Deodhari Koeri and others vs Emperor

Rowland, J.—There are eight petitioners before me. They have been convicted of rioting and four of them have been convicted of causing hurt. The origin of the occurrence, it appears, was a family dispute between petitioner 1 Deodhari and Tilesar, a relative of his; their houses are adjacent to one another and on 18th March 1936, they came to blows over the use of a cattle trough and pegs just outside the house of Deodhari. The shouting is said to have brought the rest of the petitioners to the spot and there was a fight. The petitioners were sentenced each to three months'' rigorous imprisonment and fine of Rs. 25 which sentences were affirmed on Appeal. In revision it is contended that the cases of individuals have not been properly considered by the Sessions Judge, that the counter-complaints by two of the accused persons, which were admitted in evidence, were not admissible either against the persons who presented them, or still more so against the other accused, that oral evidence should not have been admitted to explain away the compromise which had been arrived at a year before and that a wrong procedure was followed in allowing some of the prosecution witnesses to be cross-examined by the Public Prosecutor without taking the permission of the Court and declaring them hostile. Some of these points are unsubstantial or immaterial. I find no defect in the charge. As regards the compromise decree, its existence was common ground to both parties, and as to the terms agreed on there is no serious conflict of evidence. As regards the complaints of two of the accused, technically perhaps it was incorrect to consider these in evidence as against the rest of the petitioners; but the accused led evidence and the substance of the evidence was the same as the case sought to be made out in the complaints; so it is impossible to say that any prejudice was caused.

Then as regards the objection to the procedure in the matter of declaring witnesses hostile, it appears from the order sheet of 18th April 1936 that in fact the prosecutor did take the permission of the Court to declare these witnesses hostile and to cross-examine them. It is suggested that there was not sufficient reason for doing so. But S. 154, Evidence Act, in no way fetters the discretion of the Court to permit leading questions to be put by a party to his own witness, and I think it is not at all desirable that the discretion of the Court in this matter should be fettered. As regards the use of evidence of witnesses who have been so declared hostile, the law is in no doubtful state. The evidence of such witnesses is evidence in the case in the same manner and to the same extent as that of any other witnesses whether called by the prosecution or by the defence. This was established in this Court in Sohrai Sao and Another Vs. Emperor, and a much more exhaustive survey of the position in the Pull Bench case of the Calcutta High Court in Praphulla Kumar Sarkar Vs. Emperor leads to the same result. Now as to the contention that the cases of the individuals have not been considered, I am unable to say that there was a failure to come on the evidence to a definite finding as to the presence of each and every one of the petitioners. But the circumstances regarding individuals may perhaps require a little further consideration. A point which does not appear to have attracted the attention of the Sessions Judge is that at an early stage of the dispute, when apparently only Deodhari was quarrelling with the complainant, the prosecution evidence is that Deodhari shouted out : "Help, I am being killed"; and on his cry the remainder of the petitioners assembled. Four of them, as I have said, have been convicted of causing hurt, but against Thakur Singh, Jagarnath Singh and Mukhlal Pande, no particular act of violence appears to be established, and it is not in evidence that they inflicted hurt on any person. I think that merely coming to the spot even with lathi or other weapon in response to a cry by Deodhari that he was being killed, can hardly be considered sufficient to make them guilty of rioting. I would therefore set aside the conviction of these three: petitioners and acquit them. The fines imposed on them, if paid, should be refunded.

As regards the remainder, I do not think that there is any error in their conviction, but it was not perhaps necessary to sentence each of them to three months'' rigorous imprisonment, particularly when it appeared at the trial that the differences between the parties had been composed. Accordingly I reduce the sentence on each of these remaining petitioners to the period of imprisonment already undergone while maintaining the fines and the sentences of imprisonment in default.