Rai Hari Prasad vs Emperor

Varma, J.—This is an application on be-half of one Rai Hari Prasad who was convicted by a Magistrate of the First Glass of Gaya u/s 147 read with Sections 109, 353, read with Sections 109 and 379, read with Section 109, I.P.C. and sentenced to undergo rigorous imprisonment for three months u/s 147 read with Section 109, no separate sentences having been passed under the other two sections.

On appeal the conviction u/s 379 read with Section 109 was set aside, as the Public Prosecutor conceded before the learned Additional Sessions Judge that no case u/s 379 read with Section 109 was made out. The application in revision is therefore against the conviction u/s 147 read with Section 109 and Section 353 read with Section 109 and the sentence of rigorous imprisonment for one month and a fine of Rs. 100, in default two months'' further rigorous imprisonment which was awarded by the Court of appeal. The case of the prosecution was that in village Kurkihar there is a joint Hindu family consisting of Muna Singh, Dasrath Singh, Jichha Singh and Alakhdei Kuar. One Jamuna Prasad Singh filed a suit against these people and got a decree, and in execution of the decree sold up their lands in that village and got dakhaldehani over the land. After dakbaldehani Jamuna Prasad Singh sold the lands towards the end of November to the petitioner''s wife Mt. Krishna Devi. About that time the members of the family of Muna Singh had raised an objection before the civil Court on behalf of Alakhdei Kuar for saving the property and crops from the decree-holder and his successor in interest. Rai Hari Prasad about that time began to cut paddy on those fields, and in order to protect his labourers from any opposition from Jichha Singh, had arranged to send a few armed men to the field. Then began the preliminary tactics which preceded the date of occurrence. On 29th November 1935, Muna Singh lodged a sanha (Ex. 6) about the likelihood of a breach of the peace in connexion with certain fields between the informant and Rai Hari Prasad whereupon a constable was deputed to prevent a breach of the peace. Then we find another sanha (Ex. 8) lodged on 1st December 1935, by the chaukidar of this village Kurkihar, as a result of which the Sub-Inspector started with a constable to take preventive measures. Cutting of paddy went on peacefully on the 1st December, and nothing untoward happened on that date but it appears that Muna Singh, as a desperate measure went to consult a lawyer at Gaya on whose advice apparently it was decided to file a petition before the Deputy Superintendent of Police on behalf of Alakhdei Kuar. The petition (Ex. 4) was filed before the Deputy Superintendent of Police who sent it on to the Inspector of Police. The Inspector went to the spot with Mr. Ashutosh Verma, a lawyer of the family of Muna Singh, and Kameshwar Prasad, a lawyer''s clerk. When they reached the village an occurrence took place, which was the subject-matter of another prosecution. It appears that the case of the prosecution in that case was that Jichha Singh was chased by seven or eight people armed with lathis and that Jichha Singh sought the protection of the Inspector from these persons. That case was tried by the same Magistrate who convicted the accused in that case, but on appeal the convictions were set aside. I had occasion to look into that judgment because the lower appellate Court in the judgment in the present case says that he has summarised the facts because he has dealt with it more fully in the previous judgment. The incident that ended in the present conviction arose after the first one, and that was after the inspector had asked the lathis in the hands of several persons to be taken away. The lathis were collected and put in charge of one chaukidar. It appears that after the lathis were taken away the men of Rai Hari Prasad went empty-handed to the Kacheri, and the prosecution story is that after they gave out their version of how they lost their lathis Rai Hari Prasad instigated them to commit a riot as a result of which the lathis were snatched away from the hands of the chaukidar. All the accused pleaded not guilty to the charge; but we are concerned with the defence set up by Rai Hari Prasad. His case was that he was falsely implicated in the case at the instance of some of his old enemies. The rest of his defence is apparent from his written statement in which certain arguments are advanced against the prosecution story. In view of the conclusions which I have arrived at after hearing Mr. Sahai on behalf of Rai Hari Prasad, and Mr. S.M. Gupta on behalf of the Crown and going through the record of the case, I think it necessary to give in extenso the charges which have been framed against Rai Hari Prasad.

First--That you on or about the 2nd day of December 1985 at Kurkihar, P.S. Wazirganj, District Gaya, abetted by instigating Kesheo Missir and others in the commission of an offence u/s 147, I.P.C., namely, being members of an unlawful assembly the common object of which was to commit an offence u/s 353 as detailed in the second head of charge below, and (ii) by means of show of criminal force to compel Parbhoo Singh, chaukidar, to do what he was not legally bound to do, viz., to give up the lathis which were in the custody, and force was used by some of them in furtherance of the common object aforesaid and thereby committed an offence punishable u/s 147/109, I.P.C., and within my cognizance.

Secondly--That you, on or about the 2nd day of December 1935, at Kurkihar abetted by instigating Kesheo Missir and others in the commission of an offence u/s 353, I.P.C., viz. assaulting (gesture, knowing it to be likely that it would cause persons present to apprehend that criminal force was about to be used to them) public servants, namely, Babu Naubat Prasad Singh, Inspector, S.I. Babu Baikunt Singh, constable, Basudeo Singh, Prabhu Singh chaukidar in consequence of their acts in the lawful discharge of their duties as such public servants, viz. prevention of the breach of peace, and thereby committed an offence punishable u/s 353/109, I.P.C., and within my cognizance.

