Mahanth Jagdish Das and Others vs Emperor

James, J.—At Pacharhi which is about 17 miles from Darbhanga, there is an asthal of which the present mahant is a young man who recently came of age. His manager and general attorney is the petitioner Damodar Narain Chaudhuri. During his minority, the mahant was under the tutelage of his natural father; and it appears that on the termination of his minority an attempt was made to demonstrate that he was still under age, but the mahant was declared to have come of age on 24th July 1936. A predecessor of the mahant had founded a Middle English School in the village, for the endowment of which he purchased some property in the character of President of the school; and though there is no regular trust deed, it appears that this property has been treated as set aside for the purposes of the school. The reigning mahant has been described as proprietor of the school, but in order to secure recognition by Government, it was necessary to comply with the requirements of the Education Code, and to appoint a regular managing committee. There was irregularity in the appointment and work of the committee, which led to protests from inspecting officers of the Education Department during the year 1934, with the result that a new committee was appointed consisting of the proprietor and two members nominated by him with other members elected by parents of the boys attending the school. The secretary of this committee was Babu Ramji Choudhuri, a pleader of Darbhanga, while two other lawyers of Darbhanga, Babu Nageshwar Misser and Babu Rambhujawan Jha, were members of the committee nominated by the proprietor, that is to say by the guardian of the mahant. When the mahant came of age he desired to assume active control of the school in his capacity of proprietor independently of this committee, and he desired that it should be recognized that he had the power of removing members whom he did not like, since the school was really his, because he provided the funds for its management. There was correspondence on this subject between the mahant and the secretary of the school, attended by a certain amount of exasperation, as a result of which a long period passed without a meeting of the managing committee, and inspecting officers again protested. The District Inspector of Schools was of opinion that the mahant could not remove members of the committee, but that they must be ballotted out at a meeting, whereas the mahant was determined that no meeting Bhould be held until the committee was reconstituted in accordance with his wishes. The Inspector had been insisting that a meeting should be held; and on 19th March 1937 he informed the secretary that the meeting of the managing committee should not be postponed on the grounds taken by the president, that is to say by the mahant. The Secretary, Babu Ramji Chaudhuri, summoned a meeting of the committee for 30th April 1937 of which the agenda was set out in a notice. This was, the sanction of leave of masters; to consider a petition of the teachers regarding their arrears of pay; to consider the questions of free studentship and of the appointment of a second master: to consider the orders of the president against a master Pandit Kedar Nath Chaudhuri; to consider the correspondence between the president and the secretary; to consider the resignation of a member of the committee, Babu Nageshwar Misser, and to ballot out one-third of the members of the committee. When the mahant received notice of this meeting, he replied that he would not permit it to be held. The secretary replied, pointing out that the school was not the personal property of the mahant; that he could not disband the committee by a mere stroke of the pen, and that the meeting must be held whether the mahant liked it or not.

On the afternoon of 30th April, Ramji Chaudhuri set out in a motor car from Darbhanga for the village taking with him Babu Nageshwar Misser, Babu Rambhujawan Jha and Babu Srinarain Das. On his way he called at the police station to ask for an escort to prevent a possible breach of the peace. The Assistant Sub-Inspector Babu Nand Singh was deputed to accompany Ramji Chaudhuri with a constable to Pacharhi. When they arrived they found a party of twenty five men or more gathered on the west of the school building. At noon on that day four servants of the mahant, Jaldhar Jha, Mauje Misser, Ritlal Jha and Yakub Khan armed with lathis had come to the school compound and remained on watch beneath a mango tree. At about 4 P.M. two other men Udit Narain Jha and Subhadar Misser, also armed with lathis, came to the place in the mahant''s motor car.

They were followed by about twenty or twenty-five other men armed with lathis who joined them in the school compound. When Ramji Chaudhuri''s party arrived from Darbhanga this mob surrounded the car. The Assistant Sub-Inspector asked them what they were doing, whereupon the petitioner Udit Narain Jha said that the mahant Jagdish Das and his manager Damodar Narain Chaudhuri had ordered that no meeting should be held, and that they were to attack Ramji Chaudhuri if he came to hold a meeting. The Assistant Sub-Inspector ordered the mob to disperse, and said that no meeting would be held, to which Ramji Chaudhuri assented and ordered his driver to turn the car round to return to Darbhanga. Thereupon Udit Narain Jha said that the order of the mahant and Damodar Narain Chaudhuri was that Ramji Chaudhuri should be beaten whether he held a meeting or not. Ramji Chaudhuri was attacked while he was in the car by lathis thrust through the door; the screen glass at the back was broken and he was assaulted by lathis thrust through the hole from behind; Ramji Chaudhuri emerged from the car and attempted to run away, but he was not permitted to run away and he was severely assaulted.

