Nathuni Nonia and Others vs Emperor

Adami, J.—The Assistant Sessions Judge of Patna, in agreement with the verdict of the majority of the Jury has convicted the petitioners Ajodhya Dubey, Dhanukdhari Dubey, Nathuni Dubey, Jehal Mahton, and Nathuni Nonia u/s 148 of the Indian Penal Code and sentenced them to six months'' rigorous imprisonment and 2 1/2 years'' rigorous imprisonment u/s 304 : Mosafir Dubey and Thakur Nonia have been sentenced to six months'' rigorous imprisonment u/s 148 and to one year''s rigorous imprisonment u/s 304 read with Section 149; the rest of the petitioners have been sentenced to four months rigorous imprisonment u/s 147 and to one year''s rigorous imprisonment u/s 304 read with Section 149.

It appears that there was trouble between the landlords of village Basta and their tenants. In August, 1925, the tenants including some of the petitioners, filed applications for commutation u/s 40 of the Bengal Tenancy Act, and then in November of the fame year the landlords filed applications for division of the crops u/s 69 of the Bengal Tenancy Act. In January, 1926, the tenants wanted to remote the crops and both sides were prepared to use force when the Sub-Inspector visited the village. In spite of the Sub-Inspector''s warning, the tenants removed crops from 2 1/2 bighas of the land and then the Magistrate issued notices u/s 144 of the Criminal Procedure Code, both against the landlords and the tenants. An amin was deputed to get the crops reaped and stored in a kalihan in village Basta.

It happened that several of the tenants had transferred portions of their holdings to others without the consent of the landlords, and, when the landlords made applications u/s 69, they named the original tenants as the persons against whom they proceeded, ignoring those who had purchased portions of the holdings. The result was that the original tenants, against whom applications had been made u/s 69, at the instigation of the landlords took advantage of the fact that they had been named as tenants and sought to take the crops which had been grown by those to whom they had sold a portion of their holdings.

On the 21st March, 1926, the petitioner Tota Nonia came to the Police Station at Chandi and gave information that Chakauri Nonia, who had sold if bighas to him 10 or 12 years before, was now preventing him from reaping the khesari crop at the instigation of the amla of the landlord, and was making preparations to fight.

On the 22nd March, 1926, at 9-30 a.m. Ganesh Choukidar gave information at the Police Station similar in effect to that given by Tota the day before. He said that the amin had got paddy cut and stored in the kalihan and that Chakauri and another went to Tota''s khesari field to cut the crop and Tota Nonia obstructed him; men were being collected by Tota and lathis were being carried by both sides.

The case for the prosecution was to the effect that when the amin and a daffadar and choukidar and three watchmen were at the kalihan a mob of some 200 or 250 men advanced to the kalihan from Basta village and proceeded to remove bundles of the crops stored there. Karmu Goala, one of the watchmen, obstructed them, and thereupon the petitioner, Ajodhya Dubey, gave orders to beat the watchman, and thereupon the petitioners Gehal Kurmi, Nathuni and Dhanukdhari struck Karmu on the head with swords; he ran away, and was pursued and fell near a Siris tree, 40 paces northwest of the kalihan and there Adjodbya speared him in the stomach with a bhala and Nathuni speared him with a barcha on the body, and others of the mob also struck him. Karmu''s brother Karu remonstrated and thereupon be was struck with a sword by Nathuni. Karu fled and went towards the, Police Station. He met the Head Constable at a place called Bhatahar and lodged information.

