Emperor vs Wazira Mahto and Others

Kulwant Sahay, J.—This is a reference u/s 307 of the Code of Criminal Procedure made by the Sessions Judge of Patna on a disagreement with the verdict of the Jury.

Fourteen persons were placed upon their trial charged with various offences. All of them were charged with the offence punishable u/s 302/149 of the Indian Penal Code. Four of them, namely, Daroga Mahto, Etwarchand Mahto, Ramsaran Mahto and Anant Mahto were charged under 8s. 302 and 148. Three of them, namely Wazira Mahto, Murat Mahto and Nathuni Mahto were charged u/s 147 and the rest were all charged u/s 148. The Jury returned a unanimous verdict of not guilty as against Nathuni Mahto and the learned Sessions Judge accepted this verdict and acquitted him. The Jury also returned a verdict of not guilty, as against all the accused u/s 302/149 and u/s 302 as against the four accused persons who were charged under this section They unanimously found Wazira Mahto and Murat Mahto guilty under a 147 and the rest of the accused u/s 148 The learned Sessions Judge in his letter of reference states that he would accept the verdict of not guilty u/s 302 as against the four persons who have been charged under this section and he would also accept the verdict of guilty under Sections 147 and 148 against the accused persons who have been found guilty under those section by the Jury but he does not accept the verdict of not guilty u/s 302/149 as against all the accused except Sukhari Mahto and Tetar Mahto in respect of whom he would accept the verdict of not guilty u/s 302/149.

Having regard to the verdict of the Jury and to the replies given by the Foreman to the question put to him by the learned Sessions Judge it appears to me that the verdict of the Jury is inconsistent. They found that all the accused persons except Nathuni, who has been acquitted, formed members of an unlawful assembly with the common object of assaulting Jaijai as stated in the charge and that eleven of them committed rioting with deadly weapons. They also found it as a fact that Jaijai was murdered, but they did not find it that Jaijai was murdered at the time and place mentioned by the prosecution witnesses; nor that he was murdered by any of the accused persons. Having found that the accused persons formed an unlawful assembly and committed rioting with deadly weapons I think it follows that as Jaijai was murdered in the course of the rioting all the accused persons would be guilty u/s 302/149. The verdict of the Jury, therefore, is one which cannot be accepted even as regards their finding of guilty on the charges under Sections 148 and 147 without a due consideration of the entire evidence in the case.

It has been contended by the learned Government Pleader that we are bound to accept the verdict of guilty under Sections 147 and 148 inasmuch as the learned Sessions Judge accepted the verdict to that extent and that the only question open to us is as to whether we should accept the verdict of the Jury on the charge u/s 302/149 or we should accept the opinion of the learned Sessions Judge as regards the said charge, and reliance has been placed upon the decision of a Division Bench of the Calcutta High Court in Emperor v. Ananda Charan Roy 39 Ind. Cas. 695 : 21 C.W.N. 435 : 18 Cr. L.J. 551. In my opinion this contention is not sound. u/s 307 of the Code of Criminal Procedure, in dealing with a case submitted to the High Court under this section the High Court can exercise all the powers which it may exercise in an appeal. It has to consider the entire evidence in the case and has to come to a finding of its own upon that evidence, both on questions of fact as well as on questions of law. No doubt it has to give due weight to the opinions of the Sessions Judge and the Jury, but the High Court is not bound by the verdict of the Jury. The High Court on a reference u/s 307 combines in itself the functions both of the Jury and of the Judge and is entitled to come to an independent finding of its own and is not bound to accept the verdict of the Jury in so far as it has been accepted by the Sessions Judge. There has been no conviction of any of the accused persons on any one of the charges framed against them. If the contention of the learned Government Pleader be accepted the result would be that the accused persons against whom a verdict of guilty has been returned on some of the charges will have no remedy. They cannot appeal inasmuch as there is no conviction, I am of opinion that the whole case is open to us for consideration. In the case of Emperor v. Ananda Charan Roy 39 Ind. Cas. 695 : 21 C.W.N. 435 : 18 Cr. L.J. 551 the Sessions Judge accepted the verdict of the Jury as to some of the accused persons and disagreed as to others and the reference to the High Court was confined only to the verdict with which the Sessions Judge had disagreed and it was held that by this limited form of reference the High Court was precluded from considering the entire evidence on the record and that on such reference all that the High Court had to decide was whether the verdict of the Jury on the charges as to which there was disagreement between the Judge and the Jury was a reasonable verdict which a body of reasonable men could arrive at having regard to the evidence bearing on those charges. The Sessions Judge had acquitted the accused persons in respect of whom he had accepted the verdict of the Jury and the High Court was clearly precluded from considering the case of those accused persons who had been acquitted in the present case the letter of reference itself shows that the whole case has been referred to us.

