Patna High Court
Emperor vs Artu Rautra And Ors. on 7 March, 1924
Equivalent citations: 81IND. CAS.82, AIR 1924 PATNA 564
JUDGMENT Bucknill, J.
1. This was an appeal made by the Grown against the acquittal on July 27th last by the Sessions Judge of Cuttack of five men who had appealed from their conviction by the District Magistrate of Puri on the 12th March last in respect of certain, offences to which detailed reference will presently be made. The main facts are very simple but are peculiar and some difficulties arise in a proper consideration of the evidence owing to the fact that in the unfortunate affair out of which these proceedings arose the complainant--a European--and those of the accused--all Indian persons--with whom he spoke obviously did not completely understand each other's conversation. The complainant was a Mr. Percy Brown who is the Principal of the Government School of Art at Calcutta. Just before Christmas 1922 he came on a visit to a place called Balighai (which is about nine miles from Puri) partly with the view of shooting black buck and partly with the object of seeing the Konarak temple which is in the neighbourhood. Mr. Brown had,, during the previous jive years, on several occasions shot near Balighai and had killed some black buck in the vicinity: he had apparently never asked or thought it necessary to ask anyone's permission so to do and certainly had never been reqested not to shoot there. There is nothing in the least unusual an such conduct for although it is common ground that the proprietor of an Estate can (and many do) prohibit shotting on their property except by their invitation or with their permission, it is equally a matter of agreement that in this country it has always been the practice for many sportsmen to roam at large over the country side in search of game without interference on the part of the proprietors of the land on which they pursue their quarry and without obtaining the sanction of the land's owners: it is assumed that the proprietors give a tacit acquiescence though no one would suggest for one moment that a proprietor could not prohibit shooting on his property or request the withdrawal from it of anyone found thereon engaged in such sport. It is also desirable to clear up a point in this connection as to which there seems to be some uncertainty in the minds of some members of the public it is this: If a person, kills a wild animal or wild bird on the property of another person such dead creature does not belong to the killer but to the proprietor of the property and such proprietor either himself or by his duly authorized agent can lawfully demand and, if refused, seize such dead creature from the possession of the killer: and such persons as help him to exercise his right are doing no wrong: but as against any person other than the proprietor of the estate or his duly authorized agent or those lawfully helping the proprietor or his agent, the killer has a right to retain possession of the dead creature which he has thus killed. It is necessary to realize the above postulates (about which there is in law no controversy) in order to approach correctly a proper consideration of what took place in the present occurrences.
2. On December 26th (1922) Mr. Brown went out in the evening to shoot black buck: he took with him three Shikaris, Jatu Gochait (P.W. No. 2), Bancha Gochait (P.W. No. 3) and Kalu Padhan (P.W. No. 4): these men speak Oriya: they do not understand English or Hindustani: they live in the neighbourhood in which Oriya is the familiar speech of the inhabitants. Mr. Brown does not understand Oriya but-says that he speaks Urdu fairly fluently having had 23 1/2 years' service in various parts of India.
3. It is once more common ground that Mr. Brown's pursuit of game on the day in question was conducted at all material times on land which is part of a property known as the Paikpara Estate: it would seem that the Raja to whom it belonged had recently died and that the estate was in the hands of Executrices: but, at any rate, a lady, who is referred to as the Rani, has been, throughout this case, mentioned as the individual in control of the estate: she is a Pardanashin lady who normally resides in Calcutta. Mr. Brown saw a black buck on open ground about a couple of miles from Balighai, had a long shot at it but only succeeded in wounding it; and it made off, Mr. Brown following it; it ran about half a mile or so and then lay down at the edge of what has been indifferently described as "some jungle bushes," "an open grove," "forty Polong trees" "a Bagicha i.e.s Orchard Garden" but which was evidently at any rate in part a more or less formal plantation of these Polong (oil seed) trees. This plantation is about a quarter of a mile from a village known as Hingora which is roughly two miles from Balighai. Mr. Brown then got in another shot, killing the animal: and he and his Shikaris went up to the creature and the latter were tying its legs together in order to carry it away. At this juncture a man named Padma Charan Mahanti, who is one of the Tahsildars of the Paikpara Estate and who admittedly is the Manager in local charge of that portion of the property in which lay Hingora village and the place where the black buck was killed, came up from the village and addressed Mr. Brown in Hindustani.
4. It may be conveniently here noted that the Tahsildar was convicted by the District Magistrate, firstly, of an offence punishable under Section 147 (riot) of the Indian Penal Code and was sentenced thereunder to nine months rigorous imprisonment and to pay a fine of Rs. 300 and in default of payment of such fine to a further two months rigorous imprisonment; and, secondly, of an offence against and punishable under the joint provisions of Sections 149 and 323 of the Indian Penal Code (being a member of an unlawful assembly and guilty in prosecution of a common object of voluntarily causing hurt) and was sentenced thereunder to nine months' rigorous imprisonment, such sentence of imprisonment to run concurrently with that imposed upon him in connection with his conviction under Section 147 of the Indian Penal Code. Out of the fine, the District Magistrate ordered that a sum of Rs. 100 was to be paid to Mr. Brown by way of compensation for injuries caused to him and his property. The Tahsildar was acquitted by the Sessions Judge: he has now disappeared and, in consequence, no notice of the present appeal by the Crown challenging his acquittal could be served upon him: no appeal, therefore, is, with regard to his acquittal, before this Court. But the evidedce as to what took place between him and Mr. Brown is of great importance in its bearing upon the events which took place. It is quite clear that Mr. Brown did not completely understand the Tahsildar nor did the Tahsildar clearly understand Mr. Brown. One of the Shikaris thought that Mr. Brown was talking-English.
