Janak Singh and Others vs Emperor

Manohar Lall, J.—This is an appeal by 13 accused who have been convicted by the learned Additional Sessions Judge of Patna by his order dated 30th July 1941 in a trial held with the aid of a jury and have been sentenced to various terms, of imprisonment under Sections 147, 148, 324/149 and 326/149. The occurrence for which the accused have been found guilty took place as far back as 12th November 1939. The circumstances under which these accused had been tried once before another learned Judge with the aid of another jury are set out clearly in the order of this Court in Janak Singh and Others Vs. Emperor, dated 15th August 1940 by which the verdict of the jury was set aside and the accused were directed to be retried.

The rioting which is the subject of the charge in the present case arose out of a dispute with respect to plot bearing No. 1666 in village Sahri within the khand known as Bhangi Bigha Khanda. This plot has an area of about 22 khatas towards the north and contains another sub-plot with an area of 17 kathas towards the south, that is to say, about 39 kathas or 2 bighas more or less. On the date of occurrence which was on the morning of 12th November 1939 the deceased Ghaman Beldar was harvesting the crops with the aid of his men and women labourers which were on the northern plot of 22 kathas. At that time it is alleged that the accused who represented the interest of the landlord arrived there armed with various weapons and they are first said to have sat on the alang of the field while a constable and a dafadar who had accompanied them went on to persuade the party of the complainant to desist from cutting the orops on the 22 kathas field. The constable was successful in the persuasion and Chaman, and his men stopped from further harvesting the crops. The witnesses, however, do not agree whether the women labourers who were also along with Chaman did stop their work of harvesting or not. After the men had stopped harvesting at the request or persuasion of the constable, the case of the prosecution is that the party pf the accused assaulted them while they were either on or near about the place from where the crops had been cut already or while they were fleeing from the field on seeing the attitude of the mob. As a result of the injuries which were inflicted on Chaman, he died.

Four of the prosecution witnesses, namely, Behari Beldar, Dular Beldar, Siri Beldar and Bamphal Beldar received simple injuries in the riot. Accordingly the accused were charged for the offence of killing, Chaman Beldar u/s 302 read with Section 34, Penal Code, and Janak Singh was charged for the offence of killing Chaman u/s 302, Penal Code, while some of the other accused were charged for the same offence by the operation of Section 34, Penal Code. Eight of the accused were charged for being members of an unlawful assembly the common object of which was to cause hurt to Chaman Lal and his men. Some other accused were charged u/s 148, Penal Code, for the same common object. All the accused were charged u/s 302 read with Section 149, Penal Code, for being members of an unlawful assembly with the same common object and while being members of that unlawful assembly one or more of the members of that assembly killed Chaman Lai, an offence punishable u/s 302, Penal Code, the offence being committed in prosecution of the common object of that assembly or i such as the members of that unlawful assembly knew to be likely to be committed in prosecution of that common object. Specific charges were framed against a number of accused under Sections 323, 324, 326, Penal Code.

The learned Judge gave a very elaborate charge to the jury. It should be observed that following the directions contained in the former judgment of this Court the learned Judge pointed out to the jury that the question of possession was not of importance in this case; but he nevertheless referred to this question while dealing with the right of private defence in a manner which has given some ground to the appellants for criticising his charge. In the main, however, I do not see any ground for criticising the charge of the learned Judge. The charge as a whole is quite fair if not somewhat over-elaborate. The learned Judge has taken great pains to place all the facts before the jury. On 16th April 1941, the jury returned a verdict as follows: By a majority of 6 to 1 they acquitted Janak Singh, Jamuna Singh, Hari Singh, Chhotu Dusadh, Hirday Beldar, Mosafir Beldar, Kuar Beldar and Punai Beldar u/s 324, Penal Code. By a majority of 4 to 3 they acquitted Balgobind of the charge u/s 323; they unanimously acquitted Hari Singh of the charge u/s 326, Penal Code. With regard to the charge u/s 147, Penal Code, they acquitted Matuk Singh, Gursaran Singh, Bisheshar Dusadh, Ganga Beldar, Balgobind Singh and. Sakaur. Begarding the charge u/s 148 they acquitted all the accused by the same majority. The jury then returned a verdict of not guilty u/s 302/149 by a majority of 6 to 1 against all the acoused. The jury, however, gave their verdict that by a majority of 6 to 1 they found Janak Singh, Jamuna Singh, Hari Singh, Chhotu Dusadh, Kuar Beldar, Hirday Beldar, Punai Beldar and Musafir Beldar guilty u/s 326/149, Penal Code andjby a similar majority they found Balgobind Singh,, Gurusaran, Bisheshwar, Gonga and Sakuar guilty u/s 324/149, Penal Code.

