Jamadar Singh and Others vs Emperor

Agarwala, J.—The five appellants and two others were tried by a jury in the Court of the Additional Sessions Judge of Patna on charges of rioting and murder committed in prosecution of the common object of the rioters. The common objects alleged in the charge were to assault Puran Singh and Rajballam Singh and to enforce a supposed right to plots Nos. 1224 and 1225 by cutting the masuri crop standing on them. The jury unanimously acquitted two of the accused persons and unanimously found the appellant, Jamadar Singh, guilty u/s 326, Kamla Singh u/s 324, Hari Singh u/s 326 and Pardip Singh u/s 323, Penal Code. By a majority of 8 to 1 they found Jamadar Singh, Hari Singh and Kamla Singh guilty u/s 148; Hari Singh, Kamla Singh, Pardip Singh and Jhonti Singh guilty u/s 326 read with Section 149 and Pardip Singh and Jhonti Singh guilty u/s 147. The learned Judge accepted the jury''s verdict and sentenced Jamadar Singh to six year''s rigorous imprisonment u/s 326, Pardip Singh to one year''s rigorous imprisonment u/s 323 and to two years u/s 326 read with Section 149. Jhonti Singh was sentenced to two years u/s 326 read with Section 149, Kamla to three years u/s 326 road with Section 149 and to three years u/s 324. Hari Singh was sentenced to four years u/s 326 read with Section 149 and also u/s 326 and sentenced to four years'' rigorous imprisonment. Where more than one sentence was imposed the sentences were directed to run concurrently and no sentences were imposed in respect of the offences under Sections 147 and 148, Penal Code.

The occurrence which gave rise to the prosecution was a dispute between the appellants and the prosecution party with respect to plots Nos. 1224 and 1225 in village Akauna, tauzi No. 337. The fathers of Puran Singh (P.W. 1) and Rajballam Singh (deceased) had a 1 anna 6 dams odd proprietary share in this tauzi. Their share included bakasht and raiyati lands. The two plots in dispute, formed part of this bakasht land. In 1920, the bakasht land was given in ijara to one Kewal Kishun Singh in consideration of a loan of Rs. 2953. At the same time the proprietary interest was given as security for another loan for Rs. 1000 for which a simple mortgage was executed. In 1933, the mortgagee sued on the simple mortgage and obtained a decree in 1935, which was made absolute in 1938. The decree was passed ex parte as against the mortgagors and on contest against other members of the mortgagors'' family. Puran Singh and Rajballam Singh applied to set aside the ex parte decree but their application was disallowed. The mortgaged property was put up for sale and purchased by the mortgagee, Kewal Kishun Singh, and possession was in due course delivered to him.

The case of the prosecution is that despite these transactions and the execution sale the mortgagors remained in possession of the bakasht lands as bataidars of Kewal Kishun Singh. The case of the appellants, on the other hand, is that from time to time the two plots in dispute were settled with them as bataidars and that in 1939 Kewal Kishun Singh executed a dawami bandobasti patta in favour of the appellant Pardip Singh under which he obtained possession. Such being the nature of the dispute between the parties, on 6th February 1941, Pardip Singh reported at the police station that Puran Singh and others were interfering with his harvesting of the masuri crop standing on plots Nos. 1224 and 1225. On receipt of this information the Assistant Sub-Inspector, who was in charge of the police station at the time, proceeded to the village with two constables and two chaukidars. When this party arrived at Akauna they found the appellants and their helpers in the course of reaping the crop standing on the two plots. The Assistant Sub-Inspector says that he ordered them to stop cutting the crop and this order was obeyed. He then sent one of the chaukidars, Loknath, to fetch Puran Singh and Rajballam Singh. What happened thereafter is in dispute between the parties. According to the prosecution Puran Singh and Rajballam Singh arrived at the fields unarmed and were immediately attacked by the appellants with bhallas and garasas. A crowd of villagers numbering 40 or 50 then attacked the appellants.

Another version is given by the Assistant Sub-Inspector and a constable and the chaukidars who were with them. These witnesses stated that Puran Singh and Rajballam Singh and a number of other armed men arrived but before they reached the fields the appellants, in obedience to a direction from the Assistant Sub-Inspector, had left the disputed fields and were going away. The appellant Jhonti Singh, who is a man between the ages of 70 and 75, was not making as rapid progress as the others; he was attacked by Puran Singh and Rajballam Singh and the people who were with them. The medical evidence discloses that he had as many as six injuries on his person; an incised wound on his right forearm, an incised wound on his head and five other wounds on the head. Seeing this old man''s life to be in danger the appellants then turned and attacked Jhonti''s assailants. The Assistant Sub-Inspector, the constables and the chaukidars with them were not examined by the prosecution. They were examined as court witnesses and have supported the version which I have given above. On the other hand, the prosecution has examined a number of witnesses to support the version on which they rely. The learned Sessions Judge, in a charge in which the facts are fully stated and in which both versions are given in detail, after referring to the evidence of the Assistant Sub-Inspector and the court witnesses, directed the jury as follows:

It is for you to judge whether the accused had in the circumstances the right of private defence, and you have also got to consaider whether the right of private defence was exceeded.

