Gendo Uraon and Others vs Emperor

Allanson, J.—The 21 petitioners have been convicted under Sections 147 and 353/34, I.P.C. and sentenced to six months'' rigorous imprisonment under each section, the, sentences to run consecutively. The petitioner Gendo has also been fined Rs. 50.

On the 5th November 1926, an Excise Inspector and Sub-Inspector with a number of excise subordinates went to make house searches for illicit liquor and illicit distilling apparatus in village Haphua. The accused, who are all Oraons, belong to this village. The houses of Gendo and Mirwa, accused, were searched and also the house of one Dukhi, and illicit liquor or distilling apparatus were found in each of these houses. While the search was going on in the house of the accused Somra there was an alarm, and a mob of 40 or 50 men started smashing and removing the articles which had been already attached and which had been left in charge of an Excise Head Constable. The Excise Inspector and his men remonstrated, but they were attacked by the excited mob and nine of them were injured and the whole party had to run away. The only names that could be given in the first information were those of the persons whose houses had been searched. But at subsequent test identifications a number of persons, including the present petitioners, were, identified by various members of the excise party.

The prosecution witness who were not previously acquainted with the petitioners were not in a position to say what overt act each person did, that is which of them smashed the handis or which of them struck which of the excise party. They could only identify them as among the rioters. The learned Judical Commissioner on appeal ignored the evidence of two witnesses, who in their depositions merely said that at the test identification they identified certain persons. This was really a faulty record by the Magistrate. The witnesses ought to have said that they identified these persons as among the mob. No defence witnesses were examined.

Sir Ali Imam, on behalf of the petitioners, urged that as the occurrence took place in the village, and as the excise officers were picketing certain houses and not allowing egress and ingress, the villagers must have been looking on, and no one can be convicted unless an overt act is proved against him. I find no evidence or suggestion that among a crowd of onlookers certain persons suddenly formed an unlawful assembly. The smashing of the handis and the subsequent attack on the excise officers was, according to the evidence, the work of a number of men. Moreover in an occurrence of this kind, in which the witnesses did not know from before the persons taking part, but were only able to pick them out at a subsequent test identification, clearly it would be the persons nearest to the witnesses who would be likely to be identified. It would be curious if, instead of identifying as among the rioters these persons whom they really saw in the unlawful assembly, the prosecution witnesses should have picked out innocent onlookers who would presumably be at some distance. Any person who, when the smashing of the handis began, intentionally joined or remained in the unlawful assembly was a member of that unlawful assembly Such a person could not help being aware that the action of those men was unlawful.

Any person who has innocently got into a crowd and is unable owing to pressure of numbers to escape from it, of ocurse is not a member of the unlawful assembly; but he would have to make out his case on that point. There is no question here of such a crowd that innocent onlookers could not get out of it. No one who intentionally joins or continues in an unlawful assembly can be allowed to say that he was merely a harmless spectator. He must prove that he was there owing to no fault of his own and he could not get out of the crowd. The whole object of the provisions of Section 142, Penal Code, would otherwise be defeated. There is nothing to show that any of the accused were innocent onlookers or that the witnesses have identified as rioters persons who were merely looking on. None of the accused pleaded he was an innocent onlooker.

The other point argued on behalf of the petitioners is that they have really been convicted twice over for the same offence. But the common object of the unlawful assembly was to compel by criminal force the excise officers to stop the house searches, and this was effected by smashing up the handis, etc. When the excise officers expostulated with the rioters, they proceeded to attack them. The common object of the unlawful assembly was not to assault the officers, but the occurrence subsequently developed into such an assault. There can be no doubt that the assaults were made in furtherance of the criminal intention of the accused, namely, to drive away the excise officers. It was held in Prakash Chandra Kundu v. Emperor [1914] 41 Cal. 886 which was also an excise case, that separate convictions are legal under Sections 147 and 353, even when the common object of the unlawful assembly was to assault the public servants. The persons actually assaulting could also be sentenced u/s 353.

In the present case the assault on the public servants was not the common object of the unlawful assembly The assault took place later; but from the evidence it is clear that it was done in furtherance of the common intention of the mob and each of the accused is liable u/s 353/34. As was remarked in the above case, the question is rather an academic one, as the sentences passed could have been given u/s 147 only.

The aggregate sentences are not excessive The assaults on the excise officers, the interference with their work, and the destruction of the evidence of illicit distilling that had been detected were quite unjustifiable. The occurrence was of a serious nature and the work of excise would be brought to a standstill and their persons endangered, if they were liable to be attacked with impunity by a large body of aboriginals when they go to make searches in a village.

The application is rejected.

Sen, J.

I agree.