The verdict as returned was obviously unintelligible because if the jury had acquitted the appellants under Sections 147 and 148, it is difficult to understand how they could convict them u/s 326/149 or Section 324/149. Accordingly the learned. Judge asked the jury to retire and reconsider their verdict after he had given them sufficient fresh, instructions on the question of law. This procedure was adopted by the learned Judge because the jury stated to him that their verdict was given by mistake and misconception of the legal principles involved. The jury then retired for a short time, only five minutes and gave their verdict as follows: They acquitted all the accused u/s 302/149 and they convicted the accused Janak Singh, Jamuna Singh, Hari Singh, Chhotu Dusadh, Kuar Beldar, Hirday Beldar, Punai Beldar and Musafir Beldar u/s 148, Penal Code and Balgobind Singh, Gurusaran Gope, Bisheshwar Dusadh, Gonga Beldar and Sakaur Beldar u/s 147, Penal Code. They also convicted Janak Singh, Jamuna Singh, Hari Singh, Chhotu Dusadh, Kuar Beldar, Hirday Beldar, Punai Beldar and Musafir Beldar u/s 326/149. We notice that these accused are the: same who were found guilty by the jury u/s 148, Penal Code. The jury also returned a verdict of guilty u/s 324/149 against the accused who were found by them guilty u/s 147. Their names need not be repeated again. Finally the jury acquitted Matuk Singh u/s 147. The verdict of the jury was 6 to 1 in all these cases.

The learned advocate for the appellants contended that in view of the procedure adopted by the learned Judge he erred in convicting the accused. It is suggested that he should have made a reference to this Court u/s 307, Criminal P.C. The argument was in this form. As the verdict of the jury was clear even though it may appear to be unreasonable or absurd, the learned Judge was bound to accept the verdict so far as they acquitted the accused under Sections 147 and 148 and the other specific offences and if he was in disagreement with the verdict given by the jury on the other sections, he ought to have referred the case to the High Court. It was also submitted that the learned Judge had no right to put any questions to the jury for the purpose of ascertaining whether they fully understood the legal position and whether their amended verdict was not due to any mistake or misoonception. It was suggested that the procedure adopted by the learned Judge was not authorised by the Criminal Procedure Code and was beyond the scope of Sections 303 and 304, Criminal P.C.

Reliance was placed in support of this argument upon two cases--one reported in In re Sundaram Aiyar AIR 1931 Mad. 775 and the other in Emperor V. Kondiba (''04) 28 Bom. 412. It was argued that there was no mistake which the jury had committed in the delivery of their verdict, nor was the verdict delivered by them the result of an accident. It was argued that the verdict as pronounced by the foreman was clear and precise and the mere fact that there may be a contradiction in the verdict of the jury was no ground for adopting the procedure which was adopted by the learned Judge. On the other hand the learned Assistant Government Advocate relied upon a number of Calcutta cases in Hamid Ali Haldar Vs. Emperor, , Girishchandra Namadas and Others Vs. Emperor, , Rafat Sheikh and Others Vs. Emperor, and Sadek Mandal Vs. Emperor, where it was pointed out that in certain circumstances similar to those which appear in this case, the procedure adopted by the learned Judge was correct. In my view the Calcutta view is correot and should be followed by us. In Hamid Ali Haldar Vs. Emperor, , when the trial which was with the aid of a jury had reached the stage of the conclusion of the charge by the learned Judge, the jury retired to consider their verdict. The foreman of the jury informed the Court that they found all the accused guilty u/s 147. The learned Judge then understood the foreman to read out the names of rive of those accused and to say that the jury found them guilty u/s 364 and to go on to say that the others were not guilty under that section and the learned Judge recorded his verdict to that effect. He then typed out a short judgment and sentence on the basis thereof and he read it out in Court when to his astonishment the foreman said:

No, that is not what we said. What we said was that these five people were guilty u/s 364, but we gave them the benefit of the doubt.

