Rambira Missir and Others vs Emperor

Shearer, J.—This is an appeal by three men who have been convicted by the learned Assistant Sessions Judge of Shahabad. Two of them, Rambira Missir and Harbans Missir, have been convicted u/s 304, Penal Code, and have been sentencod to undergo rigorous imprisonment for five years each. Rambira Missir is said to have caused the death of one Khublal Missir by driving a bhala or spear into hia stomach. Harbans Missir is said to have caused the death of Ramparbesh Missir by striking him a blow on the head with the shaft of a bhala. The remaining appellant, Ramparbesh Missir, has been convicted u/s 324, Penal Code, and has been sentenced to undergo rigorous imprisonment for six months. Ramparbesh Missir is said to have struck Khublal Missir three times on the head with a garasa. This, it is said, he did after Khublal Missir had collapsed on the ground when speared by Rambira. Five other men were tried along with the appellants, one of whom, Suraj Pandey, was convicted u/s 323, Penal Code, and was sentenced th pay a fine of Rupees 100, or in default, to undergo rigorous imprisonment for one month. All eight men were also charged with rioting, but on this charge they were acquitted. The Bench of this Court, to which the memorandum of appeal was presented, was disposed to think that the sentences which had been imposed by the learned Assistant Sessions Judge were inadequate, and therefore directed that a rule should issue on the appellants, and also on Suraj Pandey, to show cause why they should not be enhanced.

The occurrence, in which the accused are said to have been Concerned, took place on 1st January 1942, in Paharpur, a village some 12 or 13 miles from Arrah. Six months or so earlier, Ram Tapaseya Missir and his brothers Khublal Missir and Ramparbesh Missir took a conveyance of a small parcel of land from one Sitaram Lal. This land is immediately to the south of an ahar. According to the prosecution, Ram Tapaseya Missir and his two brothers were repairing or reconstructing the ar which separates this land from the bed of the ahar. Some time after they had begun their work, at about 9 A.M., the appellants and the other men who were prosecuted along with them came up in a body and called on them to desist and when they declined to do so proceeded to demolish the ar. An altercation ensued, and eventually, when Khublal Missir ordered them to get off his land, the appellant Rambira Missir drove a bhala into his stomach. When Khublal Missir collapsed on the ground the appellant Ramparbesh bent down over him and struck him three times on the top of the head with a garasa. In the meantime, the appellant Harbans Missir had attacked Ramparbesh Missir, striking him a heavy blow on the head with the shaft of a bhala. Ramparbesh also was rendered unconscious and collapsed on the ground.

The other brother, Ram Tapaseya Missir, was struck on the head with a lathi by Suraj Pandey, but although this led to the effusion of blood, no very serious injury was caused. Ram Tapaseya arranged for his two brothers to be carried on a palki to the basti, which was not very far away, and thence another two miles to the railway station at Garhani on the Arrah-Sasaram railway where they caught a train to Arrah. At Arrah Ram Tapaseya took them at once to the sadr hospital, where the assistant surgeon, on discovering that their condition was precarious, communicated with the local police. A Sub-Inspector at once came to the hospital, and at 4-45 P.M., recorded the statement of Khublal Missir, who was then conscious. At his instance a Sub-Deputy Magistrate was sent for, and he examined Khublal Missir at 5-15 P.M. In the meantime, apparently, Ramparbesh had temporarily recovered consciousness, and the Sub-Deputy Magistrate recorded his statement also. Next day, Ram Tapaseya made a complaint in the Court of the Sub-divisional Magistrate. Another complaint was also then made by appellant Rambira, Both the complaints were investigated by the police. Khublal Missir succumbed to his wounds on 13th January 1942. Ramparbesh, who had apparently never recovered consciousness for more than a very brief period, survived him for Borne 48 hours. Death, in the opinion of the assistant surgeon who conducted the post mortems, was, in the case of Ramparbesh, due to an extensive fracture of the skull, and in the case of Khublal Missir to peritonitis.

The defence did not enter into evidence, and the complaint which was made by Rambira Missir on 2nd January 1942 is, therefore, not before us. In the written statement which was put in on behalf of this man and Harbans Missir it was said that Ram Tapaseya and his brothers had not been engaged merely in repairing the ar of their land, but in filling up a portion of the ahar so as to amalgamate it with their land. Rambira, it was said, had discovered them at this, and had remonstrated with them, whereupon one of them had struck him with a bhala and another with a lathi. Harbans Missir had seen this as he was in the vicinity of the ahar at the time and had come up and rebuked them, whereupon they had struck him also with lathis. This, it was said, caused a good deal of excitement and resentment in the village, and a number of men went to the edge of the ahar where Earn Tapaseya and his brothers were at work. A quarrel had taken place there and eventually, there had been some kind of a fight in which Khublal Missir and his two brothers had sustained their injuries.

