Sri Krishna Sinha and others vs Emperor

Jwala Prasad, J.—The petitioners, seven in number, have been convicted of rioting under S. 147; petitioners Surju Narain and Mukh Lal have further been convicted of assault under S. 323, Penal Code. Petitioner Mohit Missir has been convicted also of the offence under S. 325, Penal Code; Surju Narain and Mukhlal have each been sentenced to three months'' rigorous imprisonment under S. 147; no separate sentence has been passed upon them under S. 323. Mohit Missir has been sentenced to four months'' rigorous imprisonment and to pay a fine of Rs. 100 under S. 325; no separate sentence has been passed under S. 147. Srikrishna Sinha, Kedar Nath an Deo Kant have been sentenced to a fine of Rs. 500 each under S. 147. Sahdeo Singh has been convicted under S. 147, Penal Code, and has been directed to execute a bond of Rs. 200 under S. 562, Criminal P.C.

The riot is said to have taken place on account of ill-feelings and keen competition existing between the Swarajists and non-Swarajists. During the last election for District Board membership Suresh Chandra Misir and Kedar Nath, B.A. were candidates representing the Swarajist party of which petitioner No. 1, Sri Krishna Sinha, is a prominent member. Rai Bahadur Lachmi Prasad Sinha and Babu Piarey Lal Misir were candidates representing the Moderate or non-Swarajist party. The polling was fixed for 23rd May 1927. There was some apprehension of a breach of the peace between the parties on the previous night, but it was not seriously taken notice of by the authorities with the result that no preventive measure was adopted by them. The election was to take place between 8 a.m. to 2 p.m. on the 23rd May 1927, in the school premises near Gogri Thana. The Polling Officer was Mr. Sou, Deputy Magistrate. Petitioner, Sri Krishna, was with the Polling Officer watching the interest of the candidates representing his party. Some noise of a row at some distance from the compound was heard and those present on the polling ground raised a cry that the Swarajists had collected a number of lathis and were causing disturbance and assaulting the voters of the non-Swarajists in order to prevent them from voting.

It is undisputed that a row took place and some persons on the side of the non-Swarajists were assaulted. There were also injuries received by some of the men of the Swarajist party. They were treated in the Gogri hospital as stated by the Magistrate, and one of them is the brother of accused Surju Narain, Brickbats were also thrown. Showki Lal Pande had a fracture of his arm and certain other injuries of slight nature. The fracture is said to have been caused by the petitioner Mohit and the simple injuries by the petitioner Surju Narain. Mathura Nath Misir had an abrasion and a bruise of slight nature said to have been caused by petitioner Mukh Lal.

The Courts below have, upon a consideration of the evidence in the case held that the occurrence as alleged by the prosecution did take place and that the aforesaid persons on the aide of the prosecution received injuries in that occurrence. There is not much dispute as to the presence and complicity of petitioners Surju Narain, Sahdeo, Mohit, Kedar Nath, Deo Kant and Mukhlal. The only question raised by Mr. Fazl Ali on their behalf is as regards the severity of the sentence.

Kedar Nath Singh and Deo Kant Jha have not accused any injury to any one on the side of the prosecution. Kedar Nath is also a law student. I reduce the sentence passed upon them to a fine of Rs. 100 each.

The sentence passed on the other accused persons also seems to be somewhat severe, and in the circumstances of the case I would reduce the sentence passed upon Surju Narain and Mukhlal to a month and a half and on Mohit to two months rigorous imprisonment. The sentence of fine passed upon Mohit will stand.