Thereupon the learned Judge recharged the jury, telling them particularly about the benefit of the doubt and what was meant by Section 364 and directed them to reconsider and find out what their verdict really was. The jury retired and on returning they delivered a verdict in which they found all the 11 accused guilty u/s 147 and certain accused guilty u/s 365, Penal Code. In these circumstances it was argued before the Calcutta High Court that the procedure adopted by the learned Judge was contrary to the Criminal Procedure Code and that the learned Judge had no right to re-charge the jury at all; and secondly he should have taken the original verdict as a verdict of not guilty and lastly that he should have asked only certain questions to the jury. The learned Chief Justice in disposing of this argument observed as follows at p. 63:

I desire to say that I protest against all three of these suggestions. The learned Judge was not obliged to accaept an absurd verdict, either as a verdict of guilty or as a verdict of not guilty. He was quite entitled to tell the jury to consider that matter over again. In the case in which the jury have not considered the matter over again, a verdict of that character would doubtless be construed afterwards as a verdict of not guilty; but that there is any duty upon the Judge to accept and interpret for himself a verdict of that character when the jury are there and can give a proper verdicat, is to my mind a proposition which has no foundation. Again the learned Judge could, if he liked, have asked questions of the jury. He was not obliged to do so. If he thought it fairer and clearer and simpler to re charge the jury on certain specific points and to tell them to go and get their heads dear on the subject and give a proper verdict, there is nothing in the Code against that. The Judge put the matter in a much better position than it would have been if he had endeavoured to cross-examine the jury, which, as a matter of fact, means cross-examination of the foreman. That is generally a most unsatisfactory procedure.

This is exactly what has happened in the present case and with respect I adopt the language used by the learned Chief Justice. In Rafat Sheikh and Others Vs. Emperor, , the facts were closely similar to the facts in the present case. In that case six persons were put upoh trial for charges under Sections 304/34, Sections 304/149 and Section 147, Penal Code. The jury returned a verdict of guilty against two accused under Sections 304/34 and accused 3, 4 and 5 were oonvicted under Sections 304/149 and accused 6 acquitted. Regarding the charge u/s 147 all the accused were in the first instance acquitted by the jury in that the jury upon that charge, when they were asked to say what was their verdict u/s 147, said "all are not guilty u/s 147." It appears that the learned Judge at the trial immediately appreciated the fact that the verdict of the jury with regard to Section 147 was inconsistent with the verdict which they had already given with regard to the other charge. He thereupon had some discussion with the lawyers on both sides and proceeded to recharge the jury by explaining to them the true meaning and scope of Section 147 of the Code. It was argued in these circumstances that because the learned Judge was not disposed to accept what was obviously and admittedly an inconsistent verdict with regard to Section 147 he ought not to have made any further charge to the jury, but should have dealt with the matter by referring the case to the High Court for consideration--the exact argument which has been advanced before us by the learned advocate for the appellants in this case. Costello, J. who delivered the judgment of the Bench pointed out that in view of the authority in Hamid Ali Haldar Vs. Emperor, , already referred to by me the argument advanced by the appellants before him was completely disposed of and he gave a quotation from the judgment of the learned Chief Justice which has also been given by me; and then observed as follows at page 732:

In the present instance, Mr. Ray (counsel for the appellants) has frankly admitted that the verdict of the jury with regard to the charge u/s 147 was in point of fact obviously inconsistent with the decision, which the jury had already expressed in connexion with the other charge against the accused. We are of opinion, that the learned Judge adopted a reasonable and proper course in order to prevent having on the record a verdict which in the circumstances of the case would be an absurd one.