After injuring Karmu and Karu, the mob dispersed. Karmu died from the injuries he received and Karu was seriously injured. The Head Constable sent information to the Sub-Inspector and himself proceeded to Basta, where he arrived at 12-30 p.m. and found paddy scattered outside the kalihan and brickbats inside and outside. He found blood leading from the kalihan to the Siris tree. Karmu was hardly conscious and died sometime afterwards. At about 5-30 p.m. the Head Constable found Gopal Nonia and Bhairo Nonia injured, and Gopal made a statement to the Head Constable to the effect that that morning Chakauri Nonia with others had come to cut Tota''s khesari and had threatened to beat them when Chaukauri caught Tota by the wrist and began to drag him. Gopal and Bhairo went up and remonstrated. Thereupon the gomashta of the landlord brought a mob of 100 to 125 men from the north-east and gave orders to beat Tota. In the mob Gopal recognised Karmu and Karu Goala. The mob ran to beat Gopal and Tota, and so they fled towards the basti to the south of the field chased by the mob. In the field of Badhu Nonia, the mob caught up Gopal, and Chakauri assaulted him with a lathi, while Jodha Nonia also beat him with a lathi. The mob then took away bundles of khesari. An investigation was held and the Police sent up the 13 petitioners and others for trial on the information given by Karu.

In the original charge drawn up against the accused, so far as the offence of an unlawful assembly is Concerned, the common object was stated to be to loot the paddy crops lying in the kalihan for division u/s 69 of the Bengal Tenancy Act. After examining seven or eight witnesses the Assistant Sessions Judge made an addition to the charge with the words, "and to assault the landlord''s man Karu Gope and others."

The petitioners produce no evidence in defence other than the Sanaha (Ex. A) which bad been lodged by Tota on the 21st of March.

After hearing all the evidence, the Jury by a majority of 3 to 2 found the petitioner guilty under the sections I have mentioned above. An appeal was made to the Sessions Judge of Patna on the ground that there had been several misdirections in his charge to the Jury by the Assistant Sessions Judge. The learned Sessions Judge, however, found that in none of the points put forward was there any misdirection and he dismissed the appeal.

Mr. Sachidananda Sinha has confined himself before us to three points on which he urges that there has been a misdirection to the Jury.

His first point is that the Assistant Sessions Judge in charging the Jury placed before them an absolutely hypothetical case not warranted by the evidence on record and thus misled the Jury. It is to be noticed that the prosecution evidence made no mention of any occurrence on the field of Tota Nonia, it was the prosecution case that the petitioners and others had come in a mob up to the kalihan to loot the paddy and get back their crops and also to assault Karu and others. After pointing Out that many witnesses had given evidence that the mob advanced from the Basta busti and came up to the kalihan and thereafter the assault commenced at the kalihan, the learned Assistant Sessions Judge charged the Jury to the following affect:

In this connection you should look to the defence story appearing from the evidence of the Writer Head Constable, the First Information Report Ex. 13, the statement of Gopal Nonia and the written statement in the record. You will consider whether a reading together of all these documents does or does not show that Tota Nonia and his party being worsted by the party of Chakauri Nonia at the 3 kathas plot of khesari khet represented by the figure 4 in the plan fled into the basti, and, whether the same does or does not indicate that thereafter they reinforced themselves in the basti and advanced to meet the other side. If you accept as true the prosecution evidence on the point you will be in a position to say that the assailants advanced from the basti to the place of occurrence. You will, however, have to consider, what the immediate occasion was for the said advance of the mob. The defence suggests that the assault on the said Karmu wag the sequel to the looting of khesari by Chhakauri Nonia with the aid of the landlord''s men from plot No. 229, represented by the figure 4 in the plan. The evidence on the side of the presecution also goes to show that an incident preceded the advance of the mob towards the kalihan". Later on the learned Assistant Sessions Judge said.--"If you find that the said Chakauri Nonia, with the help of the landlord''s men, not only removed the khesari from the above plot but assaulted the men of Tota Nonia, you will have to consider whether the party of Tota Nonia would calmly submit to or highly resent the highhandedness of the opponents and would at the earliest opportunity gather their supporters and advance to teach the said opponents a sound lesson.

Now Mr. Sinha objects that it is no part of the prosecution case that there was an occurrence on the field of Tota, a quarter of a mile north of the kalihan nor is there any evidence that, after such occurrence, the petitioners went to the busti and came back to wreak vengeance, and, therefore, the case made out by the learned Assistant Sessions Judge is a creation of his own mind and hypothetical. That being so, he was wrong in putting that case to the Jury and thus misled them.

