Sakaldip Rai and Others vs Emperor

Shearer, J.—This is an appeal by seven men who have been convicted by the Additional Sessions Judge of Muzaffarpur of rioting. The trial was held with the aid of four assessors all of whom were of opinion that the charge had not been substantiated.

In the riot, which occurred on 12th October 1939, one Ramasis Jah was struck a blow with a bhala in the abdomen. Subsequently peritonitis set in and he died three or four days later. The appellant Sakaldip Rai who is said to have struck this blow was also convicted of culpable homicide not amounting to murder. The disturbance occurred over a small parcel of land, 10 kathas in area, which is comprised in khasra No. 3825, and formed part of two holdings in respect of which rent decrees were obtained in 1934. In execution of these rent decrees the holdings were sold and purchased by one Rajendra Missir.

On 17th April 1938 Rajendra Missir took out writs for delivery of possession. The decrees in the rent suits were obtained against one Deonandan Jha who is the son of one Gurusaran Jha. Gurusaran Jha and his two brothers, Nathar Jha and Awadh Jha, were the sons of one Hansman Jha to whom the whole of khasra No. 3825 originally belonged. The sons of Hansman Jha separated many years ago, and, according to the prosecution, khasra No. 3825 which comprises an area of more or less one bigha was then divided among them.

In 1919 Gurusaran Jha executed a sale deed purporting to convey 10 kathas out of khasra No. 3825 to one Tirath Narayan Singh.

In 1929 Tirath Narayan Singh mortgaged this 10 kathas to the appellant Deonarain Rai. Subsequently, in 1934, he sold it to the appellant Trilok Singh. The consideration for this sale deed was to be used in redeeming the prior sudbharna bond. It is said that Trilok Singh made no payment to Deonarain so that Deonarain continued in possession. According to the prosecution, the 27 acres of khasra No. 3825 which Rajendra Missir purchased at the execution sale was part of the 44 acres which Gurusaran had purported to convey to Tirath Narain Singh in 1919. It was asserted that as a result of the service of the writs for delivery of possession Rajendra Missir came into actual occupation of the land and sowed aghani and gadar paddy in it.

On 17th October 1939, the appellants Sakaldip Rai and Deonarain Rai went to the land with a mob and proceeded to plough up a portion of it and also to demolish a ridge. Ramasis Jha who was Rajendra Missir''s zirotia and one Khobhari Chamar who was a labourer of Rajendra Missir, on seeing what was happening, went to the land and protested. On this, it is said, the appellant Sakaldip, who was armed with a bhala, struck Ramasia Jha with it in the abdomen while his son Deonarain Rai, who was also armed with a bhala, struck him in the chest. Khobhari Chamar tried to intervene and was attacked and struck a number of blows by other members of the mob. Ramasis Jha was carried to the village and thence to Muzaffarpur where he was admitted to the hospital. The Assistant "Surgeon who examined him found that his condition was precarious and asked that his dying declaration should be recorded. This was done at 10 P.M. on 18th October 1989, and Ramasis Jha died some 36 hours later.

In the meantime a complaint had been drawn up by a mukhtar and this was presented to the Sub-Divisional Magistrate immediately after Ramasis Jha expired. Three men, two of whom are relations of Sakaldip Rai and Deonarain Rai, came to Muzaffarpur and consulted a private medical practitioner on 18th October 1939. The latter gave them certificates that they had various injuries on their persons. They also consulted a mukhtar who drew up a complaint for them and a few days later, on 24th October 1939, this complaint also was presented to the Sub-Divisional Magistrate. The Sub-Divisional Magistrate sent both the complaints to the Sub-Inspector of Katra Police Station in whose jurisdiction the riot occurred and the latter after investigating the cause of the riot submitted a charge sheet against the appellants.

The contention of the appellants is that ever since 1929 they have been in possession of the land and were peacefully ploughing it when they were attacked by a mob led by Ramasis Jha and Khobhari Chamar. It is contended that they were justified by the right of private defence in resisting this mob and causing the injuries which they did to Ramasis Jha and Khobhari Chamar. The learned Additional Sessions Judge was apparently satisfied that the appellant Deonarain Rai was at one time in occupation of the land. The conclusion to which he came was that as a result of the service of the writs for delivery of possession Deonarain Rai vacated the land and then, for some reason or other, some 18 months later decided to try and recover possession of it by force.