5. Mr. Brown in the First Information which he sent to the Police on the following day writes " A few minutes after I had shot the buck and was arranging for its removal a man like a Babu ran up (afterwards identified as Padani Baran Mahanti) and in a very truculent manner said I had no right to shoot an animal in his garden. Although in man was very offensive in his speech I was endeavouring to explain to him in Urdu that the open plain could not be regarded as a garden when he was joined by another man with a heavy stick or lathi (afterwards said to be named Arat Raothura) whose attitude and speech generally was most threatening. He also had the same complaint as the Babu. For fully 20 minutes I endeavoured to conciliate these two men by offering to do anything they wished within reason giving my name and address, and stating that I was prepared to lay the whole matter, to which they objected before any responsible person. It had no effect, they both became more violent and menacing especially Arat Raothura with his lathi. Eventually this man said he would remove the buck to his Kacheri, so I said I would come with him and probably he would be willing to provide me with pencil and paper so that I could give him my name and position, also take his and the Babu's so as to submit a report. This only led to more threats and insolent behaviour from both. I proceeded with them about f th of a mile to a busti since identified as Budda Gaon Bangora. By this time we had been joined by a number of villagers, but instead of going to what I expected a Kaeheri, he went to a hut at the entrance to the above named village, threw the black buck into , this, shut the door, making evidently an offensive remark as all the villagers began to jeer at me." In his evidence at the trial Mr. Brown deposed " I was arranging to move the body when a Babu, this man with the mauve cloak (identifies Padma Charan accused) came up and asked me in a very truculent manner what right I had to shoot a deer in his garden (Bagicha or Bogan was his word he used). He spoke in Hindustani. I tried to explain to him that this was not a garden but the open plain. While I was talking to him this man (identifies Artu Rautra accused) whose name I subsequently ascertained, to be Artu came up with a heavy stick in his hand about five feet long, aeeompamed by two or three others. One of them referred to himself as the President. He is, I am almost sure, this man (identifies Bancha Nidhi Paikara accused) I cannot swear to the identity of the others at least I cannot identify any of the accused as one of them. These men were followed by others arriving gradually on the scene. Artu asked practically the same question as the Babu. I call him that as he called himself as the "Nala or Tala Babu," only much more truculently with a distinctly threatening manner. I tried to explain to them that I was unaware that I was doing any thing wrong, told them my name and occupation and residence and that I was a Government servant, and I said I would be glad to go before some authority to settle the matter. I must have been about a quarter of an hour trying to conciliate them without success. Artu began to wave his stick and threaten me, c.g., when I said I proposed to take away the deer, they said "turn nahin le jaec/a" all the time they said "turn" to mo. Artu said he would take the body to his Kacheri. So I said I would go with him. I thought I should at least be able to write my name and address and lake his and others' names and addresses at the Kacheri. Artu had the body dragged to a village which I learned after wards to be Baragaon, myself, followed by my Shikari a little way behind, following.
6. "All this time Artu was shouting in my face in a very insulting manner, en-courged by Fad ma Charan. I should mention that I had handed my rifle over, to one of the Shikaris after I had shot the deer either before or at the time when Padma first came up.
7. "Just on the outskirts of the village there was a hut under construction, which Artu said was the Kacheri. He and his two men who were dragging the deer opened the door of an adjoining hut, threw the deer's body inside, shut the door, Artu making some remark as he did so, which I could not understand, I thought it was Oriya, as I understand Hindustani, which made the crowd laugh. The first to arrive was Padma Charan, three to five minutes after the shot. He did not tell me that the Tala Babu had prohibited the shooting of animals in his Zemindari. I call Padma: Charan "Tala Babu" because he called himself that. Artu said more or less the same as Padma Charan namely "Why are you (turn) killing buck in my garden? and they claimed that the body was theirs. They replied to me in Urdu. I do not remember enquiring whether the buck belonged as a tame buck to Artu, or any suggestion to that effect being made by any body. I remember telling him that the trees near by were certainly not a 'Bagicha, I never doubted what they told me, namely, that the malik was the Paikpara Estate. I regarded the buck as mine because I had shot it and still do. There was go-down and a half finished hut. By "go-down" I mean a two roomed shanty. It was in this that the deer was put. People may live there for all I know. It may be used as a Kacheri for all I know. I do not remember any one else arguing with me except the 'Tala Babu."None attacked me except Artu. The rest were merely shouting in their own tongue. They were insulting and menacing but not indecent, as far as I could understand. Of course, I do not know Oriya, tum jao' was said often, and when I said 'Ham Sarkari Officer hai they replied 'Ham bhi Sarkari Officer hai rediculing me. I cannot repeat what they said verbatim. I remember telling my name and asking them and Padma Charan and Artu saying "ham nahin dega". I am not aware that Oriya cultivators always say 'tum' to respectable people.
I spoke to the 'President'. He said to me 'What do you mean by shooting an animal in my garden' or something of that kind. I said Who are 'you' and he said 'I am the President'. I cannot recollect the dialect he used, nor am I positive of the exact nature of the conversation except that he said he was the 'President'. He talked to Artu and Padma Charan, but I cannot say what he said. I cannot recollect his taking any part in the subsequent proceeding's. He disappeared in the crowd. I do not remember thel word 'Bagato' I remember 'Bagicha'. I certainly intended to take the buck.
8. It may be again convenient here to-observe that this Artu or Artu Kautra (who is a man of about 30 is a petty tenant on the Paikpara Estate living close to the scene of occurrence and an agent for securing pilgrims and persuading them to entrust themselves to the care of a certain priest at Puri) was convicted by the District Magistrate, firstly, of an offence punishable tinder Section 147, Indian Penal Code (riot) and, was sentenced thereunderto nine months' rigorous imprisonment and, secondly, of an offence punishable under Section 323 (voluntarily Canning hurt) in respect of which he was also sentenced to nine months rigorous imprisonment; such imprisonment was to run concurrently with the other sentence of nine months' rigorous imprisonment imposed upon him: and to a line of Rs. 50 in default of payment of which he was to undergo one month's further rigorous irnprisonmentt. He was acquitted by the Sessions Judge on appeal.
