Ghyasuddin Ahmad and Others vs Emperor

The four appellants were tried by the Sessions Judge of Purnea on a series of charges of which one charge u/s 148, I. P. C, was common to all the accused while individually Ghyasuddin was charged u/s 302 for the murder of Jainarain. Muhammad Ishaque was charged u/s 324, I. P. C, for causing hurt to Pearey Mohan, and the other two appellants u/s 324 for causing hurt to Degdhu Singh. There was a charge against appellants 2 to 4 u/s 302 read with Section 149, I. P. C, in respect of the killing of Jainarain by a member of the unlawful assembly which included these accused persons. The common object alleged in the rioting charge as framed by the committing Magistrate was:

to prevent Jainarain Singh from reaping his tori crop and to assault Jainarain and his party.

For some reason which is not explained at the trial the words, "to assault Jainarain and his party" were deleted at the instance of the Public Prosecutor. The charge was not an improvement. It opened the way for the defence to contend, as it has been contended before us at length, that the common object failed and the accused were entitled to be acquitted of the charge of rioting unless the prosecution could affirmatively establish that the crop was sown by Jainarain. We shall deal with that contention in due course; but there would have been no room for it at all had the learned Sessions Judge allowed the charge to stand as originally framed.

The defence on the merits was twofold: first, that the crop was not grown by Jainarain but by Udro Singh, a tenant of Ghyasuddin, and that though in defence of his rights an assembly of men did collect, whatever they did was done in the exercise of the right of private defence. Secondly, that none of the appellants was a member of that assembly or took part in the occurrence. Defence evidence was given on both points.

The Sessions Judge, in agreement with all the assessors, found that the specific charge against Ghyasuddin of killing Jainarain with his own hand was not proved and acquitted him on that charge. All the other charges he found established, disagreeing with all four assessors.

We were addressed for days on the question of title and possession; but before setting out to explore that large field of inquiry, it will be convenient first to focus the points for decision; the question of title and even of possession is only relevant in so far as it has a bearing on those points. Had the charge stood as originally framed, it would have been obvious and incontestable that there were then but two questions, namely: (a) Who took part in the attack? and (b) Had they acted in, and within the limits, of the right of private defence?

The charge as it now stands includes or implies the following averments of fact. The accused took part in an assembly; their object was to prevent Jainarain from reaping a tori crop; that crop was Jainarain''s; in the circumstances the assembly was unlawful; and force and violence were used. Now suppose the prosecution evidence establishes the first two propositions, but not the third; then the question is whether the fourth proposition, that the assembly was unlawful, follows from the first and second in the absence of the third proposition. When the charge is thus analyzed into its essentials, it is manifest that under the circumstances stated the assembly must have been unlawful unless it acted in the exercise of the right of private defence. It is contended that if proposition No. 3 is excluded the charge becomes a different charge, to which the accused were not called on to plead and on which therefore they cannot be convicted. But the contention is unsound. If the prosecution has not proved all the facts which it was proposed to prove, but has proved some of those facts, what we have to see is whether those facts which have been proved amount to the offence charged and whether the frame of the charge gave the accused sufficient notice of the case to be met. From this point of view we feel no difficulty in holding that as soon as the prosecution has established the first two propositions, the facts are within the statutory definition of "rioting" and the whole conduct of the case leaves no doubt whatever that the accused had notice of the place, time and manner in which the riot was alleged to have been committed.

That being so, members of the assembly are guilty and can be convicted of rioting unless the acts were done in the exercise of the right of private defence. Unless a right of private defence is established, a claim (even bona fide) of title or a claim (even bona fide) of possession will avail nothing. At one time it was held that there was a distinction between forming an assembly to enforce a right or supposed right within the meaning of Section 141 (fourthly), I. P.C., and forming an assembly forcibly to maintain an existing right and that an assembly will be considered not unlawful unless the prosecution could show affirmatively that it was an assembly of the former description and not of the latter. The decisions in which that view was expressed were considered at length in Ganouri Lal Das v. Queen-Empress [1889] 16 Cal. 206 and this line of argument which as the Judges pointed out "possesses an attractive subtlety," was definitely, and one would have thought conclusively, negatived.

So far as the Patna High Court is concerned, we are not aware of any decision in which the principles enunciated in Ganouri Lal''s case [1889] 16 Cal. 206 have been dissented from. Fouzdar Rai v. Emperor [1917] 3 Pat. L.J. 419 was similar in its facts to several of the cases in which the "attractively subtle" argument had been raised. The report does not show whether it was raised in argument, but the Judges in deciding the case clearly proceeded on the finding that the accused had established a right of private defence and had not been shown to have exceeded it. Nevertheless in the mofussil Courts this unsound argument is constantly revived and often embarrasses the trial. It seems to us necessary to reaffirm the principle laid down in the case of Ganouri Lal Das v. Queen-Empress [1889] 16 Cal. 206 for the guidance of the Courts in this province.

There has been an attempt in the case before us to secure findings on the question of title which Ghyasuddin or Jalil, as the case may be, would doubtless have used as evidence in subsequent disputes. Now the proper place, for such findings is in a regularly constituted litigation inter partes and though there may be cases in a criminal Court where a question of title bears so directly on the matters to be tried that expression of opinion on it is unavoidable, we would point out that such expressions of opinion should be limited to cases where they are necessary and to points which it is necessary to determine. Following this rule we shall express neither agreement nor disagreement with what the Sessions Judge has said regarding title; we shall not record a finding whether Jainarain''s possession has or has not been affirmatively established by the prosecution, The point we have to determine is whether it is proved that Udro Singh had grown this tori crop and that his possession required to be protected by force against the offence of theft on the morning of 19th January when Jainarain began to reap the crop. On this point the defence case was that the management and cultivation of the holding were done by Udro, a boy of 14, and his uncle Nandu. The defence examined no independent witness; this in itself need not have been fatal to their case for it was perhaps hardly to be expected that independent witnesses would be forthcoming but the defence after putting Udro in the box deliberately abstained from examining Nandu, the more competent witness of the two and the man who should have been the best witness of all to prove possession. No explanation is given for not calling him. Indeed he was present in the Court compound during the trial.

The party on whom the burden of proof lies cannot expect to succeed if he fails to produce the best evidence that he has available, and it must be held that the defence have failed to establish that the parties who committed the riot acted in private defence of the property of Udro Singh. (After discussing the evidence, the judgment concluded.) The result is that the appeal of Ghyasuddin is allowed and he is acquitted. The convictions of the other appellants under Sections 148 and 302/149, I. P. C, are confirmed; their convictions u/s 324 are set aside. The sentences of seven years'' rigorous imprisonment each are on the side of severity and are reduced to five years ''rigorous imprisonment each.