The facts of the present case are shortly these: The prosecution story is that on the 24th February, 1927, just before sunset the deceased Jaijai went out to see his gram field from which gram had been stolen on previous days. Harihar Mahto, the father of the deceased, was sitting in the open space in front of his darwaza and Mangar Mahto, son of Birbal Mahto, Deolal Mahto and Ram Khelawan Mahto (P. Ws. Nos. 8, 9 and 10) were sitting in his dalan. Jaijai Mahto came out from the house and went to see the gram filed. Harihar heard the voices of the accused Wazira Mahto and Murat Mahto inciting people to commit an assault and he also heard the hue and cry of a large number of men. He, therefore, ran, followed by the men who were sitting in the dalan, and arrived at the gram field and found that two of the accused Tetar Mahto and Sukhari Mahto were uprooting the gram crops from the field. He also saw the accused Wazira Mahto armed with a lathi, Murat Mahto also armed with a lathi, Ramsaran Mahto and Sadho Mahto armed with swords, and Etwarchand Mahto and Birichh Mahto armed with spears; Anant Mahto armed with a sword and Ramkishun Dusadh armed with a pole-axe and his son Raghoo Dusadh armed with a spear and Ramchandra Mahto also armed with a spear were chasing his son Jaijai. They chased him to the adjoining field which belonged to one Panchkauri Mahto and there Daroga Mahto and Etwarchand Mahto struck him with spears and Ramsaran Mahto and Anant Mahto struck him with swords. Jaijai Mahto died instantaneously. Murat Mahto gave a lathi blow on the shoulder of Harihar. The accused persons thereupon ran away towards the south leaving the uprooted gram in the field.

This occurrence, as I have stated'' above, is said to have taken place just before sunset. At 7 30 p.m. the accused Ramkishun Dusadh, who was the chaukidar of the village, went to the Police station at Poonpoon and gave an information which was recorded in the station diary. This information is thus recorded in the diary:

To-day Wazira Mahto of Basuhar has cut one branch of pipal tree. Harihar Mahto of the village says that the pipal tree belongs to him and that he will not let the wood (branch) be removed. So both the parties are about to commit a breach of the peace. So I have come to lodge information.

This information was recorded by the Writer Head Constable Serajuddin Ahmed (P.W. No. 16) who was then in-charge of the Police station as the Sub-Inspector was on leave.