9. The so-called 'President' bears the name of Bancha Nidhi Paikara: he is a Chaukidari President: he was convicted by the District Magistrate, firstly, of an offence punishable under Section 147 of the Indian Penal Code and was sentenced thereunder to six months' rigorous imprisonment: he was, secondly, convicted of an offence against the combined provisions of Sections 149 and 323 of the Indian Penal Code but no separate sentence was passed in respect of this offence. He was acquitted on appeal.
10. Now the principal Shikari, Jatu Gochait (P.W. No. 2) to whom all the accused were well known (as his own home is only about a mile distant) deposed, "The Sahib shot a buck, in the open and its leg was broken, and it moved off about half a Pan (a Pan is half a mile) when it sat down, and the Sahib shot it dead." There was Polong tree some 20 cubits away, and some other trees and bushes. Then up came various persons whom I knew before--my village is about two Paus only from there. Artu (identifies accused) and then Pad ma Charan (indentifies accused) and this Naitha Barjind (identifies accused), Bancha Nidhi Paikara (identifies accused) and Chema Bhoi (identifies accused) and Baiji Deori (identifies accused) and one or two others came up together. While we were tying the deer to move it Artu said "We will take it". Padma Charan ord erect Ohema Bhoi (accused) and a boy whom I don't know to take away the deer. The Sahib protested at their removing the deer, but they would not listen to him and said "Who gave you permission to shoot the deer" and took away the deer. Mr. Brown had given his gun to Bancha Gochait. They were quarrelling with the Sahib and objecting to his following them, "Who are you that you follow 'us.' I was close to the Sahib but the other two were prevented from coming close by Artu. The deer was taken to a house which was under construction, and was placed in one of the small houses near it which had also been built recently. When the deer had been put into the room Artu pushed me away. I moved aside two or three cubits. It was Padma Charan who objected to Mr. Brown taking the buck originally, also Artu. He gave no reason.
11. "There is a 'Mella Bagicha' (open grove) near where the buck fell: it has no fence. There are some Polong trees there, planted by Lala Babu. Lala Babu died a long ago. Padma Charan works for the malik collecting rent for him. I don't know where the maliks are. I can't say why they demanded the buck and took it away. It was zabardasti. I have never heard of any Sahib having, his buck taken away before. I have for three years helped Mr. Brown in the Shikar. I have been the Sahib's Shikari during his annual visits for five or seven years. In previous years too he shot black buck. Yes; he shot buck previously one mile or so from the village. The Sahib was 1/2 or 3/4 of a mile from the village, Padma Charan and Artu came when the buck was being tied up to be taken away. That was half a "ghanta" after the shot which killed it. They said the harin (deer) was in their elaka and they would not allow the Sahib to take it. The elaka is the Lala Babu's Zemindari. I didn't repeat it to the Sahib. I knew it before that. The place where the buck was placed was the Lala Babu's Kacheri I did not go into the Kacheri. The but in which the buck was is not the Kacheri but a cook house. The Kacheri is the building near by, which is incomplete. The cook-shed was constructed for the Gomashta Padma Charan. The incomplete one for his dwelling The two buildings are in the same hata (compound). The Sahib protested before they put the buck inside the hut, while it was still outside. Artu said 'I won't give it you. The Sahib told the persons assembled not to take it. He had his foot on the buck. It was for about half a ghanta that the Sahib stood there. I kept telling the people that he was a bara Sahib and that they should not thus make a row. The buck the Sahib shot had not a rope round it. The 'President' spoke to the Sahib at the place where the deer was killed, but not anywhere else. (To Court) I could not say what the President said, as there was golmal going on."
12. Another Shikari, (Bancha Gochait P.W. No. 3) deposes, " The Sahib saw a harin in the sand and shot and wounded it. It went away about half a Pau and lay down, and the Sahib shot it again, killing it. There are about 40 Polong trees some 40 cubits away from where the buck, fell and died. We were going to take it away, when some villagers carne up. Natabar Je-na (identifies accused), Udaynath Jena came, and Artu (identifies accused) and the Tahsil-dar (identifies accused) and Chema Bhoi (identifies accused) and Bhaji Deorhi (identifies accused) and a lad of 15 or 16 years old whom I do not know. The Tahsildar and Artu demanded to know from the Sahib under whose orders he had shot the deer and took away the deer. After that the Tahsildar and Artu gave an order and Chema Bhoi (accused) and the boy took away the deer towards the Kacheri of the " Lala Bab u " The Sahib and we three followed it. Artu and the Tahsildar as we came along said " There will be a danga-hangama (riot); go away " He said this to- us three Shikaris. I and Kalu Padhau stopped. I had the Sahib's gun and cartridges. I have not been the Sahib's Shikari before. The buck was shot two Paus from the village in first shot. The second shot was about a Pau from the village. The people came up immediately after the buck was shot. We were tying the buck when they came up. We had not finished. The villagers ordered the Bouri to take the buck away when they came up, and they made a jhagra (quarrel) with the Sahib, saying Why are you killing a buck here and the Sahib saying he had killed it. This- was the only subject of the jhagra. Artu did not say that the buck was his tame buck. Nor did any one else say it. I live two Pans away from the place, I knew all the accused before. The Sahib did not ask me their names. I and Kalu Padhan were sitting about a Pau from the Kacheri. There is a Kea fencing in between about 5 cubits height. Jatu is my brother. I am not certain whether the President came up to the buck. I did not see him, nor did I see Inderjit. I knew them both before."
