Patna High Court
Bhagwat Singh And Ors. vs Emperor on 24 November, 1924
Equivalent citations: 86IND. CAS.996, AIR 1925 PATNA 378
JUDGMENT Adami, J.
1. The petitioners Bhagwat Singh, Jago and Bajo as well as Barho, the son of Kuldip, have been found guilty under Section 147 and sentenced to six months' rigorous imprisonment.; the petitioners Misri, Maluk, and Pokhan have been sentenced to six months' rigorous imprisonment under Section 148, Kuldip has been sentenced to nine months' rigorous imprisonment under Section 148 he was also found guilty of an offence under Section 324 but received no separate sentence; the petitioner Dhuro was sentenced to nine months' rigorous imprisonment under Section 147 and Pokhan was convicted under s: 325 but received no further sentence. The petitioners have been further ordered to furnish a bond of Rs. 200 each with two sureties of a like amount to keep the peace for one year under Section 106, Cr. P.C.
2. The petitioners are inhabitants of the village Ekarha in the Sheikhpura Police Station of the District of Monghyr, while the opposite party belong to the village of Itarha. These two villages are irrigated from the river Korihari, but whilst Ekarha abuts on the stream. Itarha is some distance from it. Both these villages and others in the old days were in the estate of the Nawab of Hussinabad, who leased them out to various thiccadars. It seems that in about 1872, disputes arose between the thiccadars of Itarha, Ekarha and other villages as to the rights of irrigation from the river. The Nawab of Hussainabad settled the dispute and issued a hookumnama, According to that hookumnama the villagers were to observe a parabandi, that is to say they were to take water from the river in turns. It is there mentioned that, according to ancient practice, Itarha was to get water by means of a bandh in the river at Arnadda, and was to take water for three days, then the village of Ekram was to get water for three days, and after that Ekarha was to enjoy it for five days. This order of taking the water has been observed since 1872.
3. Up to four or five years ago the Korihari river made a loop some distance south of Itarha, the top of loop being the nearest portion of the river to Itarha and there, in village Gangaura, it was the custom to put a bandh across the river bed and thus raise the water and take it through a pyne to Itarha and other villages. Four or five years ago, however, the river changed its course and instead of forming a loop as before, the channel ran straight on through the two bottom ends of the loop.
4. According to the prosecution case four or five years ago, the Itarha people, finding it impossible to get water by making a bandh in the deserted bed in the loop, made a bandh across the newly formed bed of the river between the two bottom ends of the loop in village Lohan. As Ekarha was situated on the river further down, when its turn came to get the water, the bandh was removed and the river flowed straight on up to Ekarha. This system of irrigation, as I have said, continued without any dispute from at least 1872 up to last year. Of late years there was no scarcity of water and no trouble arose. Last year, however, water was very scarce and at the time of occurrence, the bed of the river was dry.
5. On the 6th of August last, the complainant Somar Gope went with 50 or 70 men of his village Itarha and of the village of Ekram to the bed of the river and started to close up the bandh in the river in order to divert the water into their pyne for the purpose of irrigation. It was anticipated, it seems that the water would be coming down the river soon, and so they were preparing to get the water collected as soon as it arrived. While they were working at the bandh the petitioners and others, numbering about 200, came from Ekarha village, armed with lathis, pharsas, swords and garassas. The petitioners Jago and Bajo said they would not allow the bandh to be closed and when the Itarha people persisted, the Ekarlia men attacked them. The complainant Somar was hit by Barho with a lathi and by Kuldip with a garassa, Ram Lal and Barho Kandu were also assaulted. The Itarha men ran away and then the Ekarlia men cut the bandh. Barho was found to have received a slight injury on the head. Somar Gope had two severe incised wounds on the head and seven other slight injuries. Ram Lal's right ulna was fractured and he bore four other flight injuries. Information was given at the Police Station and the petitioners were sent up for trial and convicted as I have stated above. On appeal the convictions and sentences have been up- held by the Sessions Judge.
6. The defence put forward was that the accusation made against the petitioners was false and was made because they were on bad terms with the Nawab, they suggested that the Itarha people had had a fight with the people of Ekram that afternoon, and that, by an order of the Nawab, the people of the two villages had composed the difference and agreed to implicate the men of Ekarha, they denied the right of the Itarha people to make a bandh in the Korihari river at the place where this bandh was, and asserted that any rights that the Itarha people had previously had been extinguished by the change in the course of the river. In any case they pleaded the right of self-defence.
