Suba Ahir and Others vs Emperor

Dawson-Miller, C.J.—The seven appellants, together with eight others, were tried before the Sessions Judge of Muzaffarpur and Assessors on the following charges:

(1) Rioting armed with deadly weapons u/s 148 of the Indian Penal Code, (2) Murder committed by one or some of them as members of an unlawful assembly in prosecution of the common object of that assembly under Sections 302 and 149, specific charges being made against some of them u/s 302. (3) Voluntarily causing grievous hurt by dangerous weapons as members of such unlawful assembly under Sections 326 and 149, specific charges being made against some of them u/s 326.

Suba Ahir, Appellant No. 1, was further charged with abetment, u/s 109, of offences under Sections 302 and 326. They were convicted of the offence of rioting u/s 147 of the Penal Code as the Sessions Judge mistrusted the evidence of the prosecution witnesses as to the weapons carried and, therefore, did not find them guilty of the graver offence u/s 148. They were also convicted, not tinder Section 302 coupled with Section 149, but of the minor offence of culpable homicide not amounting to murder u/s 304 coupled with Section 149. The learned Sessions Judge considered Section 304 the appropriate section as he did not think that there was any intention beforehand to commit murder and the killing was not premeditated. They were also convicted of an offence u/s 326 coupled with Section 149. They were all sentenced to 6 years rigorous imprisonment u/s 304 coupled with Section 149, and to 2 years rigorous imprisonment u/s 147, the sentences to run concurrently. No separate sentences were passed u/s 326 coupled with Section 149.

The circumstances under which the occurrence took place, as revealed in the evidence, disclose a state of affairs which is, unfortunately, only too common amongst the cultivating classes of this Province. It is the story of two opposing factions claiming a right to the same plot of land and endeavouring to enforce their rights by violence instead of by amicable settlement, or by recourse to the civil Courts, with the result that a serious affray takes place resulting in death or disablement of some of the rioters, each party alleging that the other was the aggressor and that they acted only in self defence.

Singheswar and Rijan Gope are two brothers belonging to the cultivating classes living at Mauza Madaripur in the Muzaffarpur district in this Province, In that village they Meld certain plots of land including a field of 10 cottahs in area on which sugarcane and certain other crops were grown. This plot lies close to their dwelling house in a northeasterly direction from it. To the eastward of this, about 60 yards distant and separated from it by another field, lies a plot of 17 cottahs on which sugarcane was also grown. The 17 cottah plot is in the possession of Suba Ahir and his relations, some of the appellants, who appear to be cultivators on a more extensive scale than Singheswar and his brother. The 10 cottah plot is a part of survey plot No. 773 and the 17 cottah plot forms a greater part of survey plot No. 774. The intermediate plot between these two, also. Measuring about 17 cottahs, includes survey plot 1052 and a portion of plot 774 not included in the other 17 cottah plot. This intervening plot has been referred to as No. 773/1052. It appears that some years ago the intervening plot No. 774/1052 was held by the family of Singheswar and Rijhan, and about 20 or 25 years ago it was transferred by their uncles Fakira and Badri, two of four brothers, to Kodai, the father of Suba Ahir, the first appellant, in discharge of a debt. At that time the adjoining plot No. 744 was in possession of two men named Lalji and Parman.

Some time later, about 14 or 15 years ago, Kodai made over his plot No. 774/1052 to Lalji and Parman in exchange for their plot No. 774 which adjoined it to the eastward. There were no documents produced in support of these dealings with the plots in question, and Singheswar and Rijhan were undoubtedly endeavouring to establish a title to plot No. 774 now in possession of Suba Ahir and were claiming that plot as theirs apparently on the ground that it represents by exchange the other 17 cottah plot which formerly belonged to their family. They purported to convey 10 cottahs out of plot No. 774 to two persons named Nathuni Baut and Subnarain. Nathuni is at enmity with Suba Ahir and his family, and has enlisted on his side, according to the defence story, one Jaldhari Raut who is said to keep a band of lathials by agreeing to convey to him a portion of plot No. 774 in return for his assistance in dispossessing the appellants from that plot. The appellants, on the other hand, are said to have engaged on their side one Deoki Ahir, a man of powerful physique, and a number of followers. We have thus a state of affairs which promised sooner or later o develop into a serious encounter. It should be stated here that the learned Sessions Judge arrived at a definite conclusion that plot No. 774 about which the trouble arose, was in possession of Suba Ahir who had grown sugarcane upon it under a contract with Mr. Osborn, the Assistant Manager of the Sahajpur Factory, and that the defence story upon this part of the case is accurate.