The case of Banga Hadua v. Emperor Ind. Cas. 771 : 11 C.L.J. 270 : Cr. L.J. 245 is relied on by Mr. Sinha. There it was laid down that in cases of rioting it often happens that the Court may consider that the story told by the prosecution is false in some of its details, but is nevertheless sufficient to prove the guilt of the accused; but it is not permissible to base a conviction upon a hypothetical state of facts, which is quite unsupported by evidence, which was never put forward by the prosecution and was never suggested to the accused as being the case they had to meet.

Now in that case it was found that the story put forward by the prosecution must be false, because it was found that the prosecution party were not in possession of the land as they claimed. The Sessions Judge in that case formed an alternative case that there was not one riot but two riots and that at first the decree-holders went out and drove out the judgment-debtors, and that subsequently the judgment debtors assembled in large numbers and attacked the other side. Stephen and Carnduff, JJ., found that this second story was altogether unsupported by evidence and had never been put forward by the prosecution.

The present case, however, is a different one. Here there was material before the Court and before the Jury to show that there may have been an occurrence on Tota''s field a quarter of a mile away. The Court had before it the information given on the 21st March and also the information given by Gopal Nonia on the 22nd. There was also the report of the Choukidar Ganesh Prasad given on the 22nd at 9-30 a.m., as also the statement of the petitioner Tota Nonia in Court. The evidence also showed that the mob had come up from the Basta busti; and according to the learned Assistant Sessions Judge no paddy was looted from the kalihan. It was then necessary to find some motive for the mob having attacked the men at the kalihan. It cannot be said that there was nothing to support the case suggested by the Assistant Sessions Judge to the Jury, and I cannot see that the Jury were in any way misled by the suggestion. The prosecution had carefully avoided mentioning this previous occurrence in Tola''s field, for it would seem that two men had been injured and naturally the prosecution witnesses would not like to admit having caused those injuries.

As against the case relied on by Mr. Sinha, we have the later case of Samaruddin v. Emperor 17 Ind. Cas. 565 : 40 C. 367 : 13 CL.J. 821. There it was held that the Judge was not wrong in asking the Jury to consider as an alternative case an intermediate state of facts, namely, that the complainant''s party went to turn the accused party out of possession, was resisted and driven back, and that the latter then, followed after and assaulted the former. The case put forward there was very much like the case put forward here. Chitty and Richardson, JJ. referred to the case of Banga Hadua v. Emperor 5 Ind. Cas. 771 : 11 C.L.J. 270 : CL.J. 245 and also the cases of Queen v. Sabed Ali 20 W.R.C 5 : 11 B.L.R. 347 and Wafadar Khan v. Queen-Empress 21 C. 955 : 10 Ind. Dec. 1269 and distinguished them.

The learned Assistant Sessions Judge in this case left it open to the Jury whether they would accept the suggestion he made, and it cannot be held that if the suggestion was not accepted, the prosecution case must fail. In my opinion the Assistant Sessions Judge has made a very fair charge to the Jury and the suggestion he made was a suggestion which would occur to the mind of any person who heard the facts put forward by either side. In my mind, there is no misdirection to the Jury on this point.

The next point urged by Mr. Sinha is that the petitioners were sent up on a charge of an unlawful assembly with the common object of looting paddy stocked in the kalihan and that the addition of the words "and to assault Karu and other persons in the kalihan" amounted to an alternative charge. As the Assistant Sessions Judge did not put to the Jury the question on which of the two common objects they found the petitioners guilty and did not direct them to find which common object actuated the mob, there was a misdirection. He urges that the Assistant Sessions Judge was still influenced by his theory that the first occurrence was on Tota''s field, then there was a return to the busti followed by the attack on the kalihan, such attack being made in vengeance for what had happened on Tota''s field; and it was owing to this theory that the addition was made to the charge. He points out that there was not sufficient evidence to show that the assault happened inside the kalihan or that paddy had been looted, and, therefore, also, it was necessary to make the addition to the charge. He was leading the Jury to discard the charge of loot and believe the charge of assault and he ought to have put it definitely to the Jury to come to a finding what the actual common object was.

Mr. Sinha speaks of the additional words in the charge as an alternative charge; but in this he is not correct, for the words were not "or to assault" the landlord''s men but "and to assault"; it was not in fact an alternative charge.