13. The third Shikari (Kalu Padhan) P.W. No. 4 deposed, " The Sahib shot a buck and wounded it. It went off wounded and lay down some distance away, where the Sahib again shot and killed it. It was a sandy place, near some Polong trees 100 cubits away. We were going to move the buck when. Padma Charan, Artu Paika, Bancha President and Bhaji and Chema B.hoi eame up (identifies the five accused). There were five or six persons. I can't remember any more names. They made a takrar (dispute) with the Sahib, asking him who he was to shoot deer in, this elaka, and told him they would not allow him to take the deer. The 'Tahsildar passed an order and Chema Bhoi and a young man took off the deer to a newly construtcted house at the Basti, Math the rest of them. The 'Sahib followed, and we three. Artu said to us, "Why are you Salas coming go away.' But we followed a little and, then, in fear, remained about 200 cubits from the house. But we could see the house. They put the deer inside the house. (To Court) I did not notice any of the other four accused pursuing the Sahib. Padma Charn was not pursuing the Sahib. He remained near the Kacheri. I did not see these three men (namely Udayanath Barjana accused, Bhaju Tewari accused, and Bulai Inderjit) with the pursuers. I did not notice Bulai at the marpit. I saw Parjanas. I was about a Pau away from the crowd which pursued the Sahib. Jatu Gochait; was with the crowd", And in cross-exanimation he added, Padma Charan said to the Sahib, Why have you killed a buck in my Mauza. He did not say that shooting of buck had been prohibited, nor did Artu say that it was his pet buck; nor had the buck a rope round its neck. The Sahib spoke "English "... Padma Gharan and Artu spoke Oriya. I could not understand what the Sahib said. Bancha Gochait had the Sahib's gun; and I had the cartridges, two packets. Artu said to the Sahib Why are you (tum) standing here? I did not hear the Sahib speak to him. Bancha Nidhi said something Oriya to the Sahib, which the Sahib could not understand. He said 'We will take the harin. He did not explain why. Jatu and Bancha Gochait were there. I saw Bancha Nidhi at the pursuit. There were 10 or 15 persons pursuing at the men. I saw him half of Pau away. I did not see him later as I went away myself."
14. The above depositions introduce the names of the other accused and it is, once more, convenient here to refer to what happened in their cases. Chema Bhoi is a servant in the employment of the Paikpara Instate and his duties were to look after the Polong plantation near which the buck was shot; the Polong' tree is a tree, of agricultural utility producing seeds which are pressed to make oil for lighting purposes. He is under the Tahsildar's orders: he was convicted by the District Magistrate of an offence punishable under Section 147 of the' Indian Penal Code and sentenced to four months' rigorous imprisonment; he was also convicted of an offence against or punishable under the joint provisions of Sections 149 and 323 of the Indian Penal Code but no separate sentence was passed in connection with this latter conviction. Udaya Nath Barjana and Bhaji Deohri ordinary villagers were convicted of precisely the same offences as was Chema Bhoi but each received sentences of six months' rigorous imprisonment instead of, as he did, of four months' rigorous imprisonment: he, Cherna Bhoi, receiving a lighter sentence because in the view of the District Magistrate, there was some excuse for him as he was a servant of the Estate and expected to obey the Tahsildar's instructions. All these three men were acquitted on, appeal. There was a 7th accused--another villager named Banamali Indrajit but he was acquitted by the District Magistrate as his identification as having taken any active part or indeed any part at all in the affair did not appear to him to be very satisfactory. Mr. Brown, of course, did not, prior to the occurrence, know any of the accused personally or by sight and only identified the Tahsildar, Artu and the President.
15. Having thus explained the preliminary steps in what took place, the narrative may now be resumed at the point where the Tahsildar, the President, Artu, Mr. Brown and his head Shikari (Jatu), with Chema and a boy carrying the buck, and a small party of villagers, had reached the so-called Kacheri and the body of the buck had been put into a room.
16. Mr. Brown, was much chagrined; he thought he had a right to the buck's carcass; he had hoped that when he had got to the village he would be able to find someone of some authority who would support his claim; and when he saw that there was no such person there and that the buck was definitely appropriated, he intimated as clearly as he was able (it seems very doubtful if any of his auditors understood properly what he said) that he and his Shikari were going to take the buck from the house where it had been deposited; and, was, apparently, on the move towards the door of the room where the buck was when Artu hit at his head with a heavy lathi; Mr. Brown warded this attack off with his left hand and endeavoured to push Artu away with his right; Artu again struck Mr. Brown on the head smashing his "solar topee" and knocking it oft and numbing Mr. Brown's right arm which he had raised to ward off the blow; Artu then aimed a third blow, but the Shikari, Jatu, rushed in between him and Mr. Brown and received the blow intended for Mr. Brown on his (Jatu's) left arm. A friendly, though rather rough, villager, then pushed Mr. Brown away advising him, by gesture, to take to his heels; which Mr. Brown prudently and hatless did. The Shikari (Jatu) and some of the villagers tried to prevent the infuriated Artu from pursuing him and succeeded in delaying him (and others) to some extent. Mr. Brown thus got a start and making the best use of his speed, (he is a gentleman of about 50), fairly out distanced his pursuers (who consisted of: Artu brandishing his lathi and about 15 or 20 villagers some with sticks) who with loud yells joined in the chase; however, they soon saw that Mr. Brown could cover the ground faster than they could and so gave up the hunt.
17. In the course of this run, Mr. Brown succeeded in taking his riflle from the Shikari (Bancha) who was holding it and who had been cautiously watching what was taking place from, a safe distance of about 100 yards away. Jatu, who, no doubt, stuck to his employer very pluckily, appears to have diminished sensibly the ardour of the pursuers by offering to them money so that he should buy off the chase, such demands for money being made, so he says, by Artu and Bhaji who were amongst the chasing crowd.
18. It is quite clear that neither the Tahsildar nor the President took any part in this cross country run; but Udaya Nath and Chema ran with the others; it seems however moderately certain from the evidence that neither Baji nor Udaya Nath carried anything in their hands but Chema may have carried a ban (a small stick).
