Hari Lal and others vs Emperor

Courtney Terrell, C.J.—This is an appeal by three persons Hari Lal, Mahtab Lal and Suleman Khan, who have been convicted by a jury of a charge under S. 379 of theft of grain from a khalihan, and the same jury acted as assessors in a charge tried by the learned Sessions Judge of rioting. They have been convicted by the jury, and they have also been convicted by the learned Judge with the approval of the assessors and sentenced on each of the charges to one year''s rigorous imprisonment, the sentences to run concurrently.

On appeal against the verdict of the jury it is necessary for the appellants to show some defect in the charge to the jury by the learned Sessions Judge. The facts of the case may be very briefly narrated. In village Nawa there is a plot of land upon which stands the khalihan in question. The prosecution case was that this khalihan stands on a plot which is part of the property of one Kamta Prasad. And the prosecution case further is that two tenants under Kamta Prasad had reaped the crop from the surrounding land of which they had obtained a temporary occupancy from the landlord and had stored the grain in the khalihan where it was awaiting division, when a mob of persons including the three appellants came to them, tied up the two tenants and took away the grain.

The story set up by the accused persons was that the khalihan in question does not stand on the land of Kamta Prasad, but stands on another piece of land in which they claimed an interest; that they had reaped the grain in question, the grain in question is their grain and they only took it away in the ordinary course of business and that there was no such incident as is related by the prosecution.

Therefore, the main element in the case was as to where this particular khalihan in question actually stands. Does it stand on Kamta Prasad''s land and had he given a temporary tenancy to these two tenants, or docs it stand upon the property in which the accused party are interested ? In order to solve this problem the prosecution employed an Amin, who went down with one of the persons of their party and the Sub-Inspector. He took with him a tracing of the survey map containing indications of certain fixed points. The map also showed the boundaries of the various plots of land and one plot of land was No. 71. If the khalihan, in question stands in plot No. 71, then it is part of Kamta Prasad''s property. If it stands in plot No. 77, then it would be the property in which the accused claimed an interest. The Amin having identified on the land the fixed points indicated on his map chained out distances from those fixed points to the khalihan. I may mention that the position of the khalihan on the actual ground is beyond any dispute. The only question is whether it stands on land belonging to the prosecution, or whether it stands on the land belonging to the defence, and it has been shown beyond the slightest doubt that the khalihan stands in the property of the prosecution party. This really is the crux of the case upon its merits. The establishment of this fact really was destructive of the defence case. Inasmuch as there is an appeal from the judgment of the learned Judge sitting with the members of the jury as assessors to deal with the charge under S. 147, Penal Code, it was permissible for the learned Advocate for the appellants to go into the facts. He has done that with great persistence and industry, and I must be forgiven for saying, at great length, but his customary courtesy and good temper has disarmed the natural impatience of the Court.

However the main fact of the defence having been destroyed, there is very little comment to be made on any other points in the defence. Perhaps the other principal point, which may be mentioned is the contention that the two alleged tenants, who were tied up and whose paddy was taken away, were not likely to be tenants of Kamta Prasad in reality. But not only have they given their own evidence, but there is the evidence of the gomashta and the barahil of Kamta Prasad and they support the fact that these men, however humble they may be and however little they may have had to deal with the actual conduct of agriculture were in fact given this tenancy in question.

The evidence as to the actual occurrence has also been criticised and was criticised in the lower Court by minute comparison of the statements of the witnesses as given in Court and the statements as recorded by the Magistrate in the committing Court and, as is usual in such case, a laborious attempt was made not only in cross-examination but in comment to show that these discrepancies rendered the prosecution story unworthy of belief. The learned Judge has delivered a most admirable charge to the jury and amongst the observations, which he made, were some which, are worthy of quotation and might often be used'' as a model by all criminal Courts:

The prosecution and defence witnesses have been subjected to a long and searching cross-examination. This has given you a great advantage in studying the witnesses and forming your own impression as to whether they were telling the truth or not. These impressions are of immense value, and you would do wrong by deciding this case merely on a consideration of inconsistencies. These inconsistencies have been put before you with great skill by the learned advocate for the defence. In considering them there are many things to remember. Your experience in this Court will have shown you some possible causes for inconsistencies. One is the ignorance of witnesses. They speak in a dialect which is difficult for us to understand, and they find it almost as difficult to understand what we say. They reply at times without thinking and say "Yes" to leading questions without understanding the implications of the questions and at times without understanding the question themselves. You have seen me more than case refuse to record the reply of a witness on the ground that he did not understand the questions put. The possibility is all the greater because the Committing Magistrate and the Sub-Inspector were not concerned with making a detailed record of the statements of the witness, but were merely making investigations leading up to the trial in this Court. Then there is the difficulty that the record is prepared in a language which is not the language the witness spoke in. This brings in the likelihood of mistake through wrong translation. To give an instance, I suggest that the Magistrate''s record, showing the witnesses as having said that Tegwa''s heads and feet were tied is a mistake in translation. You noticed that the witnesses used the term "mushuk" when speaking of the tying. This may have been translated by the Magistrate as being tied by the hands and feet, and the mistake having once crept in would be perpetuated throughout the record as, in a preliminary investigation, the Magistrate would not be concerned to notice carefully what each witness said, and would be satisfied if there was substantial correspondence between the statements of the witnesses.

