Emperor vs Rashbehari Lal and Others

Dhavle, J.—Rashbehari Lal and 21 other persons were tried by jury in the Sessions Court of Patna for a riot in which one Sitasaran Singh, a zamindar and cultivator of Sinawan in the thana of Ekangarsari, was murdered. Six of them were charged u/s 148, and the rest u/s 147, I. P.C., and they were all further charged u/s 302 read with Section 149, I. P.C. By a majority of six to one the jury brought in a verdict of guilty under Sections 302 and 148 against eight of the accused.

The Sessions Judge accepted the verdict u/s 302 and sentenced seven of them Rashbehari Lal, Dhunukdhari Lal, Jugul Singh, Jaldhar Singh, Sita Raut, Badri Singh and Chandar Singh, to death and the eighth man, Saheb Singh, to transportation for life. Three of these eight men had been charged u/s 147 and not u/s 148, but the learned Judge did not consider it necessary to refer this part of the verdict to the High Court and passed no sentence u/s 148 on any of the eight men found guilty under this section by the jury. By a majority of six to one the jury also found the other 14 accused guilty u/s 147 and not guilty u/s 302/149, I. P.C. The Sessions Judge accepted this verdict and sentenced four men Mangru Mahto, Sakhu Pasi, Bajrangi Singh and Bhim Singh to five year''s rigorous imprisonment and a one of Rs. 50 each, and the other ten men to two years rigorous imprisonment and a fine of Rs. 100 each.

The sentences of death passed on seven of the accused have been referred to this Court for confirmation u/s 374, Criminal P.C., and all the 22 accused have also appealed against their convictions and sentences. Section 418, Criminal P.C., restricts appeals in jury cases as a general rule to matters of law. This restriction however does not apply to references u/s 374, Criminal P.C. see Queen-Empress v. Chatradhari Goala 2 CWN 49; and Sub-section 2 which was added to Section 418 in 1923, provides that where in a case tried by a jury any person is sentenced to death, any other person convicted in the same trial may appeal on a matter of fact as well as a matter of law. (After stating the facts of the case in detail and discussing the evidence, his Lordship proceeded.) The jury found these men guilty of murder substantively, and not merely constructively u/s 149, I. P.C. The charge framed was however a charge of constructive murder only--Section 302 read with Section 149, I. P. C.

Learned Counsel has urged that the jury obviously failed to understand the directions of law correctly given to them by the learned Judge, and that they were not entitled on the charge as framed to find these men guilty u/s 302. The learned Sessions Judge apparently accepted the verdict as proper on the view that the men concerned were all liable to be convicted u/s 302 by virtue of the provisions of Section 149, I. P.C. In any case it was ruled in Bhondu Das Vs. Emperor, that a conviction upon a charge which was not expressly formulated is not improper where the facts which it was necessary to prove on the charge as framed and on which evidence was given are the same as the facts upon which the accused could be convicted of the substantive offence, provided that the accused is put to no disadvantage and would have had to adduce no further evidence. In the present case the prosecution story even in the commitment proceedings was that these eight accused had taken the parts now assigned to them. A substantive charge of murder could thus have been framed against them and the constructive charge framed u/s 302/149, I. P.C., actually required them to prove more than if they had been directly charged with the murder. In my view therefore the convictions of these eight men u/s 302, I. P.C., must be affirmed. Having regard to the deliberate character of the assassination I would accept the reference and confirm the death sentences passed on seven of them. I would also affirm the sentence of transportation for life on the eighth man Saheb Singh.

As regards the other 14 appellants, the jury were satisfied that they took part in the rioting, but they were not satisfied that they were liable for the murder. The learned Sessions Judge had pointed it out to the jury that the common object of the unlawful assembly as charged was twofold; (1) assaulting Sitasaran Singh, and (2) intentionally causing his death. The jury obviously found the former, but not the latter. The learned Judge also pointed out that four of the accused Mangru, Sukhu, Bajrang and Bhim had been recognized by Raghuni but not by Ramlagan. It was. open to the jury to act on the evidence of Raghuni alone, but there is a well known danger in cases of this kind which must not be ignored: in a time of excitement and confusion, there is a possibility of honest witnesses being. mistaken as regards the persons they think they have seen. In addition to this, it appears in the present case that Raghuni did not mention Mangru, Sukhu Bajrangi and Bhim to the police at an early stage. As the appellants are entitled to raise matters of fact, it is open to this Court to hold and act upon the view that the participation of these four men in the riot has not been fully established. The learned Sessions Judge was of course bound by the finding of fact arrived by the jury but it was probably on account of the difference in the evidence against these men and the other ten that he awarded to these four appellants a smaller sentence than the others convicted under the same section I would accordingly allow the appeal of these four men and acquit them, and I would dismiss the appeal of the other ten appellants convicted u/s 147, I. P. C.

It remains to notice one other point it was stated in the petition of appeal that out of the seven jurors who tried the case one did not know English at all and another could not follow the arguments of the lawyers of the charge of the Judge if made or delivered in English. This on the face of it is a matter which should have been mentioned to the learned Judge below when he was empanelling the jury. It was said on behalf of the appellants that they were not aware at that time of these matters. If so, the allegations should have been supported by an affidavit filed in time so that the Crown could make the necessary inquiries and file a counter-affidavit if necessary before the appeal came on for hearing. The appellants deliberately refrained from doing so, but filed an affidavit made by one Dwarka Singh, on the day the appeal came on for hearing. Dwarka Singh was cross examined by the Government Pleader who was thus able to establish that the affidavit was valueless in spite of the man''s oath that the facts stated in the affidavit were true to his knowledge. Dwarka Singh had to admit that he himself did not know English so that it was idle for him to swear that one of the jurors did not know English sufficiently. He also admitted that as regards total ignorance of English on the part of another juror, all that had happened was that while going somewhere, he had heard two, men talking to each other and one of them told him that the juror did not know English. Dwarka Singh says that he mentioned the fact to the pleader who filed the appeal, and that the pleader so far from.suggesting that the appeal should be accompanied by an affidavit, told him that the matter would be seen to hereafter. It is clear that the allegation of fact in the petition of appeal was made in circumstances which do not show that the pleader at all realized his responsibility.

this Court has even had before it more than one instance in which a false affidavit was sworn, it was said on the advice of a pleader. Mr. Yunus said that he had been briefed in the case only a day or two before the hearing of the appeal. After the miserable failure of Dwarka Singh''s affidavit, Mr. Yunus attempted at a much later stage to file another affidavit, but it was impossible even to entertain it. It is prima facie incredible that the. Public Prosecutor and an experienced Sessions Judge would address a jury in English without ascertaining that all the jurors knew that language; and we were informed by a pleader, who appeared with the Public Prosecutor in the Court of session, that before opening the case the Public Prosecutor had inquired from the jurors in what language they would like to be addressed. There was, I regret to say another pleader appearing on the other side who contradicted this; but further inquiry became unnecessary because of what the Government Pleader brought out in the cross examination of Dwarka Singh.

Courtney-Terrell, C.J.

I agree.