19. Although it has little, if anything, to do with the questions now before this Court it is a matter of interest to observe that Mr. Brown, soon met some friends; and went hack to the village with them; the village was almost empty but he succeeded in catching the Tahsildar and handed him eventually over to the Police; but with these later matters we are not now hero concerned. It is now important to give, verbatim the evidence which relates to this unpleasant episode which took place at the village in which Mr. Brown was injured. In his First Information Mr, Brown states: "I then proceeded to explain to him (Artu) quitely in spite of his repeated shouting into my face and other threatening actions with his stick that I considered he was in the wrong; that he had not taken me to a Kacheri; that his action was mere "chalaki" (fraud); that having found this out I was justified in taking the buck from him and that I should do so. I may add that all the time he was being abetted by Babu Padam Saran who was evidently instigating him to continue his threatening manner. I must confess that I thought most of this was bluff and hardly anticiapted what was to follow. I called Jatu, the Shikari and told him to take the deer out of the hut, moving towards the door at the same time. Padam Saran made some remark to Artu Raothura and the latter at once flew at me with his lathi. I warded off his first blow aimed at my head with my left hand, getting the force on the palm so that my arm dropped numbed but I endeavoured to push him off with my right. It was little more than a flat handed push as the man was stick length away from me and I was absolutely unarmed, the Shikari with my rifle having bolted some time before. However my action caused Artu Raothura to become almost mad with fury and he rushed at me again smashing my solar topee with his stick, knocking it off my head and almost rendering by right arm useless as I raised this in defence. He came for me a third time and I think would have almost finished me; as I was bare headed, and both my arms were numbed, but I backed away and Jatu the Shikari, (who all along behaved very well) flung himself in between, receiving the stick aimed at my head in his left fore arm which it is a wonder it did not break. At the same time one of the villagers pushed me down the slope and made signs for me to run as I had no means of defending myself. I saw that this was the only thing to do and ran away. As I did so I saw Artu Raothura waving his stick and carrying on like a mad man while the Shikari, aided by one or two of the villagers, was endeavouring to restrain him; after a short time Artu. Raothura broke away from them and being joined by about 15 to 20 of the villagers started with lathis waving and yelling to follow me at a run. I had, however got a fair start and seeing the gun Shikari hiding near seized my rifle and made for Balighai; yelling and waving their lathis the gang ran after me but Jatu the Shikari who had been joined by one or two others did their best to delay them by throwing themselves at their feet. After a time they gave up the pursuit as I had gained a considerable distance and retired to the village. I was then joined by the Shikaris who stated that they had appeased them with a rupee and a promise of more. I may add that without any desire to exaggerate the gravity of the situation I am convinced that the intention was, as I was alone and unarmed, to beat me senseless or probably worse. Inflamed by the remarks of Padam Saran and led by Artu Raothura I think the gang was quite capable of murdering me and actually how I escaped this was merely due to Jatu and other lucky circumstances." In his evidence at the Trial Court Mi. Brown deposes, "By this time there were not only the original crowd but some from this village, at least 25 of them. Artu harangued the crowd with a menacing attitude towards me working himself up, so to speak. I told him that I thought the whole thing was chalaki i.e., that I had been brought to the village in false pretences. I told him he had looted me of my Shikar. I said to Artu that I was going to go into the house to get the deer, and I mentioned to the Shikari Jatu (to Court: it was not he who had my gun) to help me. Jatu was 10 yards or so away. He was motioning me to clear out, as he was beginning to see trouble ahead. As I turned towards the hut Padma made some remark; I could not understand it; and Artu came at me with his stick. He was a few yards away on some rising ground. He struck at me with his stick at rny head and I caught the blow on my left hand. The blow disabled my left hand even now I cannot use it fully. At the same time I struck at him with my right hand which enraged him still further; and he came at me again with his stick. His second blow knocked off my topee, and partially disabled my right hand. Perhaps the blow descended down from the brim of the topee into my hand; but I cannot be sure. I was now bare headed and more or less helpless owing to the two blows, when he attacked me a third time with the stick mad with rage. The blow would undoubtedly have hit my bare head and finished me when Jatu threw himself in between, taking the blow on his arm. This caused a diversion, and a tall villager, an elderly man.--he is certainly not one of the accused--threw himself on me, roughly pushed me down the slope, signing me to clear out though he did it roughly, and said "jao, jao" it was evidently meant to help. Meanwhile Jatu, and probably one or two others with him, were restraining Artu from again coming for me. My recollection is of Artu still waving his stick and trying to come at me. I made a bolt of it down the slope tow ards Balighai. I passed by the Shikari who had my gun (not Jatu) and took it from him as I ran. (To Court) I did not attempt to use the gun which had no more ammunition or the magazine. I had never threatened the villagers that I would use the gun. I had never at any time intended to do so, and the gun was never in my hand, nor had I attempted to take it from the Shikari till I began to run."
As I ran towards Balighai, I heard a great deal of shouting behind me, and I turned and saw the red shawl or blanket of Artu quite distinctly. When I was about 100 yards away the crowd began to run after me shouting and waving sticks, and. I could see Artu's red shawl in front, 4nd Jatu Shikari still trying to restrain him. My impression is that Jatu and two or perhaps three others were trying to restrain Artu and the others--; there were a good many fifteen or twenty of them most of them with bamboo sticks--there were a lot of bamboos about by the hut under con-straction, At least twice in the first two or three hundred yards the crowd were temporarily stopped by these two or three men apparently throwing themselves at their feet, but each time they got free and came on shouting. I was, however, gaining ground, running as hard as I could in the sand. After a chase of about a quarter of a mile they stopped, and I could see a lively and loud discussion, mixed with shouts going on. I ran for about a mile; two of the three Shikaris--I do not remember noticing the third then came walking behind me. I stopped, as the crowd were apparently stopping and returning back, and waited for the Shikaris.