Indeed several of the prosecution witnesses admitted as much, and I have no doubt, upon the evidence, that the Judge''s finding that the appellants were lawfully in possession of this plot is correct. This point has an important bearing upon the question of the appellant''s guilt; for it was the case of the prosecution that the appellants were unlawfully cutting the sugarcane upon Plot No. 774 when Singheswar and Rijhan interfered and hence the quarrel began which ended in the death of Singheswar and serious hurt to Rijhan. If, however, the appellants were lawfully there, as found, the foundation of much of the prosecution case disappears, and the guilt of the appellants must depend upon whether they have been proved to have taken part in the events which followed.

I may now set out in more detail the case presented by the prosecution. I do not propose to deal with the evidence of the title and possession over Plot No. 774, although the evidence on this part of the case was considerable; for the prosecution witnesses were discredited on this point by the Sessions Judge, and I think rightly. The first information report was lodged at the Minapur police station, some 10 miles distant from Madaripur, the scene of the occurrence, at 4 p. m. on the 21st December, the affray having taken place at 10 a. m. on that day. The informant was Ragunandan Raut, a nephew of Singheswar and Rijhan, with whom he lived. He saw nothing of the occurrence, having gone to inform the local President at Rampurhari, a neighbouring village, that a mob was collecting and that there was likely to be a fight. On his return home he found his uncle Singheswar lying dead close to the 10 cottah field, Plot No. 773, which belonged to his family, and Rijhan wounded and unconscious a short distance away, near the door of his house.

He records the information that had been given to him and adds nothing to the evidence given by eyewitnesses. His information was probably obtained from Nathuni who accompanied him to the thana. The story given by eyewitnesses, including Rijhan Gope who had recovered from his wounds is to the effect that on the 21st December last a mob of 200 or 250 men, including the appellants, arrived and began to cut the sugarcane in the 17 cottah Plot No. 774.

Singheswar who, with his brother Rijhan, had been out in the fields cutting grass found, on their return home, that morning, the appellants'' party cutting the sugarcane in that plot. They deposited their grass at their house and Singheswar then went out and proceeded to the eastward towards Plot No. 774 and asked Suba Ahir why he was cutting the sugarcane there. Suba said he would cut not only the 17 cottah plot but also the sugarcane in the 10 cottah plot belonging to Singheswar. The reason for this was, according to Rijhan, that Singheswar''s party had cut some paddy in the 17 cottah plot some days earlier and appellants apparently intended to take reprisals. "What Singheswar and Rijhan then did is not very clear from the prosecution evidence, but Rijhan states that most of the mob then went to the 10 cottah plot and began to cut and loot the sugarcane. Singheswar and Rijhan then went to oppose them and, at the instigation of Suba Ahir, they were attacked by some of the mob, and Singheswar, as he turned round, was killed by a blow from a garassa on the back of his neck, or upper part of his spine, which killed him and he fell just at the southern ridge of the 10 cottah field.

Rijhan also received several blows from spears and garasssas on the breast and arms, one blow being serious piercing his lung.

He retreated a little and fell near his door. According to Rijhan it was Darbari Ahir; the Appellant No. 2, who struck the fatal blow upon Singheswar, whilst Bhujawan, Jamadar, Jaganmohan and Basmat, the son of Suba, also struck him with spears and garassas. Rijhan himself was struck by Jitu, Banki, Basmat of Mallahi toli and Zahir Mian. Of those named by Rijhan, Bhujawan, Banki, Basmat of Mallahi toli and Zahir Mian are not appellants as they were acquitted. It is also the prosecution case that at the time this affray was going on a number of the men had remained in the appellants'' 17 cottah field cutting the sugarcane there. There can be little or no doubt that it was not in the 17 cottah field but in, or close to, the 10 cottah field that Singheswar was struck down and Rijhan wounded. These two fields are said to be about 64 paces apart.

