Jogi Raut and Others vs Emperor

Jwala Prasad, J.—This rule which has come up before me for hearing was issued by a Bench of this Court (Acting C.J., and Wort, J.), upon an application of the petitioners against their conviction, and sentences of six months'' rigorous imprisonment and a fine of Rs. 25 each, u/s 143, I.P.C., by the Special Magistrate per his judgment, dated the 14th January 1927, which was upheld, on appeal, by the Sessions Judge of Darbhanga by his judgment, dated the 28th March 1927.

The ground urged in their petition to this Court has been reiterated in the argument of the learned Counsel for the petitioners before me.

The petitioners have been held by the Courts below to be members of an unlawful assembly, the common object of which was

to beat the Mahomedans of village Bijuli and to loot their properties.

The petitioners contend that the evidence adduced by the prosecution in this case fails to prove the aforesaid common object and that the best evidence available, such as that of the daffadar and the three or four chaukidars who were in the crowd from the very beginning, to prove the object with which the petitioners assembled, has been withheld and no explanation has been given for not examining them; nor has it been shown that they were hostile to the prosecution.

The petitioners assert that in the locality, Loama and other villages, the Mahomedans who are in the majority had committed a riot against the Hindus at a place called Amdiha Bedaul the previous day, the 22nd June 1926, and there was a rumour that the Mahomedans would loot the houses of the Bijuli Hindus and consequently, the petitioners assembled in an orchard at some distance from the Bijuli village with a view to protect the Hindus of that place in case they were attacked by the Mahomedans and remained there from a little after mid-day to 4-30 p. m. in a defensive manner without committing or attempting to commit any unlawful act and when the police officers and the Deputy Magistrate, who were engaged investigating the riot of Amdiha Bedaul two miles away, arrived and assured the petitioners that they would protect the Hindus of Biluli in case any danger arose, the petitioners at once dispersed and retired.

The principal question for determination, therefore, is what was the object or the purpose of the crowd when it assembled near Bijuli village. Admittedly, on the previous day, i. e., the 22nd June, which was the 1st day of the Bakrid festival, an occurrence had taken place at Amdiha Bedul in which the Hindus were said to have been looted by the Mahomedans, and in connexion therewith the Deputy Magistrate, Mr. Abdul Salam, had encamped there with the Inspector and the Sub-Inspector of Police and other police officers. The next day the petitioners in a large body collected at some distance from village Bijuli a little after mid-day. After they had been there for two hours P.W. No. 7, Shaikh Abu Mohammad, went to Amdiha and informed the Deputy Magistrate and the police officers, who had stationed there at about 3-30 p. m. The Deputy Magistrate (P.W. No. 3), the Divisional Inspector (P.W. No. 1). the Sub-Inspector of Police (P.W. No. 2) and the Head Constable, Armed Police Reserve (P.W. No. 4) hastened to the spot and reached at about 4-30 p. m. They halted at the bandh between the village and the gachhi where the mob had collected. The Sub-Inspector of Police and the Head Constable, under the direction of the Inspector of Police went to the mob and questioned them as to why they had assembled there. They at once said they had information that the Mahomedans Would loot Bijuli village and hence they had come to protect their fellow castemen in the village. Whereupon the Sub-Inspector gave an assurance that they had nothing to fear. Then they agreed to disperse and began to leave the place. Five of them were taken to the bandh where the Deputy Magistrate and the Inspector of Police were staying and they also, on being questioned, said the same thing and cm being assured they dispersed.

The Sub-Inspector says:

No action was taken because neither the Deputy Magistrate nor the Inspector of Police was of opinion that any action should be taken with regard to the occurrence.

The matter dropped there.

Subsequently, under the orders of the District Magistrate and the Superintendent of Police, the Sub-Inspector drew up first information on the 27th June 1926, wherein he repeats:

as the mob went away, so no step was taken against them.

Rajab Ali filed a petition of complaint on 29th June.