I had been unable to recover my topee, and it was when I was thinking of picking it up that the elderly villager had pushed me; possibly then, I say, that I should have been knocked down by Artu if I had tried to pick.it up.
20. "The Shikaris told me they had promised or given annas 4 on my behalf to the villagers to send them away; at the moment I saw four mounted Sahibs on horses. I shouted to the Sahibs, who came up. I told them briefly what happened. One was Mr. Walker, whom I knew slightly, and the others were, as I learned later, Messrs. Sidney, Thomas, Burder, all visitors from Calcutta. (To Court) I had only just seen them at the Railway Station before, but had not met them afterwards.
I persuaded them to come back with me to the village... Mr. Walker's horse reared and threw its rider and fell on me. The confusion gave Padma Charan the chance to escape, he was not tied and he bolted up a narrow side alley only wide enough for one man. I extricated myself and pursued him down the alley and across a courtyard, and he was j ust going through a breach in a wall when he staggered. I sprang on him and brought him down to the ground. The other Sahibs came up. There was a well rope and we tied his hands up. He then saw the game was up and said he (?) "Ham sab bolega, Ham sab nam dega" (I will tell everything; I will give the names). He pointed out a house which he said was Artu's, The party with me succeeded in breaking open the door with their shoulders but the house was empty and had a back door.
(To Court) As regards the part taken by the persons named in my report I have described the part taken by Artu before, at and after the assault. I cannot remember Padma Charan or any particular man after the assault. The "President" was amongst the crowd at the time of the assault and I noticed him as particularly truculent just before the assault. I do not remember him afterwards.
21. "I have no recollection of the faces of any of the other four accused....Neither I nor my servants went further towards taking the animal out of the buildings than I had described in my examination-in-chief. I was just turning to go to the door, when I was attacked.
22. "They told me to 'clear out.' I did not do so, as I had been deprived of my buck.
23. "My push with the right arm was in self-defence simultaneously with Artu's attack.
24. "Jatu was about as far across as the Court room (about 20 feet) is long, at the time, sitting on a wall. The other two men were further away. I cannot say how far but in the locality. Yes, within fifty feet I should say. I did not notice whether they were sitting or standing. I did not call to them. I motioned to Jatu just before I was struck, not afterwards. There was no time. I could not possibly use my gun as it was with my Shikari, who was, as I have said, about 20 yards away.... It was the second blow that knocked off my topee, and hit my finger. I was only struck twice. Jatu took the third blow. It most certainly was not Padma Charan who tried to save me.... It must have taken about fth hour between the killing of the buck and my final escape. I must have run about 1 1/2 miles before I sighted the other Sahibs.... I protested against the removal of the buck, but Artu prevented me, and held up his stick.
25. "My whole attitude was dictated by my desire not to have a row.
Their attitude was insulting throughout. I never lost my temper from beginning to end. Had I done so there would be a row. I was surprised and genuinely insulted. I have never had any trouble with the local cultivators who have always been" friendly... Jatu certainly did not go into the house. I was struck before he could obey my beckoning. Jatu never wanted to go into the hut. I mentioned him to come to me. He may have stood up. I do not remember Artu calling Out to Jatu not to open the door.
26. Jatu the Shikari deposes, "The Sahib said something to Artu, and Artu hit him with a stick. I could not understand what he said. I do not understand Hindustani. The first stroke was aimed at his head but he, warded it oft with his hand. Artu struck him on his head a second time, and knock (sic) off his topee and hit his left hand, with which he was warding off the blow. Artu then struck at him again on the head, but I rushed in and took the blow here (shows the left forearm). The Sahib then began running away, with the villagers pursuing him, and I falling down at their feet to stop them. (To Court) I did not notice Bulai Inderjit in the crowd pursuing Mr. Brown. I did not see him at all that evening. The other six accused were actually pursuing the Sahib. They were not only present before the attack by Artu but ran after the Sahib. After pursuing a while they stopped and Artu demanded money from me for not pursuing further. I told him to wait and I went up to the Sahib. The Sahib asked me why they were pursuing him. I told him they were demanding money or they would attack him. He said he had no money with him, but I could pay them if I had money. I went back to them, and paid a rupee to one of them. I can't remember to which. They demanded Rs. 5; it was Artu and Bhaji Deohri accused who did so. I told them I had only rupee one, but promised to pay the rest later. Then they went off, and I went to the Sahib. We saw four other Europeans corning on horses.
27. "This accused Bancha Nidhi Paikara is a Chaukidari President.
28. "No; he did not try to assault the Sahib. He was there before the assault. He remonstrated when the Sahib was assaulted, not before. He did not try to stop them from taking the buck. He was not pursuing the Sahib after the assault; no one except I fell at the feet of the pursuers.
29. "Artu is a 'Dhuris' (Panda's (priest's) local tout) who lives close to the place of occurrence. His brother cultivates some land. He has no sarokar with Padma Charan.
30. "This Nathu Barj ana (identifies accused) is a cultivator of the village. He had nothing in his hand. He was present at the assault. He did not help to save the Sahib. He pursued the Sahib.
31. "This Bhaji Deorhi (identifies accused) is another cultivator. He too had nothing in his hand. He did not help to take the deer.
32. "This Bhulai (identifies accused) is another villager. He too had nothing in his hand. I can't say why they demanded the buck, and took it away. It was zabardasti.... fell at people's feet to prevent them from pursuing and hitting the Sahib.... The Sahib did not hit Artu. He pushed Artu and Artu struck him.... After the Sahib had been hit twice I held my hands in front of Artu to entreat him to stop, and received the blow on my arm.
33. "Then the Sahib stood facing the crowd, and stepped back a little for 4 or 5 cubits. I was between him and Artu. Then the Sahib ran, I stopped the crowd at first. Then they changed their mind and began to pursue the Sahib for about half a Pau.