In the written statement which was put in on behalf of Ramparbesh Missir and the other accused persons, it was merely said that they had taken no part in the occurrence. The defence wore extremely ill-advised not to call the assistant surgeon or other medical practitioner who examined Rambira Missir and Harbans Missir. It was of some importance to know what exactly was the nature of the injuries found on them, and we, therefore, permitted Mr. Harinandan Singh, who appeared for the appellants, to refer to copies of the injury reports. These show that Rambira Missir had an incised wound on one of his little toes. It is very unlikely that such a wound was caused by some one who attacked him with a bhala. The probabilities, to my mind, rather are that Rambira Missir may, accidentally have brought the point of the bhala, with which he himself was armed, into contact with his toe. Rambira had, however, two other bruises, and it is quite clear that he must have been attacked or struck by some one with a lathi. Harbans Missir had three bruises, one on each of his shoulders, and a third and a more extensive one on his face and chin. He also complained of pain in the left thigh. There can, thus, be no doubt but that he too was assaulted and struck a number of blows with a lathi. The prosecution put into the witness-box, in addition to Ram Tapaseya, four men who claimed to have seen the various assaults committed from more or less close quarters, and two other men who claimed to have heard the disturbance, and on going to investigate it, to have seen and recognised the appellants and most of their companions as they were running away. They also claimed to have Khublal Missir and Ramparbesh Missir say who it was who had assaulted them. These men were all Brahmins and related, more or less closely to Ram Tapaseya and his brothers. The learned Assistant Sessions Judge was not impressed with the manner in which they gave their evidence and placed no reliance on it. Except, perhaps, in the case of one man, namely, Nathuni Missir, it is very difficult to say that the estimate made by the learned Assistant Sessions Judge of the worth of their evidence was inaccurate or unjustified. Nathuni Missir was, however, one of those who remained in Paharpur and did not go with Ram Tapaseya and his brothers to Arrah.

Now, it appears that Jadu Ahir, the chaukidar of Paharpur, went to the police station at Sandesh and lodged an information at 4-45 P.M. The Sub-Inspector proceeded to Paharpur and interrogated Nathuni Missir early next morning. It is, on the whole, unlikely that Ram Tapaseya Missir could, after he left the village, have had any communication with Nathuni Missir, and the fact that Nathuni Missir would seem, at once, to have told the Sub-Inspector, more or less precisely the same story as Ram Tapaseya had set out in the petition of complaint, would seem to entitle his evidence to some little weight at least. It is, however, clear that, from the outset, Ram Tapaseya Missir and Nathuni Missir and every one else who gave evidence for the prosecution determined to suppress to some extent or distort the facts. For instance, it is quite impossible to suppose that Ram Tapaseya and his two brothers were merely engaged'' in repairing the ar of their land.

It is true that the inspector found indications that a small portion of an ar had been broken down, and that, perhaps, indicates that the immediate cause of the trouble was the conduct of the appellants and their companions attempting to demolish this ar. But the inspector also found that the sloping bed of the ahar had been encroached on to an extent of a few yards. It appeared to the inspector that earth had been taken from another portion of the land, which had been ploughed up, and thrown on to the sloping bed of the ahar in order to raise the level and amalgamate a portion of it with the land of Ram Tapaseya. In other words, it was the conduct of Ram Tapaseya and his two brothers in encroaching on the bed of the ahar, and not the conduct of Rambira and his companions in demolishing the ar which was being constructed to mark the new boundary that was the real cause of the occurrence.

Apart, however, from this suppression of the truth which was, of course, very material and particularly so in regard to the charge of rioting, the story told by the prosecution would appear to have been substantially correct. No evidence was adduced to show that Rambira Missir and Harbans Missir were assaulted merely because they had remonstrated with Ram Tapaseya and his brothers, and that the occurrence did not take place until both these men had retired. It is, in my view, quite impossible to suppose for a moment that there was any truth in this story. The incised wound on the little toe of Rambira, would, as I have already said, seem to have been caused accidentally and not deliberately, by someone who attacked him with a bhala. The indications, to my mind, quite obviously are that these two man either came by their injuries in a fight with Khublal Missir and his two brothers or were later assaulted by some relations or supporters of the brothers who resented the cruel manner in which they had attacked them. Mr. Harinandan Singh for the appellants has drawn our attention to certain admissions made by some of the witnesses for the prosecution that a number of men, other than the appellants, came to the land armed with lathis and bhalas.