The case put forward by the defence witnesses is that Singheswar and Rijhan, together with Nathuni and Jaldhari Raut, were at the 17 cottah field with a number of labourers. They were armed with lathis, and Rijhan had a garassa, and the labourers were cutting the sugarcane. In these circumstances Suba Ahir arrived upon the scene with 100 or 125 men and asked why the others were cutting his cane. Thereupon Rijhan struck Deoki, one of Suba''s party, on the arm with a garassa and the quarrel began. At that time the 10 cottah plot of Singheswar was not cut and, according to the defence, it was not cut by the appellants'' party then, or afterwards. The suggestion is that it was cut afterwards by the complainants before the police arrived in order to create evidence against the accused. The witness who deposes to this story confines his statement to the beginning of the quarrel. He says he ran away in fear when the marpit began and saw nothing more that occurred. The same story is set up by the seven appellants in their written statements, but they do not give any details as to how Singheswar and Rijhan received their injuries. They say that when they offered opposition td Nathuni and Jaldhari and their men who had invaded the appellants'' Plot No. 774 a marpit took place in the course of which Deoki and Gullam Kandu, two of their own side, received injuries.

It may be here noticed that many of the prosecution witnesses make admissions which in some respects corroborate the appellants'' case. These admissions are principally that there was a mob of 50 or 60 persons on the side of the complainants and that Jaldhari was amongst them, that Rijhan gave Deoki a blow with a garassa on the arm and that Deoki was seen after the fight with his arm bandaged and bleeding. At the trial it appeared that Deoki had in fact marks of a wound upon his arm. It is also shown by the chaukidar of the village that Jaldhari Raut wanted to cut the sugarcane in the appellants'' Plot No. 774, and that Suba Ahir collected men to oppose it. In fact, the chaukidar made a report at the police Station on the morning of the occurrence and before it took place to that effect and asked for action to be taken to prevent a riot.

Unfortunately for the prosecution, and still more unfortunately in the interests of justice, the prosecution evidence was so tainted with falsehood that the learned Sessions Judge found himself unable to accept it on the most material parts of the case. He refused to accept their evidence as to which person, or persons, struck the blows on Singheswar and Rijhan or as to the weapons they used and he adds:

Not only do I mistrust, the evidence as to the part taken by each of the accused but I am unable to attach weight to the statements of most of the prosecution witnesses as to which of the accused were present.

Most of the eyewitnesses were in some way connected with Nathuni, whom the Judge thoroughly mistrusted and who, giving evidence at the trial as an eyewitness, stated that he himself took no part in the quarrel. Others of the eye-witnesses were relations of the deceased and, although this is no reason for disbelieving their evidence, it is a reason for scrutinizing it with care.

The learned Judge could place no reliance either, upon the first information report made by Raghunandan. He considered that the only impartial witnesses who were worthy of credit were three who did not see the occurrence but who saw the mob collecting, or on its way to the field. They mentioned the names of Jitu, Deoki and Banki Raut as persons whom they recognized and they gave the numbers of the mob variously one of them stating that there were 10 to 15 men and another that there were to 80 to 35 men. I am not prepared, after reading the evidence, to disagree with the learned Judge''s appreciation of it and I am inclined to think that we have not got the whole truth, or any-think like it, from the prosecution witnesses. I think the dispute arose on the 17 cottah field belonging to Suba Ahir in consequence of opposition offered by the complainants'' party. There was nothing unlawful on the part of the appellants in congregating there to cut their sugarcane and resist opposition, if necessary, provided, they did not exceed the limits of the right of private defence of their property or persons. I have also little doubt that some one or more exceeded that right but unless the individuals can be identified, which is unfortunately not the case, the mere presence of the accused at or near the spot is not sufficient to bring home to them guilt for the acts of others who exceeded their rights.

The learned Sessions Judge, who was no doubt influenced by the fact that some one ought to be brought to justice for what was an unjustifiable act of violence in this case, although he could not accept the evidence as to which of the appellants was present at or near the 10 cottah field when the offence was committed, considered that ho would be justified in relying upon the written statements of the present appellants who were only some of the accused, and who admitted their presence upon the occasion in question. This he considered as practically an admission that they took part. The written statements, however, make no admission beyond this, namely, that they were present at their own field and resisted opposition, and that in so doing some of their party were injured. There is no admission that they went afterwards to the 10 cottah field of the complainants or that they conceived any intention of cutting the cane in that field, still less that they cut it.