The case on which Mr. Sinha relies Wafadar Khan v. Queen-Empress 21 C. 955 : 10 Ind. Dec. 1269 is a case of a very different nature. There the common object originally stated in the charge was "to use criminal force on Mir Azad and his party." Thereafter the words "or else to punish Khan Ghalib for having enticed the wife of one Sher Ali" were added. It was obvious that the common object added there was an absolutely unconnected common object and it was an alternative common object. In the present case the assault would be made as part of toe transaction of looting the crop.

The case of Samaruddi v. Emperor 17 Ind. Cas. 565 : 40 C. 367 : 13 CL.J. 821 may again be referred to. There the common object originally stated in the charge was to take forcible possession of the complainant Pandab''s land and hut. Afterwards the words "and to assault Pandab, Jojdeb, Chandra Kishore and Karam Ali" were added. It was held that the addition in no way vitiated the trial, nor was there any misdirection. One common object was alleged throughout and it could not be suggested that the accused did not know exactly what they had to meet. There is no force in the contention of Mr. Sinha that it was the duty of the Judge to find from the Jury on which common object they were depending.

The learned Assistant Sessions Judge clearly pointed out to the Jury that, even if the common object as to loot could not succeed, there still remained the common object to assault. He stated to the Jury.--"You will have to determine whether the object of the assembly was to loot crops and assault the landlord''s men or the one or the other. In any case you will have to say that the object was illegal". He also said: "You will consider whether the mention of the First Information, Ex. 7, of the alleged looting of paddy crops from the kalihan may not be due to this circumstance that the mob advanced to the vicinity of the kalihan. The evidence shows that, as a matter of fact no crops whatever were taken away and that the marpit did not take place within the kalihan". He further stated:--"I should tell you that there are two limbs in the common object as put forward by the prosecution, and that if you find that one of the said limbs has not been, but the other has been made out, that will suffice. What I mean to say is this that, if you find that the allegation that the mob advanced to loot the crops gathered at the kalihan is not proved, but that if at the same time you find that the object of the mob was to assault the landlord''s men, you will have to say that the mob was actuated by an illegal object". In my opinion the learned Assistant Sessions Judge put the position very clearly and well to the Jury and the objection cannot succeed.

The last point put forward by Mr. Sinha is that the theory formed by the Assistant Sessions Judge influenced him in charging the Jury with regard to the right of private defence, and that he still suggested to the Jury that the purpose for which the mob advanced to the kalihan was to wreak vengeance for what had happened in Tota''s field.

The learned Assistant Sessions Judge explained what the right of self-defence is to the Jury and pointed out that if the story of the prosecution that the mob advanced to the kalihan to commit assault was believed, the petitioners could not fall back upon the plea of the right of private defence, and he pointed out that there was no evidence on the record to show that the assault took place on plot No. 229 which is Tota''s field. He stated to the Jury that the evidence was that no blood marks were found in Tota''s field. Mr. Sinha points out that it was never the defence case that the assault took place on Tota''s field: the defence case was that the assault was in the field of Budhan Nonia which is not so far from the kalihan. I cannot see that this makes much difference. There was no evidence to prove that an assault happened in the field of Budhan Nonia though blood was found there; no defence evidence was called. What the learned Assistant Sessions Judge told the Jury was that the defence had failed to prove that any assault had happened when they were defending their rights. It was pointed out by the learned Assistant Sessions Judge that there was no evidence to prove that the men of Tota Nonia followed Chakauri and his party and that in the course of the pursuit the assault took place. It is true that the prosecution does not explain the finding of blood in Budhan''s field, but that does not help the defence to show that they had a right of private defence. It is true that we have Sanahas and information given by Gopal, Ganesh and Tota but those alleged occurrences are not proved by evidence and the learned Assistant Sessions Judge was quite right in directing the Jury that there was no evidence to prove the right of self-defence.

I can see no good reason to find that the learned Assistant Sessions Judge, who delivered a very careful and explicit charge to the Jury, misdirected the Jury in any way.

I would, therefore, reject the application.

Scroope, J.

I agree.