When the mob desisted from assaulting him and he had been assisted into the car, Udit Narain Jha told the mob not to allow the car to move, and to beat the driver and cut the tyres if he tried to start. While Ramji Chaudhuri''s car was thus detained, Udit Narain Jha, Subhadar Misser, Mohit Lai Jha and Ritlal Jha took the head, master inside the school. There in the western verandah Udit Narain took a piece of paper from his pocket and told ,the head, master that Damodar Narain Chaudhuri had ordered that he should write a report in that form. The form of the draft was as follows:

Sir, I have the honour to state that Ramji came at 4.30 P.M. with hasari. The men of Asthan prevented him from coming; for this he ordered them to beat and asked them to enter the school. Therefore the occurrence took place. I do not know who beat any one.

The head-master objected to copy this draft and adopt it as his own report, because the report was not true; but he was forced to write the letter addressed to Babu Damodar Narain Chaudhuri at Pacharhi. When Udit Narain had secured the letter, he took it with the draft and went away in the mahant''s car. After this, Ramji Chaudhuri and his companions were able to return to Darbhanga, where Ramji Chaudhuri went to the hospital. He had on his person thirteen injuries, wounds and bruises, on account of which he was an indoor patient in the surgical ward until 11th May. When he was discharged on 11th May, the Civil Surgeon, Lt. Colonel John, certified that he still had a slight wound remaining on his skull and bruises all over his body and that he would not be able to follow his ordinary pursuits for another two weeks. The head master''s letter was duly delivered to Damodar Narain Chaudhuri, who made an endorsement on it that he received it at Laheriasarai at 7 P.M. and forwarded it to the Sub-Inspector of the Darbhanga police station who received it at 7.20 P.M. A report of the occurrence was also sent to the officer in charge of the Darbhanga police station by the Assistant Sub-Inspector Nand Singh.

In the morning the investigating officer, after visiting Ramji Chaudhuri in the hospital at Darbhanga, arrived at Pacharhi at 11 A. M., when the head master made his statement of how the report to Damodar Narain Chaudhuri had been extorted from him, stating that the draft which he had been ordered to copy was in the handwriting of Damodar Narain Chaudhury.

Two cases were instituted, the first dealing with the attack on Ramji Chaudhuri on the west of the school building, in which the mahant and Damodar Narain Chaudhuri were charged with abetment, and the second dealing with the extortion of the report from the head master in which Damodar Narain Chaudhuri was charged with abetment. The trial Court found the mahant and Damodar Narain Chaudhuri guilty of abetment of rioting: and of the causing of grievous hurt. The mahant was fined Rs. 800, and Damodar Narain Chaudhuri was sentenced to nine months'' rigorous imprisonment. The members of the mob who actually took part in the assault were sentenced to various terms of imprisonment and to fines, for rioting, and for wrongful restraint for the detention of the motor car, while Udit Narain Jha and three other men were also separately convicted and sentenced u/s 325. Ritlal Jha and Birja Gope were fined further u/s 427, I.P.C., for causing damage to the car. In the other case all the persons charged with extorting the false report from the headmaster were sentenced to six months'' rigorous imprisonment u/s 347, I.P.C., while Damodar Narain Chaudhuri received a similar sentence for abetment.

On appeal the convictions u/s 325 were altered to convictions u/s 323, I.P.C., and the separate sentences were set aside. The sentence of fine on the mahant was set aside, and he was bound down u/s 562, Criminal P.C. The sentence on Damodar Narain Chaudhuri was reduced to one of six months'' rigorous imprisonment, while the sentences u/s 341 read with Section 149, I.P.C., were set aside, though the conviction was affirmed. The sentences u/s 427 were reduced. In the other case in which Damodar Narain Chaudhuri and the four men had been convicted in respect of the extortion of the report from the headmaster, the convictions and sentences were affirmed.

Mr. Manuk on behalf of the mahant and Damodar Narain Chaudhuri argues that in neither instance is the evidence sufficient to support the conviction. Mr. B.N. Mitter on behalf of the other petitioners argues that, apart from those who are proved to have actually inflicted blows, there is no evidence of any overt act against them and they ought not to have been convicted, because they may have been attending out of curiosity as mere spectators. So far as the convictions u/s 347 are concerned, both Mr. Manuk and Mr. Mitter point out that the head master, although the Assistant Sub-Inspector was about the place for two hours or more after the mob had de. parted, made no complaint to him of the extortion of the report; and neither he nor the teachers who professed to have witnessed it said anything about it until the investigating officer arrived in the morning, Mr. Manuk also draws attention to the fact that although in evidence Udit Narain Jha is said to have remarked that the mahant had offered a reward to anyone who would beat Ramji Chaudhuri, that particular fact finds no mention in the Assistant Sub-Inspector''s first information.