7. Both the lower Courts have come to the finding that the Itarha people had for long years enjoyed a right to take the water of the river by making a bandh. The hookumnama put forward by the prosecution was held to be a genuine document and it was held further that the story put forward by the prosecution was true. It was found that the common object of the Ekarha people was to commit mischief by cutting the bandh in the river and that they had formed an unlawful assembly.
8. Before us, in revision, Sir All Imam has not contested the findings of fact. He contends, however, that, on the facts found, no offence was committed, and that, since the easement which the Itarha people enjoyed had been extinguished by the change in the course of the river, the Ekarha people were fully justified in removing the new bandh put up by the Itarha people. He contends farther that, even if it is held that the mere change in the course of the river did not extinguish the easement, the change was sufficient to raise in the minds of the Ekarha people a bona fide belief that the Itarha people's right was extingnished, and, therefore, in cutting the bandh and attacking the itarha people, they cannot be said to have had an unlawful object or to have had any intention of committing mischief. He has also taken two other grounds with-regard to the procedure in the trial. He contends that the trial is vitiated by the fact that the provisions of Section 360, Cr. P.C. have not been observed and also by the fact that the accused persons were not examined in the manner required by Section 342 of the Code.
9. With regard to the first contention, he argues that Itarha not being a riparian village but being at some distance from the natural stream had no natural right to the water: it enjoyed the water only as an easement. He urges that, under the changed conditions brought about by the change in the river bed the enasement was extinguished. Under the grant furnished by the hookumnama Itarha had a right only to take the water through a bandh at Gangaura and as soon as that bandh became useless and water could only be taken by making a bandh in the new bed across the river, the easement came to an end, the right of easement could not be claimed to extend to the new site because the original grant restricted it to the taking of water by making a bandh at Arnadda.
10. Sir Ali Imam contends further that, if a new obstruction in the river causes a diminution of water to the inhabitants of riparian villages below, those inhabitants could commit no offence in opposing it. According to the learned Counsel's argument, the ancient and definite practice mentioned in the, hookumnama referred to the right to make a bandh at the north of the loop only.
11. It is true that when there is a change in the usual exercise of a right of easement a consideration of the question as to whether there has been any extinction of an easement comes up, but I cannot agree to the argument that the right conferred by the grant was primarily a right to set up a bandh at Gangura or Arnadda. The easement granted was a right to take water from the river and the mention of the bandh in the hookumnama merely indicated how this water was to be obtained. Unless the channel of the river was dammed it would be impossible to exercise the right of taking water granted by the hookumnama. In reality the alteration in the course of the river did not affect the right of Itarha to get wafer, the grant of an easement is prima facie also a grant of such ancillary rights as are reasonably necessary for its exercise and enjoyment. The only circumstance under which the servient tenement, namely, Ekarha, could in this case complain, would be if, by making the new bandh, the burden on the servient tenement was increased, that is to say, if this new bandh caused less water to go to Ekarha than had gone there when the old bandh was used. The owner of the dominant tenement cannot alter the flow or bed of the stream or river so as to increase the burden of servitude upon the servient tenement. But in the present case there is nothing to indicate that by the new bandh the Itarha people were procuring for themselves any larger supply of water than had fallen to them when the former bandh existed. I am strongly of opinion that the change of the bandh from Gangaura to the bed of the river at village Lohan did not in any way extinguish the right which the Itarha people had to get water from the river in their turn before the water was allowed to flow on to Ekarha. It may be mentioned that even under the hookumnama the bandh is mentioned as being at Arnadda, whereas the evidence shows that for the past 50 years the Itarha people have been obtaining water by making a bandh at village Gangaura without any opposition from the Ekarha people. It may be further pointed out that Ekarha was the servient tenement only so far as concerned the amount of water taken from the river before the water flowed to Ekarha, they had no rights over the land of Lohan where the bandh was erected.
12. The next contention put forward is that it was not necessary for the petitioners to establish that in fact the easement was extinguished, they only had to show that there was a departure from the previous custom which could give rise to a bona fide contention that the Itarha people had no right to use a new site for the bandh.
13. With regard to this contention, it is to be noticed that the Courts below have found that for the last four or five years the Itarha people have been getting the water from the river by erecting a bandh at the new site in Lohan and the people of Ekarha have not objected. It seems that this year the scarcity of water was so great that the Ekarha people were anxious to get the water as soon as it began to flow along the channel of the river and it is obvious that their action was due to an intention to stop the other villagers taking water first. It is plain to me that, knowing what had happened in the last four or five years, the Ekarha people can have had no bona fide, belief in their minds that the Itarha people were setting up a new right to which they were not entitled. They knew quite well that their action in destroying the bandh would cause loss and damage to the people of Itarha especially in a year when water was so scarce. I am unable to support the contention of the learned Counsel that the action of the Ekarha people was prompted by any bona fide belief that they had a right to remove the bandh.