This, in my opinion, was a misdirection. It is the duty of the Judge to decide questions of law and the jury to decide questions of fact. As stated in Sub-section (a) Of Section 299, Criminal P.C., it is the duty of the jury to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the charge, to be returned. It was the duty of the Judge, in the present case, to direct the jury that if they accepted the version of the occurrence deposed to by the prosecution witnesses and were satisfied that possession was with the prosecution, no right of private defence arose; but, if they accepted the version of the occurrence given by the court witnesses, then the appellants were entitled to the benefit of the right of private defence. By directing them that it was for them to judge whether in the circumstances the accused had the right of private defence was to leave to the jury not only a decision of the question of fact which arose but also the question whether in the circumstances of the case the accused were entitled to the benefit of the plea of private defence. That was not a correct direction in law. The learned Judge himself had to decide whether the right of private defence arose if the jury accepted the version given by the police officers examined as court witnesses. In my opinion, so far as the convictions u/s 326 and Section 326 read with Section 149 and Sections 324 and 323 are concerned the charge of the learned Judge was defective in law. There remains the charges under Sections 147 and 148. The learned Judge explained to the jurors Sections 141 and 146, Penal Code, and then stated:

In the present case it is alleged by the prosecution that an unlawful assembly of more than five persons was formed for assaulting Puran Singh and Rajballam Singh and for enforcing the right to plots Nos. 1224 and 1225 and some of the members of that assembly actually assaulted Rajballam Singh and also Puran Singh. If this ease be believed then all the persons who had formed that assembly must be guilty of rioting.

If the only version which the jury had had to consider was the prosecution version no exception could have been taken to this part of the charge. But, as I have already shewn, there was before the jury another version of the facts deposed to by witnesses who have been examined by the Court, and, if their evidence was accepted, the appellants committed no offence in assaulting Puran Singh and Rajballam Singh. The passage which I have quoted above is so ambiguous that it might be understood as leaving it open to the jury to find the accused guilty on the charges of rioting if they were satisfied that Puran Singh and Rajballam Singh had been assaulted. As I have already shewn, that was not the necessary inference in law, for, if the version of the court witnesses was true, the assault on Puran Singh and Rajballam Singh did not constitute an offence in law as the appellants were protected by the right of private defence. If the learned Judge had taken care to separate the two branches of the common object, namely, the assault on Puran Singh and Rajballam Singh and the enforcement of the right to plots Nos. 1224 and 1225 by cutting the masuri crop, he could have made it clear that the charge of rioting with, the latter common object might be sustainable even if the assaults on Puran Singh and Rajaballam Singh were justified in law ; but the charge does not contain directions which could have helped the jury to form a proper conclusion on the charge of rioting if the assaults on Puran Singh and Rajballam Singh did not amount to an offence. In another part of the charge the learned Judge directed the jury that

where both parties are determined to fight and go up to the land fully armed in lull expectation of an armed conflict in order to have a trial of strength the right of private defence disappears.

Now, however true that may be as a general proposition, it was necessary for the learned Judge to point out those particular facts in this case on which the application of the rule depended. Those facts were, that the appellants had been to the police station and sought the protection of the authorities; when the Sub-Inspector arrived on the scene they were peacefully harvesting the crop; that when the Sub-Inspector asked them to desist from doing so they obeyed him, and when he asked them to leave the fields they did so. This conduct on the part of the appellants hardly seems consistent with the determination to force a fight. There is nothing in the learned Judge''s charge to the jury suggesting that these circumstances were relevant to the proposition of law which he enunciated. I am not satisfied that the charge to the jury on the charges of rioting are free from defects. It was so ambiguous that the jury may well have been confused as to the real questions which they had to determine. Furthermore, I can see no reason why the version of the occurrence deposed to by the Court witnesses should not be preferred to the version deposed to by the partisan witnesses examined by the prosecution and am, therefore, satisfied that the defects in the charge to the jury have resulted in a miscarriage of justice. I would, therefore, set aside the convictions of the appellants and direct thorn to be released.

Rowland, J.