In the absence of trustworthy evidence as to the individuals who actually committed the assault on Singheswar and Rijhan, or were taking part in it, none of the appellants can be held guilty of that offence, for unless it was committed by members of an unlawful assembly to which they themselves belonged, and unless it was committed in prosecution of the common object of the assembly, there is no scope for the operation of Section 149. The common object of the unlawful assembly alleged in the charge is that if enforcing a right or supposed right on respect of Plots No. 774/1052 and No. 773 of 10 cottahs and of dispossessing the complainant and his relations from them and of assaulting those persons. Plot No. 774/1052 should be Plot No. 774, that is the 17 cottah plot, but this is an immaterial misdescription as there was no doubt as to the identity of the plot. The learned Sessions Judge has found hat there was no intention to disposses the complainants from Plot No. 773 and of course, there could be no intention to dispossess them from the appellants'' own plot No. 774 which was in the appellants'' possession. He also found that there was no common intention to assault anyone, the appellants having gone to their own field to cut their own, sugarcane. He considered however, that at some period in the affray a common intention arose to loot the crop in the complainants'' 10 cottah field; and in delivering his judgment he altered the nature of the charge substituting for the common intention there mentioned the common intention of looting the canes on the complainants'' 10 cottah field.

These defects in the charge he considered need not interfere with the conviction as looting was dispossessing the complainants of the crop although not of the plot itself. Assuming that this alteration at the last moment, without giving the accused the opportunity of adducing further evidence, notwithstanding Section 231 of the Criminal P.C., was not a material irregularity vitiating the conviction, nevertheless a serious and I think unanswerable difficulty arises, a difficulty which is entirely due to the unreliability of the prosecution witnesses. From the prosecution evidence it follows that at one period in the quarrel some of the appellants'' party left their own field and proceeded to the complainants'' 10 cottah field with the intention of cutting the crop there, whilst the rest remained where they were cutting their own sugarcane. Those who remained behind could have had no intention of looting the complainants'' field, and in the absence of any credible evidence as to the individuals who went off bent on looting it, it is impossible to say that the appellants were members of that unlawful assembly or that they can be held responsible for the acts committed by its members.

The learned Sessions Judge apparently thought that the admitted presence of the appellants at their own field was sufficient to involve them in liability without proof that they were amongst the party which separated and went off to loot the complainants'' field in persuance of a new intention, not originally existing, but suddenly conceived by some of these present. I hardly think, however, that the intention of those who separated can be imputed to those who remained behind, and who hitherto had committed no offence, so as to render them constructively liable u/s 149 for the acts of others who went off bent on an unlawful purpose. It has not been proved that any of the appellants took part in the raiding of the 10 cottah field if in fact it took place, for the prosecution story broke down upon the question of identification, as indeed upon other important matters and, although I regret that such acts as are shown to have taken place in this case should go un-punished it seems to me to be impossible upon the evidence which was found untrustworthy by the Sessions Judge to hold that the guilt of the appellants had been proved. Moreover, having regard to the nature of the evidence and the unreliability of the witnesses I am by no means satisfied that the appellants'' party cut the sugarcane in the 10 cottah field.

The story told is not a very probable one and is told in a very unconvincing manner. There seems to have been no sufficient reason why the appellants who had gone to the scene to protect their own property should suddenly make a raid upon the complainants'' sugarcane, which was not their original intention. The only reliable fact supporting it is the place where the dead body of Singeshwar was found and this, in itself, is far from conclusive. The circumstances are not inconsistent with the defence version although it is probable that neither side has disclosed the truth. It may be, for aught we know, the complainants'' party were pushed back in the general melee which began at the 17 cottah field until Singheswar and Rijhan fell near their own field some 60 yards away from where the fight began, although some one or more of the party exceeded in all probability any right of private defence. It is, however, unprofitable to speculate for as the prosecution story cannot be believed the offence charged cannot be substantiated. The convictions and sentences must be set aside and the appellants released from their bail.

Foster. J.

I agree.