Kuar Koeri and Others vs Emperor

Madan, J.—The twenty-one appellants, who are Koeris and related to one another have been convicted under Sections 302, 302-149, 148 and 324, Penal Code, and have been sentenced to various terms of imprisonment. Two other persons Muklal Koeri and Kamnandan Koeri were also put on trial but were acquitted.

The occurrence is said to have taken place at about 6 P.M. on August 28 last, in village Andaur of the Shahabad District, when about 25 cattle belonging to the appellant Kuar Koeri and others grazed a part of plot No. 1 of the village which is a large plot recorded in survey as gair mazrua land of the landlords. Four bighas out of this plot are said to have been settled on bhaoli terms with Inder Singh, and this portion of the plot is said to have been grazed. On the western boundary of these four bighas is plot No. 2 which is the kasht land of the appellant Kuar Koeri. When the grazing began Inder and his cousin Raghubir are said to have interfered, and one of the cowherds in charge ran away to the village. Then a mob, including all the appellants, came to the spot, Armed with lathis and spears and attacked Inder Singh and his companions. The result was that Inder Singh is said to have been killed by Kuar, Sukar and Parma, appellants, and his cousin Raghubir is said to have been killed by fcodhi and KishunJ All these persons have been convicted u/s 302, Penal Code, for committing these murders. Pour other persons, Ganga Dayal Singh, Rim Sarup Lohar, Shankar Lohar and Peyar Lohar are also said to have been attacked and injured, and charges were framed against seven of the appellants u/s 324, Penal Code, in connection with these assaults. All the appellants were also charged u/s 302, 149 and Section 148, Penal Code, as being members of the mob, which after the assaults rescued the cattle and took them back to the village. Inder is said to have died immediately on being assaulted, while Raghubir was taken to the thana, four miles away where, he lodged a first information that evening. He, however, died that night in the hospital.

The prosecution examined 12 eye-witnesses who are said to have been present at the occurrence as well as one other person who is said to have arrived just afterwards. After the occurrence, the appellant Kuar Koeri was found to have been injured and to have gone to Sasaram hospital where he was examined on the day following the occurrence and lodged a counter-information. This information was to the effect that Inder, Asis Lohar and Peyar Lohar were cutting grass in his plot No. 2. He then remonstrated and was assaulted by Inder and others and fell unconscious. The other appellants were arrested or surrendered on various dates up to September 24, and it was found that Sukar, Bilas and Sakaldip had also received injuries. The story of these persons is that they also came to the spot and were assaulted, while the other appellants said that they were not there. The appellants examined no witnesses in support of their version of the occurrence.

In sentencing the appellants the learned Sessions Judge divided them into three groups. The first group consists of live persons found to have taken part in the two murders, and these persons have been convicted under Sections 302 read with Section 34, Indian Penal Code, and sentenced to transportation for life. The next group consists of seven persons who are not said to have taken part in the murders but to have joined in the assaults on the other four injured persons. These persons have been convicted u/s 324 in that connection, but have not been separately sentenced under that section. They have also been convicted u/s 302-149, Indian Penal Code, but the learned Judge holding that their responsibility was less than that of the first group sentenced them to ten years'' rigorous imprisonment.

The third group consists of nine persons not charged with any individual assault. Two of these persons are said to have been armed with spears and the rest with lathis. These persons have also been convicted u/s 302-149, Indian Penal Code, but have been sentenced to only four years'' rigorous imprisonment. The sentences on these two groups are obviously illegal as, if the learned Judge decided to convict them u/s 302-149 of the Code, he WAS bound under the law to sentence them to not less than transportation for life. For this reason the learned Advocate for the appellants was informed that, if we thought it necessary we should at the time of the hearing, issue notice of enhancement of sentence on these two groups. The first question, therefore, that arises is whether or not the conviction of these persons u/s 302-149 was justified, as merely because two persons were killed in the riot, it does not follow that murders were committed in pursuance of the common object of the unlawful assembly or that the members of the assembly must have known that they were likely to be committed in pursuance of their common object.

Now it is a grave feature of this case that during the occurrence two persons were killed and four others received no less than 26 injuries between them, several of them caused by sharp weapons and one of them being an injury to the neck which was described as dangerous at the time although in the end it turned out to be simple. It is also on the record that in the years 1920 and 1924 there were previous murderous occurrences between the same parties in the village. At the same time the attack on the two murdered men was confined to five persons who are said to have attacked them on the order of another member of the mob, inflicting a single incised wound each. Both men are said to have fallen down immediately, and it is not said that they were further assaulted after they had fallen. In the case of the two groups which we are now considering, the injuries inflicted by them were on the whole of a simple nature, and I do not think that we are bound to conclude that all these persons when they joined the mob knew it to be likely that persons would be murdered. Taking the circumstances as a whole I think that the proper Section to apply to the case of these persons is Section 326-149. In that case the sentences passed by the learned Judge cease to be illegal, and the question of enhancement will no longer arise.