The Writer Head Constable says that after recording the chaukidar''s information he started for the village Basuhar and arrived there at 9 3J p.m. the distance being about four miles. The chaukidar Ramkishun was taking him to the pipal tree when he saw a light and heard weeping and he went to the place where the light was and there he found a dead body lying in a field Harihar, the father of the deceased, was found there by the Writer Head Constable along with three other men, Achraj, Bisesar Mahto and Mangar Mahto, son of Birbal. Harihar was weeping and saying that his son had been murdered so the Writer Head Constable began to enquire about it. He says that he wrote out the First Information Report on the information given to him in the field by Harihar at 9-30 p.m. He says that this First Information Report was written on plain paper as he had not got the printed form with him. The Head Constable had, however, sent a constable, Ram Birichh, to the Police Station to fetch the post mortem challan book in order to send the dead body for post mortem examination. He did not, however, tell the constable to fetch the First Information Report book also from the Police Station. He says he finished the recording of the First Information by 12-30 in the night and he took the signatures of Bisesar and Mangar as witnesses to the First Information Report. As the writing of the First Information Report was finished after mid-night he dated it the 25th February. After that he prepared the inquest report and despatched the dead body at 6 A.M. on the 25th February. He did not examine the witnesses named in the First Information until the afternoon of the 25th February at 3-15 p.m. He found the branch of a pipal tree in the dalan of the accused Wazira Mahto. The branch was freshly cut from the tree. He was of opinion that the branch was not cut from the pipal tree which had been pointed out to him as the tree about which the dispute was, as related by the chaukidar in his information. He then went back to the Police Station and despatched the First Information at 6 p.m.

The First Information given by Harihar names all the fourteen accused persons as being members of the unlawful assembly. The part assigned to Tetar and Sukhari was that they were uprooting the gram crops from the field. Four blows were stated to be struck, two by Daroga and Etwarchand with spears and two by Ramsaran and Anant with swords. No motive was given for the assault and the idea conveyed was that the assailants were either stealing the gram crops or there was some dispute as regards possession of the gram field. The three eye-witnesses Manger, son of Birbal, Deolal and Ram Khelawan state exactly as Harihar stated in his deposition in Court. Each one of them alleged the accused persons to be armed with the same weapon as Harihar alleged them to be armed and each one of them stated that he saw Daroga and Etwarchand striking Jaijai with spears and Remsaran and Anant striking him with swords and they all supported Harihar in his story as regards the uprooting of the gram crops. The question is whether this story can be believed,

The defence version is that there was a dispute as regards the costs of certain earthworks in connection with the repairs of certain embankments. Wazira as well as Harihar and some of the other accused persons and some of the prosecution witnesses are co-sharer maliks of the village Basuhar. It appears that Wazira was getting the embankments repaired. Harihar and his party refused to pay their share of the cost of the repairs, On the 24th February Wazira Mahto had caused a branch of a pipal tree to be cut for the use of the beldars as fuel. This pipal tree stood on an embankment and belonged to Sita Thakur (P.W. No. 6) who was a ryot of the village. The maliks also appear to have some share in the tree and Harihar objected to the removal of the logs cut from this tree. Wazira Mahto in his statement in the Sessions Court stated as follows:

"Earthwork (gilandazi) was being done. Harihar, Deolal, Mangar, Achaibar, Ishwar, Ramkhelawan, Achraj and Mangar II (I mean all the prosecution witnesses) refused to contribute the proportionate share of the cost. I had made arrangements for the gilandaz: I had a branch of Sita Hajam''s pipal tree cut for the beldar''s use as fuel. The branch was cut in two pieces and I told my servants to take the two pieces to my house. I came to know that Harihar and others were opposing the removal of the wood. I did not go there, but I told my servants Sahthu and Ramraj and 10 to 12 beldars and 5 or 6 ploughmen to go (there) and bring the wood forcibly. I heard later that they had gone there with weapons. I myself did not go. In the evening I heard that Jaijai had been killed. I had sent my men two hours before sunset. In the evening I had seen Ganpat Lal sitting at Harihar''s dalan. Ganpat is my enemy. He had filed a false case against me. I did not assault anybody nor did I go to the field?

