawfully seized by Nandkumar." Mr. Lal Narain Sinha argues that the seizure was not lawful and, therefore, the charge of rioting breaks down. Section 10 of the Cattle Trespass Act provides that the cultivator or occupier of any land, or any person who has advanced cash for the cultivation of the crop or produce on any land, or the vendee or mortgagee of such crop or produce or any part thereof, may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon. I see no reason why Nandkumar, with whom the land had been settled for the purpose of pasture, should not be regarded as the occupier of the land within the meaning of this section, and why the grass standing thereon, which was being eaten by the cattle, should not be regarded as the produce of the land within the meaning of this section. By eating this grass the cattle was undoubtedly causing damage, and Nandkumar was entitled to seize the cattle for the purposes of impounding. From the circumstances of the case there can be no doubt that all the accused persons shared in the common object mentioned in the charge, and the charge of rioting has, in my opinion, been amply established.

The question remains as regards the sections under which Bikram Mahton and Siyaram Mahton are respectively, liable. The evidence of the witnesses is that Siyaram struck Nandkumar with a bhala, and this is corroborated by the nature of the injuries found by the doctor on Nandkumar. The conviction u/s 824, appears to be justified. As regards Bikram Mahton, we ought to take into consideration the fact that during the occurrence he himself received certain injuries and that these injuries were received by him before he struck the fatal blow. This occurred in the course of a quarrel which was certainly not premeditated, and at a time when the feelings on both sides must have been running high. On his behalf Mr. Pal Narain Sinha urged that it should be held that he was acting in exercise of the right of private defence. In view of the fact that the blow was struck from behind and that on the side of Kailash there was only his father, Nandkumar, whereas on the other there were seven armed persons there is no force in this argument. I think, however, that the act of Bikram should be held to come within exception i to Section 300, Penal Code.

On the above grounds, I would alter the conviction of Bikram to one u/s 304 (First part), Penal Code and would reduce the sentence to rigorous imprisonment for seven years. Considering the circumstances in which the occurrence took place, I would also, while upholding the convictions under the other sections, reduce the sentence of Siyaram to one of two years'' rigorous imprisonment and of the other five appellants to one year''s rigorous imprisonment.

Dalziel, J.

I agree.