The learned Sessions Judge rightly says:

Where a crowd has dispersed without taking any action, the intention and common object of that crowd can only be inferred from the surrounding circumstances, and among these circumstances the attitude and demeanour of the crowd itself is one of the points which must be taken into consideration.

The prosecution examined a number of witnesses. Except, the four official witnesses mentioned above, the rest of the witnesses were either the accused or witnesses in the Amdina Bedaul case or their relations. The Court below has, therefore, principally referred to the evidence of the four official witnesses in order to show that the attitude and the demeanour of the crowd showed that they were actuated with am unlawful object. The Deputy Magistrate, Mr. Salam (P.W. No. 3). states that he saw one man provoking the mob and directing them not to retire. The Inspector (P.W. No. 1) says that he saw some members of the mob dancing about and flourishing their sticks and saying something. The Sub-Inspector and the Head Constable, Armed Reserve Police (P.W. Nos. 2 and 4) do not prove any specific overt act of the mob except the vague statement that it appeared from the conduct of the mob that the mob had collected for unlawful purpose. The learned Sessions Judge has referred to the opinions and impressions of these witnesses: except what they actually saw and heard what the mob was doing and saying their opinions and impressions are not evidence. The aforesaid overt act of the mob deposed to by the Deputy Magistrate and the Inspector of Police are not inconsistent with the object with which they said they had assembled, viz., to protect the Hindus in case of any attack by the Muhammadans. The man, who is said to have asked the mob not to retire, might have been in an excited mood believing still that the Muhammadans would loot the Hindus and hence asked them not to retire. In any case, for his own personal act other members were not necessarily responsible; for they did not listen to him and actually did retire immediately they were assured by the public officers that there was no danger. Some of the members of the mob might have been brandishing their lathies as deposed to by the inspector, when they had nothing to do and the occasion for which they had collected had not arisen. These witnesses, however, do not prove the object of the assembly being "to beat and loot the Muhammadans" of which they have been convicted and what is deposed to by them is not incompatible with the innocence of the accused.

On the other hand, the conduct of the mob in remaining there from a little after mid-day to 4-30 p. m. at some distance from the village without taking any steps to commit any act of aggression goes to show that the crowd had collected with the object as stated by them and were waiting till the occasion, if at all, arose for them to protect the Bijuli Hindus from being attacked by the Muhammadans. They did not raise even a lathi against any of the Muhammadans of the village. A mob coming with an avowed object "to beat and loot" would not halt for a long time near a village in such a calm and peaceful manner without taking any steps towards the accomplishment of its object; but the mob remained where it was, for about four hours and when the Deputy Magistrate and the Police Officers arrived they at once said to them what they had collected for and immediately dispersed on being assured that there was no danger. The attitude and conduct of the mob supported the case of the accused rather than that of the prosecution.

The sub-inspector states that he found the daffadar and three or four choukidars of the locality in the mob restraining and demonstrating. These persons were in the mob for some time and they were the best persons to depose to the words uttered and the conduct displayed by the mob. But these persons have been withheld and no reason has been given by the prosecution for not examining them. This alone is sufficient to discredit the prosecution version and to support the version of the accused. Upon this fact alone the conviction is liable to be set aside.

On merits also, as observed above, it must be set aside.

The investigation in the case commenced on the 1st July, long after the occurrence which took place on the 23rd June and the official witnesses naturally are not able to identify the people. The village witnesses are too much interested to be relied upon. If they went to the mob, the fact that they were not in any way molested disproves that the object of the mob was to beat. If they did not go near enough they could not be able to identify them. The evidence of identification is too weak to be acted upon.

The grounds upon which the Rule was issued by this Court have been fully substantiated and the learned Assistant Government advocate has not been able to satisfy me that the finding of the Court below that the object of the assembly was to loot and beat the Muhammadans of Bijuli village is correct.

I would,- accordingly, set aside the conviction and sentences passed upon the petitioners and direct that they be set at liberty, and the fines, if realized, will be refunded.