The Sahib passed the other two Shikaris, and took his gun from them, and ran on, they running away in different directions.... The pursuit continued for about a Pau before it stopped finally when I went to the Sahib, some 50 to 200 paces away. I returned to the Sahib after I had paid the money. He had moved about 100 cubits. I did not understand the Sahib's conversation completely.... Artu pushed me in the back. The Sahib pushed Artu in the back.... Neither the Sahib nor I tried to force the door open.... No one tried to pacify Artu during the assault except myself. Chema accused is a Bauri. No high caste Oriya Hindu will touch a Bauri.
34. The Shikari "Bancha Gochait" states, "We stayed about 200 cubits from the Kacheri, but could see what was going on. Jatu went on with the Sahib. I saw Artu strike the Sahib. I saw nothing at all till the, Sahib began to run. There was a golmal, but I did not see who beat the Sahib, and though the Sahib was I know beaten, I was too far off to see who beat him. I looked on from a distance. The Sahib passed close by us as he ran away. We were afraid and ran away. I took the gun. I gave the gun to the Sahib after the crowd had stopped pursuing him. There were seven or eight persons pursuing the Sahib. Artu was pursuing him, and had a bari in the hand. Natbar (identifies accused) was also pursuing him. He had no stick. Bhaji Deohri (identifies accused) was also pursuing him. I can't remember if he had anything in his hand. Chema Bhoi (identifies accused) was also pursuing him. I can't remember whether he had anything in his hand either. There were three or four others with them. Padma Charan (accused) was not pursuing the Sahib. He remained near the Kacheri. The chase went on for about half a Pau, and then stopped. I was not close enough to see or hear what they did when they stopped. The Sahib had lost his topee when he came running past us. Jatu Gochait was with the villagers who were following the Sahib. He was trying to pacify them."
35. The Shikari Kalu deposes, "I saw a fot of people collecting and a golmal. I saw the Sahib hit by Artu who had a stick with a ciirred end. There were a lot of others slimding round. I saw Jatu fall at the feet of the crowd. Did you see Jatu hit? Yes, I saw Jatu hit. That was just afterwards. The Sahib ran after the marpit and passed close to us. He took the gun from Bancha as he passed. But I had the cartridges. I ran too. I saw the villagers pursuing Mr. Brown. I saw Artu, Chema, Bhaji, Bancha (President), (identifies these four accused) I did not go any nearer than where we stayed at first. Bancha Gochait had the Sahib's gun; and I had the cartridges, two packets. The Sahib did not push anybody before Artu struck him. I was afraid to go closer than I was. I saw Jatu receive a blow from Artu's stick. I saw Artu push Jatu before he struck the Sahib. I did not see the Sahib push Artu. I did not hear the Sahib remonstrate or Artu claiming that the buck was his tame buck."
36. Now there was some other evidence as to the whole occurrence but it does not, being of rather a general character, assist very materially in a consideration of the points in this case which are of real importance. One Satyabadi Mahanti, (P.W. No. 6) a lakhirajdar (rent-free landholder) saw, from a distance of about 100 yards, the black buck shot, and all the accused except the President, saw and heard an angry dispute going on, saw Chema and a youth take, at the Tahsildar's orders, the dead buck to the village and then observed Artu hit Mr. Brown two or three times; saw Mr. Brown's topee knocked off and Mr. Brown run away chased by a crowd; but was too far off to hear any of the conversation. Another man, Dinabandhi Swain, a cultivator who was in the last witness' company (P.W. No. 7) tells much the same story: but whilst he says "I heard Padma Charan order him (Artu?) to beat the Sahib and I saw Artu Bautra hit the Sahib twice or four times," the previous witness says "I saw... Artu striking the Sahib with a, stick two or four times, the Tahsildar having ordered him to do so": but both the witnesses were according to their own testimony 200 cubits away and did not go any nearer; so it is rather difficult to understand how they could well have heard any bits of the conversation which was taking place and which was from the evidence of Mr. Brown and Jatu of a noisy and confused character.
37. Mr. Brown was examined by the officiating Civil Surgeon at Puri on the afternoon of December 30th; he had a bruise 1 1/2 x 1/2 on the inner side of his left hand, another 2 1/2 inches in diameter on the middle of his left forearm and a swelling on the ball of his left thumb: all probably caused by a blunt instrument. Jatu, who was examined by the Assistant Surgeon at the Sadar Hospital at Puri on the same day, had a large hard swollen contusion 3 1/2 x 1 1/2 inches on the outer side of his left forearm. It may be, perhaps, here, noted that Mr. Brown deposes in his evidence that when he had returned with his four friends who we're on horseback to, and was in, the village, one of his friends' horses "reared and threw its rider and fell on him;" whether this accident hurt Mr. Brown or not we do not hear but notwithstanding this accident and the blows he had received on his hand and arm he was sufficiently unhurt to be able, when the Tahsildar had been captured and had, during the confusion caused by the rearing of the horse, escaped, to pursue him (the Tahsildar) and, to use his own words, "spring on him and bring him to the ground." So Mr. Brown's injuries were evidently not very serious.
38. Now the main charges framed against all the accused were (a) under Section 147 that they were members of an unlawful assembly of which the common object was by means of criminal force or show of criminal force to compel Mr. Brown to do what he was not legally bound to do, namely, to relinquish a wild buck which he had shot and killed and in prosecution of which common object one of the members of the unlawful assembly, namely, Artu Rautra caused hurt to Mr. Brown ami (b) a similar charge under the joint provisions of Sections 323/149.
39. Artu was also charged separately with causing hurt to Mr. Brown and Jatu under Section 323 and with mischief by knocking off Mr. Brown's solar topee and preventing him from recovering it under Section 426.