This, he suggested, went to show that in consequence of the altercation which began between Ram Tapaseya and his brothers on the one hand and Rambira and Harbans, on the other, a large number of men collected, and eventually there was a kind of free fight between them. There is, in my view, no force whatever, in this argument. For one thing, the admission was in each case that these men came to the scene of occurrence after Khublal Missir and his brother had been assaulted and in consequence of the assaults which had been committed on them; for another, there is nothing to show that any relation or supporter of the three brothers was also assaulted, and that indicates, to my mind, that the brothers were the victims of an attack by a number of angry men who resented their conduct in encroaching on the ahar and were not themselves the leaders of a body of men which challenged another body of men to a fight. This point is not, however, of any real importance now as on the charge of rioting the appellants and the other persons tried along with them were acquitted. The questions that now arise are whether it was, in fact, Rambira who drove a bhala into, Khublal''s stomach and whether it was Ram-parbesh who struck him on the head with a garasa, whether it was Harbans who struck Ramparbesh on the head with the shaft of a spear or a lathi, whether it was Pandey who struck Ram Tapaseya on the head with a lathi. If the evidence of the six persons put into the witness-box by the prosecution to say that they had either seen the assaults committed or had come on the scene immediately after they were committed and heard from Khublal and Ramparbesh who it was that had assaulted them be rejected, as it has been rejected by the lower Court, and I think rightly, except perhaps in the case of the evidence of one man, Nathuni Missir, the prosecution has to rely on the evidence of Ram Tapaseya and on the dying declarations of Khublal and Ramparbesh. Mr. Harinandan Singh for the appellants attacked the dying declarations on more than one ground.

In the first place, he pointed out that the Sub-Deputy Magistrate who recorded them admitted that he had put some questions to the deponents, and yet had not recorded these questions or the answers which had been given to them. This, Mr. Harinadan Singh contended, detracted from the evidentiary value of the declarations, and for this he relied on Emperor Vs. Premananda Dutt, . The observations made there by Mukerji J. were based on a decision in an English case, Reg. v. Mitchell (1892) 17 Cox C.C. 503. That, however, was a case in which a dying woman was examined by a Magistrate under 30 and 31 Vict. C. 35, Section 6 and in which her examination had to be stopped before it could be concluded owing to her condition. The clerk of the Magistrate who made a record of what she said recorded it in a narrative form. It was not, strictly speaking, a dying declaration at all, and indeed, that was one of the grounds on which the Court declined to receive it in evidence. It is, of course, desirable that a Magistrate recording a dying declaration, who has occasion to put any question to the deponent, should record that question and also the answer which he receives to it. The danger of omitting to take this precaution is that some leading question may be put to the deponent, and unless the Court, which is eventually to decide to act or not to act on the dying declaration, has the question before it, it may not be in a position to judge how far the answer given was a spontaneous one or not. It is particularly necessary that the Magistrate should record any questions which he puts when he is himself acquainted with the facts of the case and is endeavouring to extract information from the deponent. That, how-ever, was clearly not so in this particular case, as the Sub-Deputy Magistrate, apparently, knew nothing of what had taken place in Paharpur, and if he put any questions to either Khublal or Ramparbesh, it is not at all likely that they can have been leading questions. In fact, so far as Ramparbesh is concerned, he cannot have put any question to him at all as all that Ramparbesh said was: "Harbans Missir struck me with a stick. Nobody else struck me."

The other ground on which the learned advocate for the appellants has attacked the dying declarations is that at the time they were made, both Khublal and Ramparbesh were under the influence of Ram Tapaseya and their other relations who accompanied them to Arrah. What happened, Mr. Harinandan Singh suggested, was that Ram Tapaseya decided to invent a story of the a occurrence which, in certain particulars, was not true, and before the Sub-Inspector or the Sub-Deputy Magistrate arrived at the hospital, contrived to make each of his brothers aware of what he was himself to say and get them to say something that would support it.

In this connection, Mr. Harinandan Singh pointed out that while in the statement which he made on 1st January 1942, Ramparbesh said that he was struck with a stick, in the statement which he made nine days later he said that he was "struck with a goji--with the shaft of a spear." That, it is said, rightly enough I think, shows that between 1st January 1942 and 10th January 1942, Ram Tapaseya or some one else had succeeded in impressing on Ramparbesh that he must alter the story which he had told originally. It, by no means follows, however that Ram Tapaseya had been able to coach or tutor Khublal and Ramparbesh before they made the statements which they did on 1st January 1942. Ramparbesh was in a very serious condition. Indeed, he was unable to say anything to the Sub-Inspector, and apparently the statement which he made to the Sub-Deputy Magistrate was made in a very short interval of consciousness. As for Khublal, it is clear that he was in very considerable pain. He had been carried on a palki to the railway station at Garhani, and thence e had come by rail to Arrah.