One circumstance which appears to have weighed greatly with the lower Court in coming to this conclusion was the conduct of Tirath Narain Singh, the mortgagor of Deonarain Rai, in a rent suit which was instituted against him in 1938.

In that suit Tirath Narain Singh put in a petition asserting that he had purchased 10 kathas out of khasra No. 3825 in 1919 and that in consequence it was a portion of his holding and ought to have been mentioned in the schedule to the plaint. This application was allowed and the plaint was amended accordingly on 12th September 1939, that is, rather less than a month before this occurrence. The learned Additional Sessions Judge pointed out that in 1934 Tirath Narain Singh had sold the land in dispute to Trilok Singh and he inferred from this that the application made in the rent suit by Tirath Narain Singh was not a bona fide application but was made with some ulterior purpose. This I think, may very well be correct. At the same time, it does not by any means follow that in 1939 Tirath Narain Singh''s mortgagee, Deonarain Rai, had ceased to be in possession of the land. It may very well be that he had continued in possession and induced Tirath Narain Singh to make the application which he did in order, as it were, to perfect his title and enable him to resist any claim which might be made to the land by Rajendra Missir.

The writs for delivery of possession were taken out in the spring of 1938, that is, at a time when there was much agrarian unrest in Bihar. Some years previously the Bihar Tenancy Act had been amended and as a result of the amendment the landlord would, in the ordinary course, have been compelled to recognize the sale by Guru-saran Jha to Tirath Narain Singh. It is I think unlikely that Deonarain Rai, who is a Bhaban would have been wholly unaware of the legal position and, when a peon of the civil Court went to the land in dispute armed with writs for delivery of possession, would at once have vacated it. The writs shew that Rajendra Missir purchased two portions of khasra Nos. 3825, one 09 acres and the other 18 acres in area. Neither of these two parcels of land was described by all its four boundaries so that the peon would ordinarily have had some difficulty in deciding what exactly Rajendra Missir had purchased and what he had to make over to him. That makes it still more unlikely that Deonarain Rai would have vacated the land.

In this connexion, also, it may be observed that in a prior rent suit which was instituted in 1935, Tirath Narain Singh had contended, as he did again, and on this occasion successfully in 1939, that 10 kathas out of khasra No. 3825 was now part of his own holding and had ceased to be part of the holding of Deonandan Jha. That rather suggests, to my mind, that Deonarain Rai had, as early as 1935, foreseen that Rajendra Missir might attempt to dispossess him and had already conceived the idea of getting the landlord to recognize the purchase by his mortgagor in 1929. The Assistant Government Advocate has pointed out that it was not the case of the prosecution that Deonarain Rai was in occupation of the disputed land from 1929 to 1938. Although the lower Court came to that conclusion, the case which the prosecution sought to make out was that the sale deed of 1919 executed by Gurusaran Jha in favour of Tirath Narain Singh was never acted upon.

The Assistant Government Advocate has invited our attention to two mortgage bonds (Exs. 16 and 17) executed respectively by Nather Jha and Awadh Jha. These bonds each relate to 7 kathas out of khasra No. 3825 and it is clear from the recitals in them and from other evidence on the record that khasra No. 3825 was then divided into three portions, Gurusaran Jha being in possession of the northern, Nather Jha of the middle and Awadh Jha of the southern. As khasra No., 3825 comprises an area of rather less than one bigha, the Assistant Government Advocate has contended that Gurusaran Jha was not and could not have been in possession of as much as 10 kathas and that, when Tirath Narain Singh discovered this, he declined to pay the consideration money or to take possession of so much of the plot as actually was in Gurusaran Jha''s occupation. The prosecution however omitted to adduce any direct evidence on the point and it is,

I think, more probable that nothing of this kind happened and that there was merely a mis-description in the areas either in the two mortgage bonds or in the sale deed or in both. If the contention of the Assistant Government Advocate is correct, it has to be assumed that in 1929 and again in 1934 documents were brought into existence with a view to taking possession of the land in dispute and yet no use at all was made of either of them. That is a difficulty which cannot lightly be got over. A still greater difficulty in the way of the prosecution is the statement made by Ramasis Jha on his death bed. Ramasis Jha then admitted quite unequivocally that Deonarain Rai and Sakaldip Rai had at one time been in possession of the disputed land as mortgagees.