14. The findings in the case are quite clear, and as I have said, Sir Ali Imam does not dispute the fact that the petitioners came with a mob and armed with weapons and assaulted the Itarha people and wounded them as stated by the prosecution witnesses.
15. The next contention is that the provisions of Section 360 of the Cr. P.C. were not complied with, because the record does not show on its face that the depositions of many of the witnesses were read and explained to them in the presence of the accused or their Pleaders. We have seen the record and it is true that, while in the case of six witnesses the examination-in-chief bears a memorandum to the effect that the deposition had been read and explained and admitted to be correct by the witness, the cross-examination of these witnesses and the whole deposition of the other witnesses do not bear this memorandum but have merely either the signature of the witness at their foot or in-some cases only a thumb impression of the witness. Sir Ali Imam asks us to hold that under these circumstances the trial must be held to be vitiated. He argues that the provisions of Section 360 are mandatory, and he relies chiefly on the case of Hira Lal Ghosh v. Emperor 83 Ind. Cas. 905 : 28 C.W.N. 968 : (1924) A.I.R. (C.) 889 : 24 Cr. L.J. 201. There is no doubt in my mind that the contention is correct that the provisions of Section 360 are mandatory and that their intention is to protect the witnesses as also to help the accused.
16. The learned Judges of the Calcutta High Court, Newbould, J., and Mukerji, J., have in the above cited case, laid down the law on this point, and there is no reason to disagree with their findings as to the mandatory character of the provisions of Section 360, But it is to be noticed that in that case there were two witnesses whose evidence was not read over to them at all and this fact was admitted by the prosecution. As in this case so in that case, the depositions of the other witnesses had been signed by them but there were no certificates that the depositions had been read over to them in the presence of the accused or their Pleaders. But there were two witnesses who, as I have said, had never had their evidence read over to them at all. Newbould, J., held that as the evidence of the two witnesses had not been read over to them there had been an illegality which vitiated the trial. Mukerji, J., stated "In the case before us the evidence was not read over to the witnesses at all. The depositions of five of the prosecution witnesses bear at their foot the signatures of the witnesses, and we are asked to presume from those signatures alone that the witnesses had actually read the depositions before they put their signatures down and as regards two of the prosecution witnesses their signatures even do not appear, and it is admitted that, so far as their depositions are concerned, there was no attempt made to comply even with the spirit of the section. There is, therefore, no escape in the present case, from the conclusion that the whole trial was conducted in utter disregard of the imperative provisions of the law as contained in Section 360, Cr. P.C. and was, therefore, a nullity."
17. It is plain, therefore, that in that case the learned Judges of the Calcutta High Court were impelled to declare the trial a nullity, because admittedly in respect of the two witnesses their depositions were never read over at all.
18. In the case of Iyotish Chandra Mukerji v. Emperor 4 Ind. Cas. 416 : 36 C. 955 : 14 C.W.N. 82 : 10 C.L.J. 581, on which Sir Ali Imam has relied it is to be noticed that the depositions had not in fact been read out to the witnesses, in fact it was the Counsel for the Crown who called the attention of the Sessions Judge to the non-compliance with the provisions of Section 360, but the Sessions Judge was wrongly of opinion that Section 360 was only a directory and not a mandatory provision and held that the non-compliance was a mere irregularity.
19. Now in the present case no complaint was made in the Trial Court that the depositions were not read to the witnesses, and in the Sessions Courts the point was not raised and no appeal was made on this ground. In the grounds put forward in the petition to this Court, there is no allegation that the depositions were not read to the witnesses. Sir Ali Imam has raised the point for the first time in his argument, and his argument seems to be that, because there is at the foot of the deposition of several of the prosecution witnesses no memorandum to the effect that the deposition has been read over and explained, this Court must hold that the depositions were not read over to them as required by Section 360 and, therefore, the trial was vitiated. We are asked to presume from the fact that these depositions do not bear a memorandum that the depositions were not read over and, therefore, the convictions must be set aside. There is no allegation made that, as a matter of fact, the depositions were not read over to the witnesses, and there is no admission by the Crown that there was a failure in this respect. We cannot in revision, look into a question of fact like this which had never been put-forward in the lower Courts. As a matter of fact the Code of Criminal Procedure in Section 360 does not require that a memorandum should be sub-joined to the depositions. In the Code of 1861 there was a requirement to this effect but that provisions has been repealed. Where the Code requires a certificate it states so in the section. I may refer to Section 164 and Section 364.
