Ragho Prasad and Others vs Emperor

James, J.—The facts of this case as found by the learned Sessions Judge of Patna are as follows: The irrigation of a certain part of the land of Kaila village in the Bihar Sub-Division is affected by the erection of a dam across the river Kumrhi in order that the water thus dammed up may be diverted into the village channels. Shortly before 25th August 1927, a dam had been erected for that purpose by the landlords of Kaila and of the village Jana, which lies across the river; and irrigation had been going on peacefully.

At dawn on 25th August Ragho Prasad Singh, Nazir of the Amawan Estate, came to the place on an elephant with a mob of five or six hundred men in order to cut the dam. The watchmen who were on the dam protested; but they were attacked by a peon named Jawahir Singh and two other men. Injuries were inflicted on one of them, Budha Gop, which amounted to grievous hurt. The dam was cut but men came up from Kaila and a fight ensued; and when ultimately overpowering reinforcements came from Kaila, the mob from the Amawan side was forced to retreat. Jawahir Singh, who may have been injured in the fight, apparently found his retreat cut off by the" villagers of Kaila, who beat him to death. The Sub-Divisional Magistrate of Bihar had convicted the Nazir Righo Prasad Singh, and three other men, Jadunandan Pande, Gaya Prasad Singh, and Ghisu Khan, of an offence u/s 148, I.P.C, of having committed the offence of rioting with the common object of committing mischief by cutting the dam and of assaulting the people of Kaila, whoever might resist them; while he convicted two other men Hansraj and Munshi Mahto of an offence u/s 147, I.P.C. The Sessions Judge of Patna affirmed the convictions and sentences except in the case of Munshi Mahto whom he acquitted, being dissatisfied with the evidence of identification.

The facts as found by the learned Sessions Judge differ to some extent from the findings of the learned Sub-Divisional Magistrate of Bihar. The case originally presented was that Babu Ramsaran Prasad Narayan Singh, Manager of the Amawan Raj, came on an elephant with the mob in order to cut the dam. The watchmen protested and were beaten and the dam was then cut. Villagers came up and a free fight ensued, in the course of which Jawahir Singh on the Amawan side met his death.

The Sub-Divisional Magistrate acquitted Babu Ramsaran Prasad Narayan Singh; but for the rest his findings of fact were in accordance with this story. Colonel Harold Brown, who was then in practice as a physician in Calcutta after a distinguished career in the Indian Medical Service, was the family physician of the Raja of Amawan. He gave evidence to the effect that the injuries on Jawahir Singh were not such as could have been inflicted in the course of a free fight. The Assistant Surgeon of Bihar was of opinion that the injuries might have been caused in the course of a free fight. The learned Sub-Divisional Magistrate did not accept the opinion of Colonel Brown; and he found that the injuries had been caused in the course of the fight.

The learned Sessions Judge preferred the opinion of Colonel Brown, which certainly appears to be the more worthy of acceptance. Jawahir Singh had nearly all his ribs broken, his liver and spleen ruptured; and eleven punctured spear wounds about the face. It is certainly on the face of it improbable that so many wounds on the face would be inflicted with Spears in the course of a free fight; and Colonel Brown''s opinion would appear to be justified, that these injuries were probably inflicted by men who were kneeling on his prostrate body. The learned Sesssions Judge accordingly came to the conclusion that Jawahir Singh had been cut off in the retreat of the Amawan mob and that he had been killed by the infuriated villagers. This finding does not necessarily discredit the whole of the prosecution story; because the Kaila villagers would naturally not give a frank account of the manner in which Jawahir Singh met his death, if it had been caused in circumstances which made the killing murder, since it would be difficult in doing so to avoid making somebody on their own side responsible for the murder.

Sir Ali Imam attacks the conviction on the ground that the common object to commit mischief and to overcome by force any attempt at resistance has not been established; and also on the ground that the story told by the prosecution witnesses cannot be accepted. He argues that the manner in which the learned Sub-Divisional Magistrate has dealt with other evidence does not warrant a conviction based upon confidence in his discrimination in the matter of ascertaining what residuum of truth may be in the prosecution story after it had been rejected in some of its most important particulars. Similar arguments have been adduced by Mr. Manuk on behalf of two of the applicants.

It appears to us that on the assumption that the people of Kaila were entitled to erect a dam in order to obtain a head of water to fill their channels for the purposes of irrigation, any person who cut the dam before the channels had been filled and so reduced the amount of water available for purposes of irrigation, would commit the offence of mischief punishable u/s 430, I.P.C. It is suggested that the right to erect the dam has not been proved, but it is supported by the entry in the Record-of-Rights prepared u/s 102 (gg), Ben. Ten. Act, and admitted by the defence witness Mahado Singh. Mr. Manuk argues that the entry in the Record-of-Rights must be regarded as of no effect, because it does not specify the period for which the dam may be maintained.

On this point an extravagant claim was made by one of the prosecution witnesses; but it appears to have been assumed that there was a right to keep the dam standing until the irrigation of Kaila had been completed. The proper interpretation of the entry is obviously that the people of Kaila are entitled to keep the dam standing for a reasonable period; that is to say, until sufficient water has entered their reservoirs to enable them to irrigate the area specified; they may not keep up the dam until the actual irrigation is completed. There is evidence that the irrigation of Kaila had not been completed; but there is none on the question of whether sufficient water had accumulated for the completion of the work of irrigation.