These questions, of whether the fact that there was a delay in giving the information to the police, or of whether the omission to mention in the first information cries stated to have been made by witnesses when they gave evidence is to be taken as affecting the credibility of the evidence, are essentially questions for the trial Court and the Court of Appeal; and I do not consider that any special case has been made out which would warrant my criticising their findings of fact in revision on the ground that more weight ought to have been attached to such grounds of cribicism in considering the evidence. The head master was evidently very much shocked and frightened; and the staff as a whole went to their quarters and remained there, preferring to do nothing more until the arrival of the investigating officer. It is to be re membered that the asthal from which the mob had come was quite a short distance away from the school and within sight of it. I do not consider that I should be justified in declining to accept the findings of fact of the learned Sessions Judge, so far as he finds that witnesses for the prosecution were speaking the truth.

Mr. Manuk suggests that the evidence on which the mahant and Damodar Narain Chaudhuri have been convicted was not admissible against them and that even if it should be regarded as admissible, it is not sufficient to support a conviction. The learned Sessions Judge has pointed out that the abetment of which the mahant and Damodar Narain Chaudhuri have been convicted is essentially abetment of the kind described in Part 2, Section 107, I.P.C., of abetment by conspiracy of the attack on Babu Ramji Chaudhuri, so that the statement of Udit Narain Jha and Ritlal Jha that the order of the mahant and Damodar Narain Chaudhuri was to assault Ramji Chaudhuri whether he held the meeting or not, was admissible u/s 10, Evidence Act, as a statement made relating to a conspiracy.

The terms of Section 10, Evidence Act, are very wide and it cannot be said that the statements are inadmissible against the mahant and Damodar Narain Chaudhuri; but the question remains of what is to be regarded as proved by these statements and the rest of the evidence which would tend to inculpate these two men in the charge of conspiracy. The statements cannot be regarded altogether independently of the rest of the evidence, because they are only admissible if there is reason to believe that the persons named have been engaged in conspiracy.

The provisions of Section 10, Evidence Act, framed for the purpose of preventing purely technical objections, would appear to bar out the objection that the evidence could not be admitted until the conspiracy had been proved, because the Section provides that the statements may be used to prove the existence of the conspiracy. With these very wide provisions of Section 10, applying to acts done in connexion with the conspiracy, an act done by the third person may possibly in certain circumstances be actually treated as evidence of the existence of the conspiracy; as for instance when an act is done or something is said in the presence of the person implicated. The rule has been made very wide, for the exclusion of purely technical objections, but nothing in the Evidence Act affects the real logical effect of such, evidence. These mere statements of third parties made in the absence of the person implicated form a class by themselves of no probative value whatever standing alone.

Mr. Manuk points out that if Udit Narain Jha had been in the witness-box giving evidence, corroboration would ordinarily be required indicating not only that a conspiracy existed but that the persons named had a part in it. If Udit Narain were co. accused confessing in the dock, though the confession might be taken into account u/s 30, Evidence Act, a conviction could not be based on the confession alone, and independent evidence would be required. The terms of Section 10, Evidence Act, do not, in my judgment, permit of the attaching of weight as real evidence to mere statements of this kind made in the absence of the accused; and the independent evidence required as corroboration of such a statement must be something very much more than the evidence which may ordinarily be regarded as corroborating the evidence of an accomplice. It may be circumstantial evidence or direct evidence. It must in my judgment, be evidence which standing alone would be properly treated as evidence for a jury of proved intention, so that there would be evidence for a jury, apart from the statement of the alleged fellow conspirator, incriminating the person charged. The evidence must be proof of intention, and not merely proof of a possible motive for the intention.

In the present case, so far as the mahant is concerned, the only evidence in corroboration of these statements of Udit Narain and Ritlal Jha is evidence tending to show that the mahant intended to prevent members of managing committee from entering the school premises. The fact that Udit Narain arrived in a motor car belonging to the mahant carries us no further, and there is nothing in this evidence which tends to show that the mahant intended that Ramji Chaudhuri should be assaulted whether he held a meeting or not. While Ramji Chaudhuri''s car was being detained, Babu Nageshwar Misser went to the asthal where he met the Mahant whom he requested to interfere; but the mahant said that he had told Ramji Chaudhuri not to come. The suggestion that the mahant was innocent of the assault would be more convincing if the mahant on learning of what his servants were doing had gone to the school to interfere; but he is a young man of slight intelligence; and mere abstention from interference when he was himself away from the scene may give rise to suspicion but it cannot be regarded as proof of complicity.