This is virtually the defence of all the accused persons in the present case. The question is which version can be accepted. The prosecution version as regards the story of uprooting the grain crops seems in creditable. The title of Harihar and his possession in respect of the gram field is admitted. There is no suggestion that there was any dispute as regards the gram field. It is impossible to believe that Wazira Mahto and others who are co-sharer milks would go to steal the gram and that in order to do so they went in a body armed with weapons. I cannot believe the story told by the prosecution witnesses that the assault took place on account of the uprooting of the gram crops. On the other hand it appears from the deposition of the prosecution witnesses themselves that there was some dispute between Harihar and Wazira as regards irrigation three or four months before the occurrence. There was nothing serious about it and irrigation was allowed to take place as desired by Harihar. The evidence goes clearly to prove that gilandazi work was going on at the time when the occurrence took place. The beldars were in the village and Harihar and Daolal and men of his party had refused to pay their proportionate share of the cost. It is clear from the deposition of the prosecution witnesses Chamru Barhi and Chhotar Barhi (P. Ws. Nos. 4 and 5) that a branch of a pipal tree was cut on that date. Chamru Barhi says that Wazira asked him to cut a branch of a pipal tree which he pointed out and that he told him that the wood was required for fuel for some beldars who were repairing the embankment. So he cut one branch in Wazira''s presence and finished the cutting by 10 A.M. and that Chhotar Barhi (P.W. No. 5) helped him to cut the branch. He further says that the branch cut may have been two feet thick and he cut it into two pieces to facilitate removal. Chhotar''s statement is to the same effect. The next witness Sita Thakur, however, attempts to make out that the pipal tree had been cut the previous day and that Jaijai was killed the next day. He was, however, not at home on that day and the learned Government Pleader has admitted that the pipal tree was cut; on the day of occurrence and not on the previous day.

This evidence clearly corroborates the statement made by the chaukidar in his information as recorded in the station diary and this seems to be a reasonable cause of dispute. According to the prosecution evidence the chaukidar Ramkishun was among the assailants and after Jaijai had been killed, Ramkishun is said to have at once left for the Police Station. His information was recorded at 7-30 P.M. Therefore, this is the earliest information we have got after the occurrence and there does not appear to be sufficient time or opportunity for Ramkishun to concoct a false story. If he was one of the assailants, then his object would have been to make a statement exculpating not only himself but also the members of his party. The statement made by him no doubt exculpated him but it did not exculpate Wazira Mahto and the others. On the other hand, the delay in recording the First Information was such as to give ample opportunity for concocting a false story. Nobody went to the Police Station to lodge the information and even if we accept the statement of the Writer Head Constable that he commenced recording the First Information at 9-30 p.m. Harihar had ample opportunity for consultation and for developing a false case. It is contended that, as a matter of fact, the First Information was not recorded at 9-30 p.m. but was recorded the next morning. The conduct of the Writer Head Constable is certainly open to comment. The explanation offered by him for not forwarding the First Information until 6 p.m. the next day is hardly satisfactory. When he sent the constable to fetch the post mortem challan there was no reason why he should not also have asked the constable to fetch the First Information register. Again the evidence as to when the witnesses Bisesar and Mangar, son of Birbal, signed the First Information is not quite clear. Bisesar has not been called. Mangar in his deposition says that he had gone home from the field where the dead body lay and that he did not visit the field again that night and that he met the jamadar again in the same field the next morning. Then the conduct of the Head Constable in not examining the eye-witnesses until late in the afternoon of the 25th February is also open to comment. Thus ample opportunity was given to Harihar and his men to concoct a story not only in the First Information but also in the statements of the witnesses during the Police investigation. On the other hand, the defence version is not only reasonable but is supported by what has been elicited in cross-examination from the prosecution witnesses and I am inclined to believe that the occurrence took place not on account of the uprooting of the gram crops but in connection with the removal of the logs of wood cut from the pipal tree. It is true that Jaijai was assaulted in the field where his dead body was found but the distance of the field from the pipal tree is not great and if there was a dispute in which both parties had collected mobs and one party went fully armed and one person belonging to one of the parties was chased and killed it is impossible to believe the prosecution story as to who chased and killed the deceased. As remarked by the learned Sessions Judge it would require a great power of observation in the eye-witnesses in order to enable them to say as to who struck the blows on which part of the body. Mangar, Deolal and Ramkhelawan who profess to be eye witnesses cannot be believed on the point. Having regard to the story told by them as to how they went to the gram field from the darwaza of Harihar it seems unlikely that they would be in a position to notice as to who the rioters were and how they were armed