As regards the case of Sri Krishna Sinha, Mr. Sinha contends that the prosecution has failed to establish the charge against him. His name did not appear in the telegram that was sent by Rai Bahadur Lachmi Prasad Sinha, long and detailed though it was, soon after the occurrence. The Rai Bahadur does not name him as having taken part in the riot. The Sub-Inspector (P.W. 24) who hurried to the scene of occurrence when it was going on and when he started from the thana saw Sri Krishna Sinha on the verandah of the polling station about to sit on a chair and he did not see him coming from anywhere. (His Lordship referred to the evidence and continued.) Thus the evidence of an important witness on behalf of the prosecution such as Mathura Nath (P.W. 12) who was examined on the very day of the occurrence and of the dafadar is in favour of Sri Babu. Of the other witnesses Arjun Missir (P.W. 29) and Chhotey Lal (P.W. 1) were examined five days after the date of the occurrence. Their evidence, therefore, is not of great value. Although the telegram which was despatched immediately after the occurrence by Rai Bahadur Lachmi Prasad Sinha, the representative candidate for election on behalf of the non-Swarajists, purports to give a full account of the occurrence covering, as noticed by the learned Sessions Judge, seven pages, yet it does not mention accused Sri Krishna as being in the mob or as having taken any part in the occurrence. He could not have missed the name of Sri Krishna for he was the leader of the Swarajists party and was opposing his erection. The Rai Bahadur mentions two prominent persons Mahabir Prasad Singh (P.W. 9) and Kamal-ud-din (P.W. 14), in his telegram. Kamal-ud-din does not name Sri Krishna as being in the mob as having taken any part in the occurrence. Mahabir Prasad Singh makes a positive statement that Sri Babu was not in the mob. He gays that he knew Sri Babu and that he was not in the mob. Similar is the statement of Baleshwar (P.W. 11), one of the injured men. Upon the statement of Mahabir and Baleshwar, petitioner Sri Krishna is entitled to an acquittal. Most of the facts mentioned above were not duly appreciated by the Courts below or else they would not have come to a different finding.

The Magistrate refused to grant copies to the accused of the statements made by the witnesses before the police. The application for copies was made after some of the witnesses on behalf of the prosecution were examined and before they were cross-examined. That was the opportune moment for making an application of that kind. The Magistrate relying upon the authority of Madari Sikdar and Others Vs. Emperor, and Sasdat Mian and Others Vs. King-Emperor, held that the accused should have "laid the foundation" in cross-examination for showing that the witnesses had made different statements before the police from those made in Court before they could be entitled to obtain copies of those statements. The Magistrate refused to act upon the contrary view taken by Sen, J., in the case of Chedi Prasad Singh and Others Vs. Emperor, upon the ground that that was a judgment of a single Judge, and that the decision in Sasdat Mian and Others Vs. King-Emperor, was that of a Division Bench presided over by two Judges. The learned Magistrate did not notice that that decision also was on that point of one of the Judges. I was a party to that case and I did not entertain that view and upon a proper occasion dissented from it as will appear from the view expressed in Ramgulam Teli and Others and Parmeswar Munder and Others Vs. Emperor, , decided on 2nd December 1927. Apparently, the Magistrate did not know of this decision. Fortunately in this case the Sub-Inspector of Police was asked about the statements made before him by those witnesses and gave evidence with respect to those statements and with regard to the witnesses referred to on behalf of the Sub-Inspector that they did not name Sri Krishna before him. I do not know how the Magistrate allowed the Sub-Inspector to refer to the statements without at the same time allowing the accused an opportunity of explaining those statements. Having allowed the Sub-Inspector to depose to the statements made before him by the witnesses the Magistrate ought to have allowed the witnesses to be cross-examined about them. Apart from the legal error committed by the Magistrate he missed the point that in. the cross-examination of the Sub-Inspector the accused, to use the words of the Magistrate, laid the foundation for being entitled to cross-examine the prosecution witnesses upon the statements made by them before the police. The Magistrate, therefore, both on law and facts was wrong in not using S. 162, Criminal P.C., for the benefit of the accused for whose sole benefit the section was lately amended. If the Sub-Inspector had not deposed as to the statements made by the witnesses before him the case would probably have been remanded to allow the accused an opportunity to cross-examine the witnesses after obtaining copies of the statements made by them before the police.

The circumstance stated above ought to have been considered by the Courts below, and coupled with the statements made by the witnesses before the police it is obvious that the evidence against the petitioner Sri Krishna is extremely meagre if not nil. He was a prominence member of the Swarajist party and was leading that party on that occasion, watching their case before the Polling Officer and was with him all along. It is not likely that he would throw himself into the rank and file outside the polling camp and mix himself up in the riot had no chance of returning their candidate is not borne out by the stubborn fact that ultimately the Swarajist party succeeded in returning their own nominee. Thus, upon the probabilities also the case against petitioner Sri Krishna Sinha is highly suspicious. The evidence, as was observed above, is too thin to connect him with the offence and I would, therefore, set aside the conviction and the sentence passed upon him. The fine, if already realized, would be refunded to him.

Petitioner Sahdeo Singh was released under S. 562, Criminal P.C., and, therefore, on the question of sentence we are not concerned with him.