On the question of whether the mahant committed an offence by excluding the committee from the school without the actual use of force, it is difficult to speak with certainty, because the question of his actual rights as proprietor of the school is apparently so debatable; but the offence of which the petitioners have been convicted is that of wantonly beating Ramji Chaudhuri after he had abandoned the intention of entering the school. I do not consider that the corroboration of Udit Narain''s statement is sufficient to warrant the conviction of the mahant for abetment by conspiracy. The real instigation evidently came from Damodar Narain Chaudhuri. He may have told Udit Narain that he was acting on the mahant''s authority and the mahant may have been ignorant of his orders. It appears to be significant that the name of Damodar Narain is coupled with that of the mahant in these cries of Udit Narain.

The learned Sessions Judge has remarked that the case of Damodar Narain stands on a different footing because he is clearly inculpated by the draft report which the head master was compelled to copy. When the evidence is accepted that this draft was in the handwriting of Damodar Narain, it is clear that Damodar Narain sent out Udit Narain intending and expecting that Ramji Chaudhuri would be beaten.

Mr. Manuk argues that the fact that the draft report was in the handwriting of Damodar Narain has not been proved. Section 47, Evidence Act, lays down that when the Court has to form an opinion on the question of the person by whom a document was written, the opinion of any person who knows another person''s handwriting that the document was written by that person is a relevant fact. Mr. Manuk suggests that this only permits of a finding by the Court when the document is before it; but it is difficult to see how when a person says that this document is in the handwriting of somebody whom he knows, the Court is to be assisted by examination of the document, since the Court is not familiar with the handwriting of the person by whom the document is said to have been written. Evidence of a handwriting expert making comparison, not from his personal knowledge of the handwriting, but from mere comparison of one document with another, stands on a different footing. Mr. Manuk suggests that because when giving evidence the head master merely said that the draft was in the handwriting of Damodar Narain without also stating that he knew the man''s handwriting, his evidence does not amount to proof of handwriting. The learned Sessions Judge has pointed out that there is ample evidence to show that the head master was familiar with the handwriting of Damodar Narain; and indeed when giving evidence the head, master actually proved that he acted as clerk or amanuensis to Damodar Narain on occasions. Mr. Manuk quotes the decision in In re B. Venkata Row (1913) 36 Mad. 159 wherein Sundara Ayyar, J. remarked that when a witness had said that the documents were in the appellant''s handwriting without saying how he was acquainted with the handwriting, this was not legal evidence of knowledge of the handwriting of the accused. The more correct view, if I may say so with due respect, appears to me to be that expressed by Sir Lawrence Jenkins in Sankarrao Gangadhar Ramji Harjivan (1904) 28 Bom. 58 wherein he approves of the proposition that the witness need not say in the first instance how he knows the handwriting, since it is the duty of the opposite party to explore on cross-examination the sources of his knowledge if he is not satisfied with the testimony as it stands.

In the present case, when the head master stated that the document was in the hand, writing of Damodar Narain, that is evidence of fact. It is not rendered inadmissible by the absence of the mere statement "I know his handwriting", particularly when his evidence throughout indicates that he must have been acquainted with the handwriting of Damodar Narain. It cannot be said that by retaining a document and taking it away, an accused person puts it Out of the power of the witness to whom the document has been shown to give evidence regarding the handwriting of that document. The trial Court and the learned Sessions Judge have accepted the evidence of the head master as proof that this document was in the handwriting of Damodar Narain and I consider that they were justified in doing so. In that view of the matter the abetment by conspiracy of the attack on Ramji Chaudhuri is proved and the conviction of Damodar Narain in the case out of which application in Cri. Revn. No. 21 arises must be affirmed.

Mr. Manuk argues, that although if the letter was in the handwriting of Damodar Narain Chaudhuri it might afford evidence of abetment of the beating of Ramji Chaudhuri, it cannot be treated as evidence of abetment of extortion of the head master''s report. Udit Narain''s statement to the head master that Damodar Narain Chaudhuri had said that he must be forced to give a report, since we know that there was a conspiracy between Udit Narain and Damodar Narain to beat Ramji Chaudhuri, is sufficiently corroborated by the draft itself; and I consider that the conviction of abetment in the second case should also be maintained. An outrage like this must not go unpunished and Damodar Narain Chaudhuri, though he may be an old man cannot be sentenced otherwise than to imprisonment.

The result is that for mahant Jagdish Das the finding and sentence is set aside and he is acquitted. For the rest of the petitioners in both the cases, the findings and sentences are maintained, but all sentences of imprisonment other than those of imprisonment in default of payment of fine in the two cases may run concurrently.