Jiwan Raut and Others vs King Emperor

Jwala Prasad, J.—We have carefully considered the judgments of the Courts below. The appellate Court judgment does not afford much assistance in disposing of this application. Treading the judgment of the learned Sessions Judge one cannot feel satisfied that he examined the evidence in the case* His was the final Court on fact and it was incumbent on his part to go into the evidence and to refer to it in such a manner as might strike us that he had applied his mind intelligently and carefully to the consideration of the evidence in the case. The case was not an ordinary riot case. An occurence admittedly did take place. The question was�which account of the occurrence was true, that given by the prosecution or the one given by the defence. The Magistrate who tried the case had in his judgment given indications that in some of the material parts of the case of the prosecution, the evidence was unsatisfactory and unreliable. He had held that the motive, alleged on behalf of the prosecution for such a serious riot was not proved. He also held that the loot alleged by the prosecution of the crop stored in the Khalinan also did not take place. He went further and held that the number of the rioters was greatly exaggerated. He had adversely criticised most of the witnesses on behalf of the prosecution. There were injuries on both sides; four on the prosecution side and three on the defence side. There was a free fight. In those circum stances the learned Sessions Judge was bound to examine the evidence carefully so as to show that he was fully convinced upon the consideration of the pros and cons of the case and the criticisms advanced on behalf of the defence that the account given by the prosecution was true and that the accused were the aggressors. This he had not done, and on the whole we are satisfied that the case is one in which we should not affirm the conviction.

Now the trial Court''s judgment is, to say the least of it, a most confused one. It did not consider the individual case of the accused. u/s 148 I.P.C. an accused can only be convicted if he in committing the riot is armed with a deadly weapon. The point does not seem to have struck the trial Court. It does not seem to appreciate the distinction between Sections 148 and 149 I.P.C. In the charge the trial Court mentioned 148/149. This is an incongruous and impossible charge. Again, as observed above, the trial Court did not find that the accused really committed the offence u/s 148 I.P.C. by being present in the mob armed with deadly weapons. Therefore the learned Assistant Government Advocate is right in conceding that the charge as framed cannot stand and that the accused could, if at all, have been convicted u/s 147, I.P.C. The learned Sessions Judge also does not seem to have considered how and whether the charge u/s 148 I.P.C. was established.

Considering the facts and circumstances of the case we set aside the conviction, and the sentence passed upon the accused. The fine if already paid should be refunded.

Coutts, J.

I agree.