If we disbelieve the story as told by the prosecution witnesses it becomes impossible to convict the present accused persons on any of the charges brought against them. The mob must have collected somewhere else and the evidence on the record is not sufficient to show as to who were the members of the mob and who struck Jaijai The presence of the beldars, their running away from the village after Jaijai had been killed the dispute relating to the contribution of the cost of the repairs, the cutting of the pipal tree on that day, have all been spoken to by the prosecution witnesses themselves and they support the defence version and I am of the opinion that the prosecution witnesses have not given a true account of the circumstances under which Jaijai met his death. On a consideration of the entire evidence in the case and after paying due regard to the opinion of the Sessions Judge and of the Jury I am of opinion that the present accused persons have not been proved to be guilty of any of the offences with which they have been charged. I must therefore, acquit them and direct that they be at once set at liberty. The reference is discharged.

Allanson, J.

I agree. There are a number of circumstances in this case the cumulative effect of which indicates to my mind that the story told by the prosecution cannot be accepted. The deceased was a son of a co sharer malik in the village. The murder took place just before sunset in the month of February, yet by 9-30 P.M. when the Head Constable arrived as a result of the chaukidar''s report no one had even started for the thana. The eye-witnesses (other than he informant) were not examined till the next afternoon The Head Constable says he sen for them earlier in the day, but they could not be found. One of them had signed the First Information Report the previous night. The story of the uprooting of the gram is difficult to believe, and the suggestion that it was done in order to decoy the deceased to the spot does not commend itself to me; for the field was within hearing of the dalan of the deceased, and it was the four persons at the dalan who were the eyewitnesses. It is possible that the chaukidar did see the occurrence; it is not an uncommon practice for a chaukidar to go to the thana after an occurrence has taken place and pretend that he had started before the riot began. But if the chaukidar was one of the rioters, he would probably tell a story which would exculpate his fellow-rioters. It is probable that he has been made an accused because of what he stated about the cutting of the pipal branch. That incident, it is true, certainly does not supply an adequate motive for a murder. Bat it is noteworthy that within about two hours of the occurrence the chaukidar mentioned the cutting of the branch at, the thana That a branch was cut is proved from the prosecution evidence. It is probable from what was found on the spot that the deceased was killed where the body was found. But if one disbelieves the story of the prosecution as to what led up to the murder, it is quite impossible to be sure how many persons or what persons actually took part in the occurrence. The failure of the relations and friends of the deceased to take any steps to report the occurrence until the Head Constable arrived at 9 30 P.M. and the failure of the eyewitnesses to come forward till the next afternoon to have their statements taken have given an opportunity for the defence to argue that the cause of all this delay was the necessity of concocting a story and instructing the witnesses.

The Head Constable, whether through inexperience or through incapacity, has certainly given occasion for comment. He took with him carbon paper and he drew the First Information in quadruplicate with the appropriate headings, His reason for not despatching it till the next day at 6 p. M, is that he had not the printed form with him and also did not know what serial number to give to the case. He sent during the night a constable back to the thana, four miles away, to fetch the post mortem chalan book, but he says he did not ask him to get the First Information book, as he thought the constable would not be able to pick it out from other books. It is just a little difficult to accept an explanation of this kind. I would expect a constable to know by sight the appearance of a First Information book, In any case it was unnecessary to wait for the printed form and for the serial number. The defence have taken the opportunity of this officer''s delay in sending the First Information Report to allege that the First Information was written later than it purports to be. In fairness to the Head Constable it is only right to say that if he had wanted to act dishonestly, he could have put forward the hour at which he took the statements of the eye-witnesses. I have no reason to suppose that he put a wrong hour down in the First Information.

I have no doubt that some of the accused persons are guilty. But that there was an unprovoked attack on the deceased in the circumstances described, I do not believe. The real facts have not come out and it would be unsafe to convict any of the accused persons as there can be no certainty as to who were present and who were not or as to who were eyewitnesses of the murder and who were not.