Patna High Court
Pertap Rai And Anr. vs Emperor on 3 February, 1920
Equivalent citations: 56IND. CAS.231, AIR 1920 PATNA 216
JUDGMENT Mullick, J.
1. This is a case which arises out of a family dispute among some Rajputs residing in Mouza Choa. It appears that there was a dispute about land between Pratap on the one side and the deceased Kashi on the other, who was the son of Pratap's brother Mahatab. On the morning of the 4th of June last Kashi had driven away Pratap's labourers from the field and had some back to his house and was lying down reading. The evidence shows that be was a school master by profession.
2. Pratap is thereupon alleged to have gone with 15 others to Kashi's room, pulled him out and assaulted him with lathis. Kashi was assisted by his cousin Banwari and Banwari's sons Parbhu, Darshan and Jagar Nath. The allegation also is that Mahatab and his son Prayag joined Kashi's side, while Hublal, the brother of Mahatab, together with his servants and dependents assisted the accused, and an attempt has been made in the course of the trial to ascribe the fatal blow to Hublal himself. That allegation has been disbelieved by the learned Sessions Judge and although the Assessors found that Hablal, Pratap and his son Jagar Nath joined in the attack which resulted in the death of Kashi, the learned Judge has acquitted Hublal and convicted only Pratab and Baij Nath of the offense of causing grievous hurt under Section 325, Indian Penal Code, and sentenced them to rigorous imprisonment for four years each.
3. It appears that Pratap and Baij Nath arrived at about 9 A. m. at the Thana and made a complaint to the officer in charge. At 11 a. m. Hira, a relation of the deceased, arrived at the Thana and made a complaint as to the assault upon Kashi. The officer in charge did not ascribe very much importance to the case and told Hira to fetch the wounded man. When Hira returned he found that Kashi was dead and after some delay in obtaining bearers to carry the corpse, he reached the Thana again at about 7 p. m. when a regular first information was recorded.
4. The Sub-Inspector arrived at the place of occurrence the next day "and arrested 16 persons, all members of the family or servants and dependents of the family. Three out of these 16 were discharged by the Committing Magistrate, while the remaining 13 were committed for trial for offences under sections 147 and 30 read with Section 149, Indian Penal Code.
5. The learned Sessions Judge in his judgment, which is not altogether satisfactory, found we think that there was no unlawful assembly because the assailants of Kashi did not number 5. He thinks that only Pratap and Baij Nath attacked Kashi in his room and caused the injuries which resulted in his death.
6. The medical evidence shows that Kashi had three injuries on the head and face, which were probably the result of one lathi blow. He had also three injuries on other parts of the body, two of which were probably caused by lathis and one by a fall. There is also evidence to the effect that Parbhoo, Darshan, Jagarnath and Prayag on Kashi's side received injuries probably caused by lathi blows.
7. On the side of the accused the only persons hurt were Pratap and Baij Nath.
8. The statement of Pratap and Baij Nath, though not very clear as recorded by the Committing Magistrate, would seem to show that the defence was that there were two occurrences on that day, the first of which was a quarrel in the early morning between Pratap and Baij Nath on the one side and Banwari and Mahatab on the other about some civil appeal, in the course of which they were assaulted by some members of Banwari's party. They state that they then went to the Thana, that while Pratap remained on in the Bazar, Baijnath returned home alone and that on his return he was further assaulted by his former assailants.
9. Though the learned Sessions Judge has not discussed the evidence with sufficient fulness, we have ourselves examined it very carefully and we are not satisfied that his reasons for disbelieving the allegation that there was an unlawful assembly and a riot are well founded. We think that he has acquitted 11 of the 13 accused before him against the weight of evidence. At least as regards 7 there was clear evidence that they joined in the attack upon Kashi in his room and afterwards in his yard.
10. It is true that the witnesses Parbhoo, Jagarnath, Darshan and Prayag are relatives of those who were in dispute with Kashi, but having regard to the circumstance that the dispute is one between members of the same family and that the occurrence took place in the family homestead at a time and at a place where no independent witness could have been available we think that the learned Judge was wrong in rejecting the prosecution story and substituting a theory of his own.
11. We do not think it would be proper to reject the prosecution story and at the same time without any evidence at all to hold that it was Pratap and Baij Nath who struck the fatal blow. At the trial an attempt was made to show that Hub Lal and Baij Nath gave the deceased one or two lathi blows while he was lying on the yard and while his remaining assailants were running away. Possibly the object of the witnesses who made this statement was to fix Hub Lal and Baij Nath with the fatal injury. But reading the whole evidence it seems clear that the fatal injury was inflicted when the seven men who were aimed with lathis pulled the deceased out and attacked him in the verandah and before he was knocked down. It is difficult in these circumstances to say what particular part each played in the attack, and it is for that reason that the Committing Magistrate charged the accused before him with offenses under sections 147 and 149 read with Section 304, Indian Penal Code. As to those whom the learned Sessions Judge has acquitted we think that there was evidence to support the charges, but we are not now concerned with their acquittal.
12. Mr. Varma who has said all that it was possible to say on behalf of his clients has suggested to us that it would be extremely dangerous if we were to accept the prosecution case against Pratap and Baij Nath, for that would amount to a reversal of the findings upon which the acquittal of the remaining accused was based and might be taken by the Crown as an invitation to appeal against their acquittal. We have no concern with that contingency. What we have to see is whether the learned Sessions Judge was right in rejecting the allegations as to rioting and constructive culpable homicide not amounting to murder in respect of Pratap and Baij Nath. We think that inspite of the discrepancies between the statements made by the eye witnesses before the Police and those made by them before the Sessions Court, the witnesses have substantially told the truth as regards the assault.
13. It may be conceded that the witness Darshan, although he now professes to have seen the whole of the attack from beginning to end, did not really arrive till Kashi had been knocked down. The other discrepancies seem, in my opinion, neither serious nor material and making the fullest allowance for Mr. Varma's contentions, I think it is abundantly established that more than five persons attacked Kashi, that Pratap and Baij Nath were members of that unlawful assembly, the common, object of which was to beat Kashi for having resisted the cultivation of the lands in dispute, and that the fatal blow was inflicted in prosecution of that common object.
14. Mr. Varma has attempted to suggest that the lightness of the other injuries upon the body of Kashi indicates that the lathi blow on the head was an accident. We are quite unable to accept this suggestion. There can be no doubt from the position of the injuries that they were inflicted voluntarily and having regard to the fact that lathis do and are commonly expected to cause death if directed at the head of the victim, there can be no doubt that the assailants knew that death was likely to result.
15. In these circumstances we think the conviction under Section 325 should be set aside and the conviction under Section 149 read with Section 304, Indian Penal Code, be substituted therefor. The sentence for four years' rigorous imprisonment will remain unchanged.
16. We may observe that the appellants were in fact charged before the learned Judge under sections 147 and 304 read with 149, Indian Penal Code, and that while convicting them under Section 325, the learned Court has passed no orders under sections 149 and 304. We desire to draw the learned Judge's attention to the case of Jatindra Nath Chatterjee, v. Emperor 11 C.W.N. 696 : 34 C. 698 : 6 Cr.L.J. 427 where it was held that if an accused is charged with grievous hurt under Section 325 read with Section 149, Indian Penal Code, he cannot be convicted of the substantive offence under Section 325, Indian Penal Code, such a course not being warranted by the provisions of sections 236, 237 and 238, Criminal Procedure Code.
Sultan Ahmed, J.
17. I agree.