I agree and must add that in my view for the reasons about to be given the misdirections and non-directions to which my learned brother has referred have led to a clear miscarriage of justice. Evidence needs to be not merely enumerated but weighed and the tests available are well-known and settled. As the Privy Council said in G.W. Davis v. Maung Shwe Co. (10) 38 Cal. 805 where the parties to a suit are at issue on a vital question,

the safe principle is to consider which story fits in with the admitted circumstances and resulting probabilities;

and again in AIR 1936 60 (Privy Council) their Lordships laid down that the real tests for either accepting or rejecting evidence are how consistent the story is with itself, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and the circumstances of the case.

If witnesses are prima facie interested or disinterested, if they have changed or developed their story from time to time, these are also matters that ought to be regarded. The points for decision, I need not say, require to be investigated separately and in this case there are two main points, one was as to possession of the land and the other was as to the course of the occurrence. Now as to possession of the land the history was to a large extent contained in undisputed and public documents. We know that the fathers of Rajballam and Puran had given it both in usufructuary mortgage and in simple mortgage in 1920 to Kewal Kishun Singh. A usufructuary mortgage means a mortgage with possession, so that it should be presumed that possession passed to Kewal Kishun Singh. We know that Kewal Kishun Singh sued in 1933 on his mortgage and obtained a preliminary decree on 31st May 1935. We know that in October 1935 there was a dispute regarding possession between Kewal Kishun and Ramnarain Singh father of Rajballam and that the latter was restrained by an order u/s 144 from going on the land. We know that in 1938 final decree was prepared and execution taken out; that Puran and Rajballam applied to get the ex parte decree set aside but were unsuccessful. We know that they took an objection u/s 47, Civil P.C., against the execution and were unsuccessful in that also; we know that the sale took place on 23rd August 1938 and sale certificate was duly issued. Writ of delivery of possession was also taken out in December 1938 and the doami bandobasti patta under which the appellants claim was executed by Kewal Kishun in December 1939 in favour of the appellant Pardip. We know that Puran in his petition of complaint on which the present prosecution started made it his case that the complainant and his cousin Rajballam Singh have been in possesion of their bakasht lands of village Ekaona T.N. 337 and they had grown masoor in plot No. 1225;

and in the committing Magistrate''s Court he said: "Plot No. 1225 belongs to me as my bakasht. I am the malik" Cross-examined he denied all knowledge of the ijara deed and mortgage bond above referred to, said that he was never a party to any such transaction and did not know if there was any such transaction. He said he did not know if there had been a civil suit. He denied that there had been an auction sale. It is wholly inconsistent with the case there made out to claim as Puran claimed at the trial that although the above transactions and proceedings had taken place to his knowledge, he was in possession under an entirely different title as sub-lessee holding the land in batai under Kewal Kishun Singh. He examined a number of witnesses to prove his possession, but on the face of their deposition, it is clear that none of them is independent. Such, evidence of partisan witnesses can be too easily secured. It is true, that the defence did not enter into oral evidence regarding possession, but the prosecution account of the possession of Puran and Rajballam was clearly fit to be rejected on the ground of inconsistency as well as improbability which should have been clearly brought to the notice of the jury.

Then as to the coarse of occurrence, the undisputed facts were that the party of the accused on the day of occurrence had begun to reap the crop of the field, that apprehending a possibility of interference by Puran and Rajballam, Pardip had gone to the police station and reported his apprehension to the Assistant Sub-Inspector who came to the place. This conduct prima facie shows a desire to harvest the, crop peacefully and not an intention to commit or provoke a breach of the peace. It should have been pointed out to the jury that the peaceful harvesting of a crop is not an unlawful object such as to make an assembly of men an unlawful assembly and therefore that the assembly of the accused party should not be considered an unlawful assembly unless it became so in consequence of their having at a later stage formed the common object of either continuing by force to harvest the crop in the face of opposition or of assaulting Puran and Rajballam. If the police witnesses were believed, Jamadar''s party desisted from cutting the crop when the Assistant Sub-Inspector asked them to do so: and in that view the first common object fails. If the police witnesses were believed, Jamadar''s party retired from the field and the affray began with an assault by the party of Rajballam on Jhonti the old man who lagged behind: by which his life was in danger.

The prosecution story as given in the petition of complaint does not at all attempt to account for the injuries on Jhonti; in Court a new story is made out that ho was not beaten at the time of the assaults on Rajballam and Puran; but that after that affray was all over, an alarm was raised that two men were killed and a mob came from the village and fighting ensued. If so, why should Jhonti only be hurt? The injuries on Jhonti were six head injuries, one of them incised, the others lacerated; and one punctured incised wound on the arm. On the other side, Rajballam had two spear wounds, Puran two spear wounds and one lathi injury. No others were injured on either side. One has only to put the two versions side by side to see that the police version more satisfactorily explains and fits in with the established and admitted facts. It is also supported by more disinterested witnesses. The assailants of Rajballam and Puran had a right of private defence, and none of the accused are guilty of any offence.