It is very seldom that one finds in a charge to the jury, and indeed in a judgment itself, such an excellent and courageous statement of principle and the learned Judge seems to have properly performed the judicial function of controlling the cross-examination and insisting that the witnesses shall understand the question put before an answer is obtained, or before an answer is recorded. I have over and over again myself observed that cross-examination tends to be abused and the words of the advocate are recorded as the words of the witness when the witness has in fact only given an affirmative or negative monosyllable. Furthermore, the fact is not sufficiently brought home to juries and not sufficiently remembered by Judges, that the words of the witnesses are recorded by the Magistrate and by the police in a language which they do not in fact speak and therefore accurate recording is often a matter of accurate translation as well as of the rendering of sentences and the meaning of the statements of the witnesses. I would recommend the passage that I have quoted to Courts which have to deal with criminal trials as well as those which have to do with civil trials, as an admirable statement of principle.

The jury convicted the accused persons finding that they were members of the body of persons, who had taken away the grain from the prosecutors khalihan. It has been contended that the charge was defective in this respect. It is said that it was necessary to support a charge under S. 379 to prove a specific overt act in respect of each individual ultimately found guilty. The learned Judge quoted to the jury the words of S. 34. It is sometimes apparently thought that there is a difference between a charge under S. 379 and as it is said a charge "under S. 379 read with S. 34." There is in law no distinction between the charges. S. 34 is a mere statement of explanation to be attached to any section which deals with a criminal offence. Here the jury clearly found that the three appellants were members of the body which actually took up and carried away the grain. The body of persons has been found by the learned Judge to be an unlawful assembly for the purpose of taking away the grain. In those circumstances each one of the convicted persons is guilty of the offence committed by any one of them. Inasmuch as the unlawful assemblage of persons took up and carried away the grain, each one of the persons, who was a member of that unlawful assembly, is liable for that act in the same manner as if it were done by him alone. The convictions under both the sections were right and proper.

It is contended on behalf of the appellants that the charge of the learned Judge was too much occupied with criticisms and exposures of the arguments on behalf of the defence. It is quite open to the learned Judge, and indeed it is his duty, to assist the jury with his advice and certainly with his criticism provided that he warns them that it is their duty to make up their minds and if he states to them that they are not bound by his expressions of opinion and he fulfilled his duty in this case. One of the reasons for the care with which the learned Judge had to refute the arguments adduced on behalf of the defence was the very fact that these arguments were based upon the alleged inconsistencies and discrepancies brought out in cross-examination. But in nearly every case if examined properly in the light of the principles which the learned Judge summed up in the passage which I have quoted, it was necessary for him to examine the evidence with its apparent inconsistencies in the light of those principles and if the effect was to destroy the success of the cross-examination that is the fault of the cross-examination and is the fault of the case for the defence, and is in no way a defect in the charge.

In my opinion the charge to the jury cannot be assailed, and the judgment of the learned Judge upon that part of the case where he had to act with the members of the jury as assessors is equally free from defect, and this appeal fails.

Luby, J.

I agree that the appeal should be dismissed. The ground of appeal which attracted my attention was ground No. 8

That the learned Sessions Judge ought to have told the jury that it was a clear case of bona fide claim of right and so no offence was committed.

This contention seems at first sight to gain some support from a passage of the judgment in which the learned Sessions Judge remarked that a certain statement of one of the witnesses:

indicates that the accused were under the impression that the grain was of the common jagir and that Musammat Khidaijatul Kobra was entitled to a share of it.

This remark might possibly apply to some members of the mob who were not acquainted with the real facts about the store of grain; for it is in evidence that the landlord''s servants took all the villagers with them to enforce the will of the landlord. But it could not apply to the present appellants, who were the landlord''s servants and must have been quite familiar with the real facts about the store of grain, and must, have known that the crop had been grown and the grain harvested had Kamta Prasad''s tenants and not by the malik''s tenants. Another fact which finally disposed of the argument about a "bona fide claim of right" is this that the malik''s men (including the three appellants) removed the whole store of grain that was found on the threshing-floor; whereas the malik could not be entitled to more than half the grain, even if the crop had been grown by her tenants. So the action of the malik''s men is seen to be sheer tyranny which cannot be justified on any ground.