It appears to be probable that the dam was forcibly cut but there is some difficulty in accepting the evidence of identification. The story as first told was that Ramsaran Prasad Narayan Singh, Manager of the Amawan estate, came on the elephant with the Nazir of the estate leading the mob, and that he supervised the cutting of the dam. Of the accused persons in general some were identified by some witnesses and some by others; but the whole of the nineteen witnesses who professed to identify anybody were unanimous in saying that Ramsaran Prasad Narayan Singh came on the elephant. This accused person produced witnesses to prove that he was at Gaya at or about the time when the riot occurred; but the learned Magistrate rejected their evidence with comments which must be considered later. Having rejected the evidence of alibi, the learned Sub-Divisional Magistrate came independently to the conclusion that the manager from his age and general appearance could not have been the leader of the mob; though he was only 50 years old, and he was only said to have come two or three miles on an elephant from Amawan.

The learned Magistrate made a half hearted suggestion that Ramsaran Prasad Singh''s son, who is 28 years of age, might have been mistaken for him, or the accused Munshi MaMo; but the suggestion certainly does not appeal to us and Munshi Mahto has been acquitted. The witnesses definitely say that the manager was on the elephant leading the mob; and when the learned Magistrate finds that the manager was not there, he cannot avoid the implication that he finds that the witnesses are not speaking the truth in; this respect. If the witnesses are not speaking the truth on this point on which they all agree, and if their account of the manner in which Jawahir Singh met his death is not accepted, it is manifest that considerable doubt is thrown of their identification of any other individual among the applicants. And if their evidence is to be accepted, it can only be accepted because we have confidence in the discrimination of the learned Magistrate before whom the witnesses gave evidence.

Now the story which the witnesses'' told is on the face of it improbable. We are told that a mob of about five hundred men some of them armed with deadly weapons came to Kaila, drove off the guards from the dam and then proceeded to cut it. After that a free fight ensued. This fight was of such a fierce nature that a t man of the Amawan side was killed, yet no other man had even a bruise to show 1 as a result of it. If there actually had 1 been a free fight of the kind described, is even though we assume that Jawahir''s fatal injuries were received subsequently there must have been something to show for it in the way of injuries on the persons concerned. The absence of such injuries in itself throws considerable doubt on the prosecution story and when the eyewitnesses have been found to be telling a story which is false in its most important details can we believe them for the rest when they come forward with such an improbable story as this? It appears to be clear that somebody cut the dam after beating off Indar Gop and Baudha Gop. Baudha Gop has not identified any of the men who assaulted him, while the injury on the person of Indar Gop was merely a slight contusion said to have been caused by a brickbat. If Baudha Gop had been able to identify the persons who caused his injuries which were serious, it might have been argued that it was probable that he would identify them correctly, since his resentment at the injuries inflicted upon him might be held to outweigh any desire to bring a false charge against any body else, but he did not identify his assailant.

All the witnesses who identified anybody among the accused, identified in the first place the manager who was found not to be there, and we do not think that any of the identifications can be accepted at all. When all the nineteen witnesses, who have identified anybody, have been disbelieved in the most material part of their evidence, we do not consider that the rest of the evidence can be properly treated as affording the basis of a conviction. As has been observed, we cannot accept the finding of the learned Sub-Divisional Magistrate, that although that part of the evidence on which all the witnesses agree is false, other parts ought to be accepted as true, unless we have confidence in his discrimination; and the manner in which he has treated the manager''s evidence of alibi does not impress us with such confidence. We consider, therefore, that none of the evidence of identification is sufficiently reliable to warrant a conviction; and the appellants ought to be acquitted. (Here the judgment commenting on the manrfer in which the Sub-Divisional Magistrate had treated two of the witnesses who gave evidence to the effect that on 24th August the manager was at Gaya proceeds.) The third witness in this connexion against whom the learned Magistrate has made imputations is a Sub-Deputy Collector. The learned Magistrate mentions that the prosecution asked some questions of the witness impeaching his character, as if that fact in itself proved that his character was not what it should be. The actual evidence is to the effect that the Sub-Deputy Collector takes liquor very rarely: he does not take it regularly or excessively but he takes it at formal dinners when invited to do so: not regularly at his own place. Another question suggested that he had been taken to task for some scandalous behaviour and he replied to it with a flat denial. The learned Sub-Divisional Magistrate has evidently fallen into the error of assuming that when a question is asked and the answer is ''No'' the answer should be treated as if in some way or other it had been ''Yes''. It is certainly wrong to treat this witness as discredited merely because the cross examining counsel asked some questions impeaching his character when the answers to those questions were quite satisfactory. The credit of this witness was not damaged in cross examination and he ought to have been believed.

My learned brother remarked during the hearing of this case that to find witnesses treated as witnesses for the defence have been treated in this case is discouraging to those who consider that an accused person ought to be entitled to give evidence on his own behalf and to those who would criticise the practice, too common in our Courts, of withholding, in reliance upon the abstract doctrine of the burden of proof, relevant evidence which might be adduced for the defence. If witnesses when they appear are liable to be treated as the witnesses for the defence were treated in the present case, there can be small ground for surprise if respectable persons are unwilling to come into Court to give evidence.

It must be said that the manner in which the learned Sub-Divisional Magistrate treated the evidence of these witnesses has largely weighed with us to make us hold that his discrimination in the matter of accepting some of the prosecution evidence when he has not accepted it in its most salient features, ought not to be trusted. The result is that the convictions and sentences are set aside and the applicants will be acquitted and discharged from their bail.

Jwala Prasad, J.

I agree.