There is nothing to indicate, and no reason at all to suppose, that Ram Tapaseya went and consulted some lawyer before he took his brothers to the hospital. It may, of course, be that Ram Tapaseya impressed on Khublal, or that Khublal himself may have realised that he had better say nothing about their having filled up a portion of the bed of the ahar and had much better pretend that the trouble arose solely over the conduct of the appellants in demolishing the ar. That, no doubt, appears from the statements made by Khublal Missir to the Sub-Inspector and the Sub-Deputy Magistrate. But it is very difficult indeed to suppose that Khublal was not assaulted by Rambira, but by some one else, and that on the way from Paharpur to Arrah Ram Tapaseya, for some reason or other, induced him to suppress the name of his real assailant and fasten the responsibility for his wound on Rambira. Khublal, and still less Ramparbesh, was not in a condition in which persuasion or pressure of this kind could possibly have been exercised over him successfully. Moreover, I find it quite impossible to believe that Ram Tapaseya would in any case have done 5 this. No reasonable motive for his behaving in such a way has been suggested. Mr. Harinandan Singh said that if the story of how. Rambira and Harbans remonstrated with Ram Tapaseya and his brothers for encroaching on the bed of the ahar and were assaulted and how Khublal and Ramparbesh were not assaulted until later by some of their relations or servants by way of retaliation were believed, that might explain why the real assailants were permitted to go scot-free, and Rambira and Harbans were implicated instead.

There is, however, as I have already said, no evidence at all that Rambira and Harbans were in fact assaulted in any such way. Khublal and Ramparbesh must both have seen and recognised, beyond any possibility of doubt, their real assailants, and it would have been highly unnatural conduct on their part to have suppressed their identity and implicated innocent persons instead. In my view, the learned Assistant Sessions Judge was correct in attaching the weight which he did to the dying declarations. They are of the greatest importance as going to corroborate Ram Tapaseya and Nathuni Missir and make it quite clear that these men were telling the truth when they said that it was Rambira who drove a bhala into Khublal''s stomach, and Ramparbesh who struck him on the head with a garasa, and that it was Harbans Missir who struck Ramparbesh on the head with a lathi.

The learned Assistant Sessions Judge appears to have taken the view that in raising the level of a portion of the bed of the ahar and amalgamating it with their own land Ram Tapaseya and his brothers were committing mischief, and that, in attacking them, Rambira and Harbans were acting in exercise of the right of private defence of property which, however, they exceeded. It is, no doubt, true that the conduct of Ram Tapaseya and his brother, in encroaching on the bed of the ahar, was a wrongful act, but it seems very doubtful, indeed, if it can be said to have amounted to a mischief. Moreover, it is perfectly clear that the assaults which were committed on Khublal and Ramparbesh were not committed when they were still engaged in encroaching on the ahar and were committed in order to stop them doing so. They were committed on the land some yards away at least from the edge of the ahar not in order to stop any further encroachment being made but in order to punish the victims for the encroachment that had already taken place.

It is, I think, quite impossible to say that the appellants and their companions were acting in good faith in the exercise of the right of private defence of property. Prima facie, a man who drives a spear into the stomach of another, and causes that man''s death, commits murder, and the learned Sessions Judge ought, in my opinion, to have acceded to the request which was apparently made to him by the Public Prosecutor that the charge should be altered to one u/s 302, Penal Code. I have some doubt myself as to whether the act of Rambira did not amount to murder. Certainly he ought to have been charged with murder, and the onus ought to have been thrown on him, as indeed Section 105, Evidence Act, requires, to show that there were extenuating circumstances which reduced the offence to culpable homicide not amounting to murder. All that can really be said in his favour is that the prosecution have not told the whole truth as to how he and Harbans came by their injuries, and one cannot, perhaps, wholly exclude the possibility that Ram Tapaseya and his brothers began to trouble and were the first to have recourse to violence. I do not myself think that that is at all likely to have happened. The probabilities, quite obviously, are that Rambira and Harbans and some of their companions decided to assault and punish Ram Tapaseya and his brothers, and that if the injuries on Rambira and Harbans were really caused by any of them they were caused in exercise of the right of private defence. When however there is an element of doubt as to what actually happened, and for the existence of that doubt the prosecution is responsible, it would, I think, be wrong to hold that the offences committed by Rambira and Harbans were more serious than the offences of which they have been convicted.