20. It must not be inferred that in our view the practice at present followed in all Courts of appending a memorandum to a deposition after it has been read and explained to a witness in the presence of the accused should not be continued, or that we consider such a memorandum unnecessary. It is obviously necessary in order to show on the face of the record that the mandatory provisions of Section 360 have been followed. What we do wish to point out is that the absence of a memorandum does not of itself prove that the provisions of the section have not been observed.
21. Sir Ali Imam argues that in a criminal case the Court cannot use the presumption against the accused that the provisions of the Code had been duly carried out and he further argues that the fact that there is a memorandum on some of the depositions to the effect 'that they had been read and explained to the witnesses, gives rise to the presumption that where there is no such-memorandum, the deposition has not been read out. We cannot assent to this proposition. In revision we are unable to enquire whether as a fact the depositions were read out or not, there being no allegation in any of the pleadings up to this Court that in fact the depositions had not been read out.
22. We are not satisfied that in the present case the depositions were not read to the witnesses, and, therefore, there is no reason to interfere on this ground.
23. Finally we come to Sir Ali Imam's objection as to the Court's compliance with the provisions of Section 342. It seems that, after the prosecution case was closed, the petitioners were asked whether they would make a statement after hearing the case which had been brought against them by the prosecution. The answer of the petitioners was "No I shall file a written statement" and thereupon a written statement was that same day filed by the petitioners meeting the points put forward by the prosecution.
24. Sir Ali Imam argues that under the provisions of Section 342, the Court at that stage was bound to question each petitioner generally on the case and that a mere question, whether the accused had any statement to make, was not a sufficient compliance with the section. He points out that The object of Section 342 is to give the accused a chance of meeting and explaining any points which have come out in the prosecution evidence against him and also to enable him to find out from the questions put by the Magistrate what points seem to have Especially struck the Magistrate and to require explanation. Even if the accused says that he will file a written statement, the Magistrate must still give him notice by the questions of what points are exercising the mind of the Magistrate. Sir Ali Imam has relied on the cases of Fatu Santal v. Emperor 61 Ind. Cas. 705 : 2 P.L.T. 288 : 6 P.L.J. 147 22 Cr. L.J. 417 and Raghu Bhumij v. Emperor 58 Ind. Cas. 49 : 1 P.L.T. 241 : 5 P.L.J. 430 : 21 Cr. L.J. 705 as well as on the case of Promotha Nath Mukhopadhya v. Emperor 71 Ind. Cas. 792 : 27 C.W.N. 389 : (1923) A.I.R. (C.) 470 : 24 Cr. L.J. 248 : 50 C. 518. It is quite true that the filing of written statement cannot take the place of the examination of an accused as required by Section 342; but in the present case the accused petitioners filed their written statement in answer to the Magistrate's question, and when asked to make a statement they said "here is my written statement". Sir Ali Imam contends that it was the bounden duty of the Magistrate, even though this written statement was filed, to put a number of questions to the accused.
25. Now experience shows that, when a written statement has been drawn up for an accused, he will commonly refuse to answer questions orally; he is very often instructed by his Pleader not to answer questions, and where an accused has refused to answer questions and puts forward a written statement, it would be useless for the Magistrate to go on questioning him, knowing that the only reply he will get is a refusal to answer questions.
26. The learned Government Advocate has shown that in the present case the written statement put forward by the petitioner covered all the points in the case. It is, very difficult to lay down a rule as to the minimum number of questions which should be put to an accused. If numerous questions are put, there is generally an allegation that the Court has attempted to cross-examine the accused.
27. While agreeing that it is the duty of the Magistrate to question the accused generally on the case, after the close of the prosecution, we are not prepared to hold that where the accused refuses to answer a question, the Magistrate is bound to go on asking questions especially where a written statement is put in at the time meeting the points of the prosecution
28. I can see no reason to hold that in the present case the trial has been vitiated by the fact that the Magistrate did not continue asking questions after the accused had refused to answer.
29. Finally Sir Ali Imam has moved for a reduction of the sentences passed against the petitioners on the ground that this was not a case of wanton aggression.
30. I have held, however, above, that the petitioners had no justification for their action and that it cannot be held that they had a bona fide belief that they had a right to attack the Itarha people and break down the bandh. The sentences are in my mind, not excessive, and 1 see no reason to reduce them.
31. On the grounds I have given above, I see no reason to interfere and would reject the application.
John Bucknill, J.
31. I agree.