Kailash Singh and Others vs Emperor

Varma, J.—The petitioners in this case have been convicted u/s 147, Penal Code and sentenced to pay a fine of Rs. 50 each in default to undergo two months rigorous imprisonment. There is also a conviction u/s 379, Penal Code, but no separate sentence has been passed thereunder. The common object of the assembly is said to be cutting away of some crop.

The case for the prosecution is that one Sheobalak Prasad had about 26 bighas culturable land including plots 1179 and 1191 in mauza Jamuama. While still a minor, he shifted from, his parental home and settled at his maternal grandfather''s place at Monghyr having acquired property by gift. He had a gotia called Jugeshar Prasad who was in possession of Sheobalak''s lands in Jamuama till his death in the year 1931. The lands continued in possession of the widow of Jugeshwar, namely Musammat Debi Sen. The remaining portion of his lands were in possession of bataidars. Now Sheobalak sold some of his lands including plots 1179 and 1191 to Kailash Singh and Chamari Singh by registered kobalas on 5th June 1939, When these purchasers wanted to take possession they were resisted by Mt. Debi Sen''s men. A 144 proceeding was started and decided in favour of the lady. The occurrence out of which the present application arises took place on the 12th September 1940.

An attempt has been made in the argument that this case is in the nature of a civil dispute and not a fit subject for a criminal trial. In support of the contention authorities beginning from Sadasiv Singh and Others Vs. Emperor, to Madhusudan Das v. Emperor AIR 1922 Pat. 12 have been referred to; but the real test in a case of this nature, as laid down in Abdul v. Emperor AIR 1929 Pat. 86, is as to which" of the parties had grown the crops. On the probablities of the case also, it appears that once Jugeshwar gob possession of the lands he was not willing to part with that possession and his possession continued till the date of the occurrence. My attention has been drawn to two documents in this case. Exhibit 1 is a letter dated 17th November 1919, which says that Jugeshwar was looking after the property belonging to Sheobalak; and Ex. c is a receipt dated 1st July 1989, in support of the statement that a thousand rupees had been paid to Musammat Debi Sen. The probabilities are, as I said, that the prosecution party continued in possession of the property, and on the evidence the trial Court has come to the finding that the crop was grown by the complainant''s party. So whoever removed the crop when it was shown by the complainant was guilty u/s 379 and if they formed members of an unlawful assembly they would be guilty u/s 147.

But the matter does not end there. The question still remains as to which of the persons ranged on the side of the accused have been proved to have taken part in the occurrence without any reasonable doubt. Neither the trial Court nor the lower appellate Court has dealt with the case from that point of view although that was essential in view of the defence taken by the accused in this case. Except Kailash Singh and Chamari Singh who are transferees from Sheobalak, the other accused in the written statements said that they had no interest in the land and that they were falsely implicated because they happened to be boundary witnesses. Kailash and Chamari did hot deny having cut away the crops. Their defence was that they were entitled to cut and that they had cut the crop a few days before the date of the occurrence as alleged by the prosecution.

In this view of the matter, it was essential that the case of the individual accused should have been considered. There is one other instance in which a person has been mentioned as an accused. The evidence against him is different from the general trend of evidence that has been produced by the prosecution. For example, Permanand Jha (aged 70 years) is also a transferee from Sheobalak and Harnath Jha is his son.

In cases of this nature a transfer is made with the object of securing possession and when a criminal case crops up, the prosecution also takes the opportunity of implicating as many people as possible who are likely to be on the side of the accused. As they have been convicted u/s 879 it was necessary to find as to what specific acts were proved by the prosecution which brought the individual accused within the mischief of that section. The evidence adduced by the prosecution is of a general nature that they were there; and unless something specific is mentioned in a rioting case, specially when the accused have also been convicted u/s 879, it is not safe to convict the accused.

So far as Kailash Singh and Chamari Singh are concerned, they admitted that they had taken away the crop, and the finding is that the crop was grown by the complainant''s party. They are, therefore, guilty u/s 879 as also u/s 147, Penal Code, and their convictions antl sentenoe will, therefore, stand.

The other petitioners in my opinion are entitled to the benefit of doubt and I would allow their applications, set aside their convictions and sentences and direct that their fines, if paid, be refunded.