In my opinion, these two cases completely dispose of the argument which wasstressed before won behalf of the appellants on this point. I do not think it necessary to consider the other oases relied upon because they do not deal with the situation exactly similar to the one which arises in the present case. I accordingly overrule the first contention. The learned advocate then suggested that the charge to the jury was defective on the matters which are considered seriatim below. He drew attention to the following passage in the charge which explained Section 149, Penal Code:

But an assembly which is not in its inception unlawful may subsequently become so and the case of the prosecution is that it was when the malik''s men came to the disputed field and began to assault the Reldars that the assembly developed an unlawful character. There is nothing in the evidence before you to suggest that some of the maliks'' men remained at that alang while a certain section lost patience and rushed to the field with the object of assaulting the Beldars and driving them from the field by men force.

It was argued that the direction was against the evidence because some of the witnesses, it was suggested, had said in their evidence that some members of the unlawful assembly remained at the alang while others proceeded to the field and joined the unlawful assembly. In this connexion attention was drawn to the first information report, where the first informant had stated after he had named the accused whom he could identify as about 39 in number. In the meantime the members of the mob whose names I have already recorded above rushed towards us shouting "Mahabir ji ki jai." It was argued that this shows that soms of the accused were at the alang and only some of the party of the landlord went on to the land and may have become members of the unlawful assembly. But it is clear that the appellants are amongst those who have been named by this witness at p. 157. Therefore, when he is speaking of the members of the mob who rushed towards the complainant''s party he is obviously referring to the appellants who were named by him as one of the 38 or 39 accused. The only evidence to which our attention was drawn was the evidence of a witness who was declared hostile, namely, P.W. 19 Palakdeo Singh; he did not state in his evidence-in-chief anything to support the contention, but in cross-examination on behalf of the defence he did state at p. 135 "I could not see which people on malik''s mob came to the field." In my opinion, on this slender evidence it is impossible to say that the learned Judge''s charge was erroneous.

It was then suggested that the learned Judge''s charge on the question of the right to private defence was erroneous and has caused prejudice to the accused. The learned Judge after elaborately dealing with the question of possession left it to the jury to decide whether the defence has or has not been able to prove possession over the disputed land. After this he observes that if the jury consider that the defence has been able to establish its possession over the disputed land then they will have to consider the question of the right of private defence. The learned Judge then repeated what he had pointed out earlier that the question of possession was not strictly material to the prosecution case. The objection is taken to the following remarks of the learned Judge to be found at p. 31:

Now in the present case I should point out that it cannot be argued that the Beldars were committing or attempting to commit theft or misohief on the disputed lands. It is not in evidence nor has it been suggested that the Beldars were attempting to remove the crop of the disputed lands and the mere act of cutting could hardly be said to be an act of mischief.

It is true that the passage as it stands may lead to the interpretation sought to be put upon it by the learned advocate because it cannot be denied that the offence of theft is committed when a person removes property in the possession of others or outs or severs it with the intention of removing. See Illus. (a) of Section 378; but in this case what the learned) Judge is pointing out to the jury is that on the evidence the Beldars were not committing or attempting to commit theft or misohief on the disputed land at the time when the assembly of the landlord is said to have become unlawful. The assembly is said to have become unlawful after the Beldar and his companions had stopped harvesting on being requested to do so by the constable. It seems to me, therefore, that if the context is kept in view the remarks of the learned Judge are not erroneous and in any case are not such as could have caused any prejudice to the accused. Moreover at the end of the same page the learned Judge makes it clear that the right of the private defence of property ceases simultaneously with the cessation of apprehension to person and property and, therefore, even if the defence is able to show that the right of private defence did arise, the jury were asked to consider whether the right was exercised subject to the restrictions that the learned Judge pointed out above. For this reason I do not think any fault can be found with the charge on this point also.

It was faintly suggested that the charge being u/s 302/149 the learned Judge ought not to have accepted the verdict of the jury when they returned a verdict of guilty u/s 326/149 and Section 324/149; but this contention is not sound: see Bhagwat Singh v. Emperor AIR 1936 Pat. 481. A charge u/s 302/149 includes the minor charges u/s 326/109 or Section 324/149.

I do not see any reason for interfering with the verdict of the jury. The sentences are not excessive as the learned Judge has been careful to distinguish the cases of Janak and Jamuna and Hari from those of the other accused, in whose cases again a differentiation has been made in awarding the sentence. The result is that the appeal fails and is dismissed.

Rowland, J.

I agree.