40. Artu's case necessitates consideration somewhat different from that requisite to be accorded to those of the other accused: and as the Tahsildar was the first person on the scene after the buck was killed and had put forward a claim of right to the buck on behalf of the Paikpara Estate his (the Tahsildar's) case must obviously be, considered first as whatever could lawfully be done by any of the Other accused could only rest upon the legal correctness of the Tahsildar's attitude in the matter.
41. Although before the District Magistrate the Tahsildar said he would file a written statement he apparently did not do so but at the trial he took up the position and called evidence to substantiate it that he had laid claim to the buck acting on behalf and under the instructions of the proprietors of the Estate of which he was of part the Tahsildar. If he really did claim the carcase on behalf of the Eaj and was within the scope of his authority in doing so he was clearly in the right and Mr. Brown as against him so claiming had no legal right of any kind to retain the buck's carcase: the Tahsildar could, if Mr. Brown refused to hand it over, take it: and persons assisting him to prevent Mr. Brown from removing the carcase would, provided they did not exercise any more force than was necessary, be doing no illegal act but are protected under the provisions of Section 97, Indian Penal Code, and Section 105, Indian Penal Code. It is, therefore, of vital importance to try and ascertain whether the Tahsildar was bona fide claiming the buck on behalf of the Estate.
42. There is no doubt that Mr. Brown did not understand fully what the Tahsildar said: Mr. Brown states that all he gathered was that "the Tahsildar said he (Mr. Brown) had no right to shoot an animal in his garden": at least this is what Mr. Brown wrote in his First Information: or, again, as deposed in his evidence, the Tahsildar asked me "What right I had to shoot a deer in his Bagicha (or Bagan)"; (Mr. Brown is not sure of the word used). But, in cross-examination, Mr. Brown says he understood that the Tahsildar called himself "Tala Bjabu" but did not understand the Tansildar to say that "Tala Babu" had prohibited the shooting of animals in his Zemindari. Something, therefore, was evidently said about "Tala Babu", As a matter of fact "Tala Babu" or more properly "Lala Babu" was the name of the recently deceased master of the Tahsildar. So there waa evidently some misunderstanding here as to what the Tahsildar really did say about the Raj. Then, again, in cross-examination Mr. Brown says: "I never doubted what they "(meaning the Tahsildar and Artu) told me namely that the malik was the Paikpara Estate"; it seems sufficiently clear in my view, therefore, that, though Mr. Brown did not understand it, the Tahsildar was, however, discourteous or "truculent" (as Mr. Brown describes it) his manner may have been, saying something about the Estate and its owner or late owner, and was claiming the carcase, and maintaining that Mr. Brown had no light to shoot on the property or (and as was the case so far as he could have seen) on the edge of this plantation without the Raj's permission.
43. Jatu, the Shikari, who could not understand Hindustani and admits he does not altogether understand what Mr. Brown says to him, but who did understand Oriya does not throw much light on what wan said, particularly as to what passed in Oriya between the Tahsildar and others of his party. The Tahsildar ordered Chema and a boy to take away the buck's carcass; he (the Tahsildar) also asked Mr. Brown "Who had given him permission to shoot"; he (the Tahsildar) objected to Mr. Brown appropriating the carcase but did not give any reason: this was in examination-in-chief. In cross-examination he deposed that the Tahsildar said that "The buck was in his (eaka (jurisdiction): that "the elaka was in Lal Babu's Zemindari and they would not allow Mr. Brown' to appropriate the body." The buck was undoubtedly removed io the Estate Kacheri: poor place though, it may be: its body was put in a hut close by, the Kacheri building being unfinished. Now here again one observes something more than a mere unwarranted and purely personal claim to the animal: one sees an enquiry as to whether there had been permission given to shoot and talk of the Raj and the Raj's rights.
44. The other Shikaris do not assist at all: Bancha simply states that the Tahsildar asked Mr. Brown "Under whose orders he had shot the deer and took away the "deer" and "Why are you killing a buck here". Kalu deposes that the Tahsildar asked "Who Mr. Brown was to shoot deer in this elaka and that they could not allow him to take the deer" and "Why have you killed a buck in my Mama" but did not say that shooting of buck had been prohibited: this witness, however, thought Mr. Brown was talking in English: and says that the Tahsildar was speaking Oriya and volunteers that Mr. Brown did not understand what Tahsildar said.
45. Now at the trial, although the Tahsildar filed no written statement, the line of his defence was that he did claim the buck on behalf of the Raj having received instructions from the Rani to discourage shooting of deer on the Estate. A gentleman (D.W. No. 12) who designates himself as the Household Superintendent of Rani Devendra-vala Dassi, the Rani of Pajkpara, was called as a witness for the defence and he produced a letter Exhibit (4); he lives in Calcutta. It reads as follows: "Dear Sir, On account of the sudden and premature death of the late Raja Manindra Chandra Bahadur all the members of the Raj family) especially the eldest Rani mother, have been overwhelmed with grief. Over and above that, she is very anxious lest there should be mismanagement regarding the Zemindari when the Raja Bahadur is dead. Now I am directed by her to write (to you) that henceforward you shall very carefully perform all work there such as collection etc. You should particularly see that none of your subordinate Tahsildars or Sadar or Muffasil officers ill-treat the tenants and that neither the local tenants nor any outsider kill any harmless creature or animal such as deer etc." This witness stated that this letter was written by him, under the direct orders of the Rani herself, to the Superintendent of the Paikpara Estate at Puri. The Raja died on November 3rd and the Rani had, at the time of the trial, gone on an extended pilgrimage to Benares, Hardwar (both in the United Provinces) and elsewhere in northern India: she left Calcutta about December 14th. An order at the foot of the letter reacting "All the Naibs and Tasildars (i.e. Tahsil-dars) are expected to come to this office before the Xmas holiday. Inform them of the contents of this letter when they come" was in the handwriting of the General Manager of the Estate (who lives at Calcutta), