Janak Singh and Others vs Emperor

Agarwala, J.—This is an appeal from an order of the Additional Sessions Judge of Patna in a case in which 16 persons were put on their trial before a jury on charges of rioting and of murder committed in the course of a riot. By an unanimous verdict the jury acquitted one of the accused persons and by a majority of 8 to 1 they held the remainder to have committed an offence u/s 326/149, Penal Code. The learned Judge accepted the verdict and sentenced the persons who have been found guilty to five years'' rigorous imprisonment each u/s 326/149. The jury also found some of the accused guilty u/s 148 and some u/s 147, Penal Code, but no separate sentence has been passed in respect of these offences.

The rioting which was the subject-matter of the charge arose out of a dispute with respect to plot No. 1666 in village Sahri within a block of land known as Bhangi Bigha.Khandha, On the morning of the occurrence, which was 10th November 1939, Chaman Lal and his party were harvesting the crop on this plot. The accused party, which represents the interest of the landlord, arrived there armed and, according to the evidence, they first sat on the boundary of the field while a constable and a dafadar, who were with them, persuaded the complainant''s party to desist from cutting the crop. The constable''s attempt to prevent the crop being harvested was successful to this extent that the men among the harvestors stopped work. The witnesses do not agree as to whether women labourers who were with them went on working or not. However that may be, after the men had stopped, the accused party are said to have assaulted them. These being the material facts, the charge framed against the accused persons was of rioting with the common object of preventing Chaman Lal and his party from harvesting the crop on plot No. 1666 and of assaulting Chaman Lal and his party.

The first thing to be observed with regard to this charge is that it was an improper charge to frame on the facts alleged by the prosecution. On those facts it is clear that although the party of the accused went to the field armed, they committed no offence at all until the men of the complainant''s party having stopped work were attacked by the accused. In these circumstances the proper charge to frame was a charge of rioting with the common object of assaulting the complainant''s party. It is not the case of the prosecution that any criminal offence had been committed up to the time when the assault started, and therefore the first branch of the common object mentioned in the charge was unnecessary and likely to cause complications at the trial. Indeed the attacks on the learned Judge''s charge to the jury are based largely on the directions which he gave with regard to the two branches of the common object. The learned Judge directed the jury that so far as the second branch of the common object was concerned, it was not necessary for them to decide who was in possession of plot No. 1666 or who had grown the crop. Quite clearly this was a proper direction and there could have been no misunderstanding the law on the subject as laid down by the learned Judge if the first part of the common object had not been introduced into the charge and the learned Judge had not found it necessary to give directions to the jury with regard to this too. In charging the jury with regard to the second branch of the common object the learned Judge in the charge refers to the decision in Ghyasuddin Ahmad and Others Vs. Emperor, . It is not clear whether this reference has been put in the heads of charge merely for the purpose of informing this Court of the decision which the learned Judge had in mind in charging the jury or whether he actually referred the jury to that decision. It has been pointed out more than once that it is undesirable and indeed improper for the Judge who is charging a jury to invite their attention to the decisions of oases respected in law reports, The jury being laymen are unlikely to understand the import of such decisions in the time available to them and it is no part of their business to do so. They have to take the law from the Judge and it is the duty of the Judge to the best of his ability to explain to them what the law in his opinion is. If the Judge considers it necessary in the heads of charge to note any case he had in mind in laying down the law, it is desirable that he should make it clear that the jury was not asked to consider it. That point, however, is hot material for the matter which we have now to consider.

With regard to the charge as framed the learned Judge directed the jury in these words:

If you believe the prosecution evidence to the effect that Chaman aotually grew the paddy crops and that consequently he had a right to cut the crops, the action of the mob in using force to prer vent him from cutting the crops Comes within the provisions of Sub-clause (5) to Section 141. The second common object however has nothing to do with the question as to who grew the crops.

There is nothing in this part of the learned Judge''s observation to which objection may be taken except perhaps that he would have done well to make it clear to the jury that it was only if they were satisfied with the evidence in the case that the assault did not take place until after the complainant''s party had ceased harvesting the crop that the second branch of the common object needed consideration by them. He went on then to say:

To prove the second ingredient it is not necessary for the prosecution to prove that Chaman Beldar actually grew the crop in plot No. 1666. Even if the prosecution fails to prove this fact, if it however succeeds in showing that the common object of the unlawful assembly was to cause hurt to Chaman Beldar and his men, the charge u/s 147, Penal Code, is complete.

This also is a correct statement if one bears in mind the facts of this particular case that the essence of the prosecution story is that no offence was committed until the prosecution party had ceased harvesting the crop and the accused then assaulted them, In view of the fact, however, that the prosecution also alleged that the common object of the unlawful assembly was to prevent the complainant''s party from harvesting the crop, the learned Counsel for the appellants takes objection to the learned Judge''s direction to the jury that it was unnecessary for them to consider who was in possession of plot No. 1666. At a later stage when the learned Judge is dealing with the defence he directed the jury in these words:

If it is found that the complainant''s party were committing theft, mischief, or criminal trespass on the property of any of the accused, all of them have the right to cause the wrongdoer any harm other than death.

This was a correct charge in so far as the first branch of the common object is concerned. There are similar directions in the charge to the jury which to my mind make it quite clear that the learned Judge did not wrongly charge the jury in law, but it is equally clear to me that in view of the dual nature of the common object inserted in the charge, it is possible that it was very difficult to convey to layman what had to be found in'' order that they might be able to decide which if any of the offences alleged had been committed. This is clear when I refer to the learned Judge''s ultimate direction on the point when he is discussing the right of private defence. He says:

If any member of the mob exceeded his right of private defence in killing Chaman Beldar, he alone will be responsible for exceeding his right. If, however, you accept the former view (namely, that the complainant''s party were in possession of the plot) you will have to hold the persons in the mob guilty of rioting and other allied offences.

Now, this sweeping statement that all the persons in the mob were guilty of offences in the circumstances of this particular case may well have misled the jury. It will be remembered that a very large number of persons on behalf of the landlord had gone to protest against the reaping of the crop. Their first action was not to resort to force but to sit down by the side of the field while the constable and the dafadar endeavoured to prevent a breach of the peace by persuading the complainant to desist from harvesting. When the complainant''s party had been persuaded to abandon the cutting of the crop then there was an assault on them but it by no means follows that every one who had gone to the scene of the occurrence to protest against the cutting of the crop took part in the assault. Prima facie there was no reason why there should have been any assault then and the probability is that some section of the crowd or individual members of it took the matter into their own hands and attacked people on the other side, but that would not make liable to punishment all the persons who had gone there merely to protest and who took no part in the assault and did not share the common object of the assailants. The charge of the learned Judge to the jury makes no distinction between these two classes of persons and does not even warn the jury that they should be careful to find guilty only those who actually took part in the assault or who shared the common object of the assailants. In this respect the charge is defective. The omission of the learned Judge not to give the jury the necessary direction with regard to this in my opinion amounted to a misdirection which quite possibly, and indeed probably, has resulted in the jury not directing their attention to the important question as to who did assault the complainant''s party or who were the members of the assembly whose object it was to do so.

I would accordingly Eet aside the verdict of the jury and the decision of the learned Judge and direct that the appellants be re-tried. The appellants will be released on bail to the satisfaction of the District Magistrate.

Shearer, J.

I agree.