As I have already said, one would not expect Deonarain Rai or Sakaldip Rai to have vacated the land merely because a peon of the Civil Court had come there armed with a writ which showed that Rajendar Missir had purchased or might have purchased not the whole but rather less than two-thirds of it. There is a certain amount of circumstantial evidence which to my mind, goes to show quite conclusively that Deonarain Rai did not, in fact, vacate the land. The land in dispute is the northern portion of khasra No. 3825 and immediately to the-west of khasra No. 3825 is khasra No. 3834 which belonged to one Parmeshwar Hajjam and which was purchased by the appellant, Sakaldip Rai, in the early part of 1939. The Sub-Inspector, when he went to the place of occurrence, found paddy standing on the northern portion of the land in dispute. There had been paddy which had recently been harvested in khasra No. 3834 and there was no demarcating ridge between khasra No. 3834 and khasra No. 3825. That certainly suggests that the two parcels of land were in the occupation of one and the same person. The prosecution sought to get over this by asserting that the appellants or some of them or their relations had returned to the land on the day after the occurrence and had then demolished this ridge. The evidence given at the trial on this point was however at variance with what the persons who gave it had said during the investigation. For instance, it appears that Ramsamujh Jha, who is the son of Awadh Jha, and Ramsagar Singh were at the place of occurrence when the Sub-Inspector made his local investigation and that the Sub-Inspector then asked them when and how-the ridge between khasra No. 3834 and khasra No. 3825 had come to be demolished. Ramsamujh Jha told the Sub-Inspector that the ridge had been demolished in the previous Baisakh by Sakaldip Rai. That makes it,

I think, quite certain that immediately after Sakaldip Rai purchased khasra No. 3834 he broke down the ridge between khasra No. 3834 and the northern portion of khasra No. 3825; and amalgamated the two parcels of land. If however that was so, it necessarily follows that when the occurrence took place it was Deonarain Rai and not Rajendra Missir who was in possession of the disputed land. The Sub-Inspector also found the paddy standing on a portion of the disputed land'' cut irregularly at six or seven places. It is clear that this was done by the party who were the aggressors. Now Ramasis Jha said nothing about this in his complaint whereas in the counter-complaint Jagdip Rai did.

I have already said that immediately after the occurrence three men, Jagdip Rai, Baldeo Rai and Surjug Mahto, went to Muzaffarpur and consulted a doctor. Jagdip Rai and Baldeo Rai are relations of Deonarain Rai and Sakaldip Rai and it is clear from the evidence of the doctor that both of them were struck with some sharp-edged weapon. The learned Additional Sessions Judge seems to have been inclined to think that Jagdip Rai and Baldeo Rai had permitted some one to strike them or had struck themselves in order that they might obtain medical certificates which would be of assistance in putting forward a defence on behalf of their relations Deonarain Rai and Sakaldip Rai. It is not however at all clear that when they went and consulted the doctor they had good reason to suppose that Ramasis Jha had been seriously injured and might die.

Apart from this, the doctor who is now an Assistant Surgeon, was of opinion that the injuries had not been self-inflicted or fabricated. Admittedly, the appellants were ploughing the land and as, in my view, they were and had for a long time been in possession of the land they were doing what they had every right to do. They were attacked'' by a number of men one of whom was Ramasis Jha and another was Khbbhari Ghamar. At least three men of the side of'' the appellants were assaulted and one of their assailants was armed with some such weapon as a sword stick.

If, in these circumstances, the appellants or some of them retaliated, they were in my opinion justified by the right of private defence. It is, I think, impossible to say that when Sakaldip Rai struck Ramasis Jha with a bhala as he did, he manifestly exceeded the right of private defence.

That being so, I would allow this appeal and set aside the convictions and sentences. Those of the appellants who are still in custody must be released and set at liberty forthwith and those who are on bail are discharged from their bail.

Agarwala J.

I agree.