Dodraj Mahton and Others vs Emperor

Verma, J.—The petitioners Dodraj Mahto and Yusuf Mian were charged with offences u/s 144 I.P.C., while the other petitioners were charged u/s 143. There were also charges against all the petitioners under Sections 430 and 379 of the Indian Penal Code, but they were acquitted of these charges. The petitioners were tried by a first class Magistrate of Bihar who, by his judgment and order dated the 22nd of December 1933, sentenced Dodraj Mahto and Yusuf Mian to six months'' rigorous imprisonment each u/s 144, while the remaining petitioners were sentenced to four months'' rigorous imprisonment each u/s 143 of the Indian Penal Code. The learned Sessions Judge of Patna has confirmed the convictions and sentences in appeal, and the petitioners have come up to this Court in revision.

As the charge u/s 430, Indian Penal Code, will be of some importance for the purposes of deciding this case I had better quote it in extenso:

That you on or about the same day at the same place (meaning 20th August at Paimar river) committed mischief by cutting Kodwa bandh of Paimar river which has caused a diminution of the supply of water for agricultural purposes, and thereby committed an offence punishable u/s 430, etc.

The common object of the rioting charges will be apparent from a perusal of the charges themselves.

That you on or about 20th day August 1933, at Paimar river of village Nirpur, P.S. Silao, were members of an unlawful assembly, the common object of which was to commit mischief by cutting the Kodwa bandh of Paimar river and thereby causing a diminution of the supply of water for agricultural purposes, and thereby committed an offence punishable under Sections 143 and 144, etc.

A comparison of these two charges will make it clear that the common object in the offences under Sections 143 and 144, Indian Penal Code, was the same as the offence described in the charge u/s 430 I.P.C. I shall revert to this later on after mentioning the prosecution case and the defence. The prosecution case is that there is a bandh known as Kodwa bandh usually made in the river Paimar on behalf of the landlords of village Mari for irrigation of their lands. Villages Nirpur and Jalalpur are on the east of the bandh and the village Saure is situated on the south of the bandh. The bandh was made last year on behalf of the landlords of village Mari and on the 20th August 1933 the river was rising and the water accumulating on account of the bandh. At about 1&Frac12; or 2 hours before sunset a mob of about 150 men armed with lathis, swords, garasas, bhalas and spades went to the bandh and cut it and looted the utensils, clothes and rice which were kept in a hut near the bandh for the use of the watchmen.

At 3 p. m. on the following day an information was lodged at the police station which was at a distance of six miles only from the place of occurrence. The defence was a denial of the prosecution allegations and it was pleaded that the bandh had been washed away by natural causes on account of the water of the river rising and that the petitioners have been falsely implicated on account of enmity arising from the fact that they did not allow earth to be taken for filling up ridges on some occasions. The trial Court in dealing with the case u/s 430, I.P.C., held that there was no proof of any diminution of water supply for agricultural purposes caused by the cutting of the bandh.

The learned Magistrate also came to the conclusion that there was a possibility of the bandh being automatically demolished by the flood water but at the same time he accepted the evidence of the prosecution to the effect that the petitioners out the bandh.. The question which arises in this case is whether on the findings of the trial Court as also on the findings of the lower appellate Court the convictions of the petitioners can stand. The learned Sessions Judge in appeal has come to the conclusion that the motive alleged by the prosecution was not proved. He says:

The motive alleged in the first information report (Ex. 1) is that the mob intended to cause damage to the crops of the complainant''s party. And in the evidence of the complainant (P.W. 1) the motive is said to be an enmity on the part of the mob. But there is no satisfactory evidence of either any damage or of any enmity. The motive is after all a matter of inference and may not have been correctly guessed by the prosecution.

The learned Judge himself suggests a motive which of course is not the motive alleged by the prosecution and this was that it was possible that the accused apprehended the approach of flood water to the lands of their village and that is why they came and cut the bandh. As a general proposition of law, absence of motive is not of much importance when certain positive facts are proved, but in a criminal case where no motive has been proved against the accused, the accused does start with a certain amount of advantage in his favour. In this particular case, when the country side was flooded one would naturally ask what interest the accused had in cutting a bandh for which purpose (as the learned Judge says) they had to swim through water. If the water was plentiful in that locality, there could be no object in cutting the bandh for the purpose of diminishing the supply of water.

But that is not all. The learned Sessions Judge has confirmed the convictions and sentences under Sections 143 and 144, I.P.C., and when the argument was advanced before him that the common object of the unlawful assembly was not proved, he held that although the common object was to commit mischief by cutting the Kodwa bandh of Paimar river and thereby diminish the supply of water for agricultural purposes, yet there are two common objects and the failure of the second one (causing diminution of the supply of water for agricultural purposes) does not prevent the petitioners from coming within the purview of Sections 143 and 144, I.P.C., because the first part of the common object remains intact.

In his judgment the learned Judge says this:

The failure of the second common object does not mean that the first common object also fails. From the evidence and the circumstances I have already mentioned, I infer that the mob had the common intention of causing mischief to the Kodwa bandh by cutting it and formed an unlawful assembly with this object.

Without the second part of the common object which the learned Sessions Judge has himself discarded, the cutting of the Kodwa bandh seems to be the act of people who were hopelessly irresponsible. And it is here that the question of motive becomes important. Why did the accused go and cut the Kodwa bandh unless they had some object. The motive suggested by the prosecution fails: the object was not to cause diminution of the water supply.

The object of cutting the Kodwa bandh I am afraid stands or falls with the other common object mentioned in the charges. Coupled with this, there is the fact that the petitioners have been acquitted of the offence u/s 430. In this connection the learned Magistrate says in his judgment that he did not convict them because he felt that no diminution in the supply of water was caused. The Magistrate refrained from convicting the petitioners u/s 427 as suggested by the prosecution, because he did not find any evidence against any of the individual accused. The petitioners having been acquitted of the charge u/s 430, I.P.C., must be deemed to be innocent of both, viz., cutting the Kodwa bandh and causing diminution of the supply of water. An authority for the proposition that acquittal establishes innocence of the person who has been acquitted will be found in Emperor v. Lalit Mohan Chuckerbutty (1911) 38 Cal 559, in which their Lordships (at 578), relying upon the decision in Rex v. Plummer (1902) 2KB 339, held that

it would be a very dangerous principle to adopt to regard a judgment of not guilty as not fully establishing the innocence of the person to whom it relates.

The learned Government Pleader argues that although the common object mentioned in the charges under Sections 143 and 144, I.P.C., has not been established still the common object may continue to exist even without the completion of offence. In this case unfortunately the prosecution case as framed relies upon the proof of the common object by saying that the Kodwa bandh was actually cut: and if that part of the story is not brought home to the petitioners, they cannot be held liable under Sections 143 and 144, I.P.C. On a consideration of the (above facts and circumstances I am of opinion that the petitioners are entitled to an acquittal.

Their application is accordingly allowed, the convictions passed against them under Sections 143 and 144, I.P.C., are set aside and I direct that they be acquitted and released from bail.