Thirdly--That you, on or about the 2nd day of December 1935, at Kurkihar, P.S. Wazirganj, Gaya District, abetted by instigating Kesheo Missir in the commission of an offence u/s 379, I.P.C., viz., committing theft of the seized lathis from the lawful possession of Prabhu Singh, chaukidar, and thereby committed an offence punishable u/s 379 read with Section 109, I.P.C., and within my cognizance. And I hereby direct that you be tried by this Court on the said charges.

Now, dealing with the first charge, one does not get any idea as to what the prosecution story was and as to how Rai Hari Prasad instigated or abetted the offence of rioting. This is of importance inasmuch as the finding of the Court of appeal below does not disclose the exact words which are alleged to have been spoken by Rai Hari Prasad and the exact expression used by him which have been taken to amount to an instigation of the offence of rioting. It was a result of this that I was obliged to look through the evidence to find out what the prosecution case really was. On this point the evidence of three witnesses examined on behalf of the prosecution is of importance. The evidence of Ishar Singh (P.W. 5), Ramprasad Singh (P.W. 6) and of Saligram Singh (P.W. 7) has been referred to in the judgment of the lower appellate Court in the following terms:

Other witnesses have come forward and have deposed to having heard Rai Hari Prasad giving orders. All these persons are alleged to be on inimical terms with Rai Hari Prasad and not worthy of belief.

The Court of appeal disposed of their evidence by saying that:

Some of these people have been sued by Rai Hari Prasad as a zamindar and this by itself cannot make their evidence absolutely unreliable, although the value may be less.

Looking at the evidence of these persons, I find that the words attributed to Rai Hari Prasad are to be gathered from the statement of Ishar Singh (P.W. 5):

Rai Hari Prasad told them that they ought to have assaulted the Inspector and directed them to snatch back the lathis which were seized by the Sub-Inspector and to assault him.

Ramprasad Singh (P.W. 6) says:

The malik ordered them to take back all the lathis and to assault whoever he might be.

A similar statement is made by Saligram Singh (P.W. 7). But curiously enough although the occurrence tools: place on the 2nd December these witnesses were not examined before the 6th December, and from the evidence of the Sub-Inspector it appears that neither P.W. 5 nor P.W. 6 had mentioned before him the fact that the Rai Saheb had ordered to assault whoever the person might be. The fact that there has been litigation in the past between these persons, who directly connect Rai Hari Prasad with the instigation of the riot, may or may not by itself be enough to discard the evidence altogether; but when we have clear indications that they are trying to improve the story which they have already given out, one can safely infer that these litigations have made them witnesses on whose credibility it is not safe to rely. In the absence of any definite information as to what the words actually used by Rai Hari Prasad were, the other circumstances referred to by the learned Judge upon which he has relied to base his conviction, lose much of their force. In the absence of any definite reliable evidence as to the exact words used by him, it is not safe to convict him for abetment of the offence. In view of the submissions made by the counsel for the petitioner that the name of the accused does not find place in the first information report, I looked at the original first information report to which I find attached a translation evidently made at the time when the appeal was being heard. The translation does not give any idea as to the real nature of the entries in the first information report. The first information report does not mention the name of Rai Hari Prasad as one of the accused. But as we proceed with the narrative of Parbhu Singh chaukidar towards the end of the information while describing what the rioters did after they had snatched away the lathi from the chaukidar, he says that Kesho Missir twisted his hand and took away all the lathis and gave them to Saudagar Kahar, Prasad Singh, Chulhan. Singh, Mehdi Singh, Matukdhari Singh, Bhuan Kahar, and when the constable who was about 8 to 10 paces ahead came back running, then these people began to brandish their lathis, saying "ke malik ka hukum lathi chhin leneka hai", and then they became ready to commit a riot. The expression which is quoted above has been written between two lines in smaller letters. The statement, as it stood without this addition, was complete in itself. Evidently this expression implicating the malik was an afterthought. This is the only thing in the first information report apart from the fact that the accused were the servants or followers of Rai Hari Prasad which connects the latter with this particular riot, and coming as it does in the shape of an afterthought, the weight of the evidence of the three witnesses upon which the lower Court has relied, is lessened still further. The finding of the lower appellate Court about the taking away of the lathis is as follows:

It is also proved that Kesho Missir took the lathis from the chaukidar and this process necessarily meant force on the chaukidar.

Later on he says:

The lathis were taken by the Sub-Inspector and given to him. So practically the lathis, were in the possession of the police officers, who had come there on duty to preserve the peace and the appellants took away the lathis from their possession by show of criminal force and this is sufficient to bring them under the charge of having committed assault on a public servant.

The story that the hand of the chaukidar was twisted, evidently does not find place in the findings of the lower appellate Court. In the result, without expressing any opinion with regard to the guilt of the other co-accused whose case has been admitted and is now numbered Criminal Revision No. 377 of 1936, the materials upon which the lower Court has based the conviction of the present petitioner, are, in my opinion, not enough to warrant a conviction. At any rate, it may be one of those instances in which, when two parties are fighting, each party attempts to rope in the biggest man on the other side. I feel on the materials before me that the petitioner is entitled to the benefit of doubt and is therefore, acquitted. His bail bond will be cancelled and the fine, if paid, will be refunded.