In the circumstances the learned Advocate for the appellants conceded that it would be difficult for him to contest that the account given of the occurrence by the prosecution witnesses, namely as having followed upon the grazing of cattle in the field, was a substantially true account, and the argument before us mainly confined to the question of identification. In considering this portion of the case we have been assisted by a chart to be found in the judgment of the learned Judge, which chart includes only names of persons identified by the various witnesses both before the Police and at the Sessions trial. As proof of the presence of the individual appellants in the mob, we find that thirteen of them are named, in the first information, and that all these persons are identified by five or more persons with the exception of Sheopujan Koeri and Radha Koeri who have been identified by three witnesses only. The case of these persons appears to be identical with that of Mukhlal who has been acquitted, and as no reason has been suggested for the differentiation that has been made in their case, I would give them the benefit of the doubt. The remaining eight appellants are not named in the first information, but they have been identified as present by not less than six witnesses each. It does not follow that the first informant himself must have identified all the persons who were sent up for trial, and it must be remembered that in this case the first informant was gravely injured and died the same night. I am satisfied that in the case of all the appellants except Sheopujan and Radha, their presence in the mob has been sufficiently proved.

Turning to the individual assaults, I find that all the members of the first group, namely Kuar Koeri, Parma Koeri, Sukar Koeri, Birodhi Koeri and Kishun Koeri, have been identified by six or more witnesses as being the persons who caused the fatal-injuries to Inder and Raghubir, as the result of a combined assault. The medical evidence shows that Inder received a pierc ing wound in the abdomen, four inches deep, which was the fatal injury, besides two other piercing injuries one inch deep in the neck and back, which were obviously of a dangerous character. Kaghubir died as a result of two piercing injuries in the abdomen. The evidence against these five appellants is over-whelming and there can be no doubt that they intended to cause injuries such as they knew to be likely to cause death. I would therefore uphold the convictions of these persons u/s 302 read with Section 34, Indian Penal Code. The reason given c by the learned Sessions Judge for not passing the sentence of death, namely that five persons should not be sentenced to death for the murder of two persons, is not in accordance with law nor one that can be accepted by us. But the part taken by these five persons is said to have been limited to a single blow in each case, and it is not said that they continued the assault after the injured persons had fallen. Moreover, two of these persons were themselves injured, one of them receiving no less than eight slight injuries, and the prosecution has not explained how these persons came to be injured. On the whole, therefore, I do not find it necessary to hold that the learned Judge exercised a wrong discretion in sentencing these five persons to the lesser penalty, namely transportation for life.

Out of the second group of the appellants five have been charged u/s 324, Indian Penal Code, with the assault on Peyar Lohar. All these persons have been identified by only one witness, but for some reason which has not been explained, Doman only has been convicted for this assault and the other four have been acquitted. Again we see no reason for this differentiation and are not disposed to uphold the conviction of Doman for this assault on the evidence of one witness only. Three persons, Balli, Salik and Rama, have been similarly charged with the assault on Shankar Lohar. Rama has been acquitted as having been identified by only one witness, but Balli and Salik have been convicted on the evidence of two witnesses. In the case of these persons also we feel doubt as to the sufficiency of the identification and would acquit them under this charge. Five persons have been charged with the assault on Samp, out of whom Doman has been identified by only one witness and has been acquitted. Three others, Dudhnath, Sarju and Rama, have been identified by not less than four witnesses each, and Bilas has been identified by three witnesses and his assault is also mentioned in the first information. I would uphold the convictions of these persons u/s 324, Indian Penal Code. All the members of this group have been sentenced to ten years'' rigorous imprisonment u/s 302/149, Indian Penal Code, but in the case of Bilas, Dudhnath Sarju and Rama, I would reduce this sentence to seven years'' rigorous imprisonment u/s 326/149 of the Code. The remaining members of this group, namely Doman,. Balli and Salik, are found to have taken, part in the riot armed with deadly weapons, and in their case, I would reduce the sentence to five years'' rigorous imprisonment, u/s 326/149, Indian Penal Code.

The sentences of the third group, Ramjanam. Baliraj, Dukhit, Sheopati, Sakaldip, Beyas and Kumar, namely four years1 rigorous imprisonment are upheld, but the Section is altered to Section 326/149. Two of these persons, Ramjanam and Baliraj have been proved to have been carrying spears, and their conviction u/s 148, Indian Penal Code is, therefore justified, but the remaining persons of this group are said to have been armed with lathis, and their convictions must, therefore, be changed to Section 147, Indian Penal Code. The result is that two of the appellants, Sheopujan Kderi and Radha Koeri are acquitted. The convictions and sentences of the appellants, Kuar, Parma, Sukar, Birodhi and Kishun, u/s 302/34 are upheld as well as their-convictions u/s 148, Indian Penal Code. The convictions of Billas, Dudhnath, Sarju and Rama u/s 302/149 of the Code are altered to Section 326/149, and their sentences are reduced to seven years'' rigorous imprisonment. Their convictions u/s 148 and 324 are upheld. The convictions of Doman, Balli and Salik are also changed from Section 302/149 to Section 326/149 and their sentences are reduced to five years'' rigorous imprisonment. The convictions of these persons u/s 148, Indian Penal Code, are upheld, but their convictions u/s 324 are set aside. The appeals of the remaining appellants, Ramjanam, Baliraj, Dukhit, Sheopati, Sakaldip, Beyas and Kumar are dismissed with the exception that the convictions of all these persons, except Ramjanam and Baliraj, u/s 148 are altered to Section 147, Indian Penal Code.

Mohammad Noor, J.

I agree.