It remains to consider the question of sentence. The sentences which have been imposed on Harbans Missir and on Suraj Pandey are not, in my view, inadequate. The learned advocate, who appeared on behalf of Suraj Pandey, urged that Suraj Pandey has not been satisfactorily proved to have taken part in the occurrence at all. It is true that he would seem, at one time, to have been at-loggerheads with a relation of Bira Missir That being so, one would not, perhaps expect him to have joined with Bira and the others who were his relations in an occurrence of this kind, more particularly, if, as was admitted, he also did not use the water of this ahar to irrigate any of his lands. On the other hand, there is nothing at all to show why Ram Tapaseya should have incriminated him falsely.

All that was suggested was that he was a tenant of Suraj Pandey and the latter had sued Ram Tapaseya for rent. But Ram Tapaseya himself was not asked anything about this. Even if Ram Tapaseya does hold some land under him, and if he has had to sue him for rent, that would scarcely explain why Ram Tapaseya should have let his real assailant go scot-free and implicate this man instead. Khublal mentioned him in his dying declaration which shows fairly clearly that he did take some part in the occurrence. Ram Tapaseya''s story, that it was he who struck him with a lathi, was also corroborated by Nathuni Missir, to whose evidence, as I have already said, I would attach some weight. The learned Assistant Sessions Judge was thus, in my opinion, correct in convicting him. The sentences on the other two appellants, namely, Rambira Missir and Ramparbesh Missir, are inadequate, and ought, in my opinion, to be enhanced. I was at first disposed to think that the sentence to be imposed on Rambira ought to be one of rigorous imprisonment for ten years.

But on further consideration. I am of opinion that a sentence of rigorous imprisonment for seven years will suffice. Rambira is not now a very young man, and it is also to be remembered that the conduct of Ram Tapaseya and his brothers in encroaching on the ahar was extremely provocative. It may be that their action did not result in any immediate diminution in the quantity of water available for irrigation in the village, but there may have been an and as or a kind of moat at or near this point in the bed of the ahar, and by encroaching on the ahar Ram Tapaseya and his brothers may have put the cultivators, who were in the habit of using this andas, to a great deal of trouble. The assault committed by Ramparbesh Missir on Khublal was a most brutal and cowardly ono, and there is no reason to distrust the evidence that after Khublal had been struck by Rambira with a bhala and had collapsed on the ground this man bent down over him and deliberately inflicted three cuts on the top of his head with a garasa. One of the wounds so caused was in the opinion of the assistant surgeon who examined him, a severe one. There is no real excuse for brutality of this kind, and I would alter the sentence which has been imposed on this man to one of rigorous imprisonment for two years.

Mr. Harinandan Singh for the appellants complained that the chaukidar Jadu Ahir was not put into the witness-box by the prosecution. It was, he said, the duty of the prosecution to put this man into the witness-box and also to bring on to the record the first information which he lodged at the police station at Sandesh at 4-45 P.M. on 1st January 1942. It would, I think, have been better if the Public Prosecutor had, immediately before closing his case, put this man into the witness-box and given the defence an opportunity of cross-examining him. The Public Prosecutor had, however, intimated to the Court that he did not propose to call the chaukidar at an early stage of the trial. Moreover, on 18th August 1942, the trial was adjourned to 17th November 1942. On 13th August 1942, the defence were aware that the prosecution was not to call the chaukidar and that the learned Assistant Sessions Judge was not prepared to examine him as a Court witness. The learned Assistant Sessions Judge was, I think, quite correct in declining to accede to the request which was made to him and in intimating to the defence that, if they wished to examine this chaukidar, they should take steps to summon him. The defence had, in the circum. stances of the case, ample time to secure his attendance in Court, and, if they did not avail themselves of it, they cannot now have a grievance. In any event, it is very difficult to see how any evidence given by the chaukidar could have materially affected the result of the trial. There is no suggestion that he was an eye witness to the occurrence. All that is suggested is that he came to the scene of occurrence and made some inquiries from Ram Tapaseya and others and then went to the police station and reported what he remembered of what they had said to him. In so far as the identity of the persons who committed these assaults is concerned, and that is the real point for decision in the case, his evidence can have been of little or no value at all.

In the result, then, I would dismiss this appeal, confirm the convictions, maintain the sentence on Harbans Missir and enhance the sentences imposed on Rambira Missir and Ramparbesh Missir in the manner already indicated. I would confirm the conviction and sentence of Suraj Pandey and discharge the rule which has been issued on him. Ramparbesh must now surrender to his bail.

Meredith, J.

I agree.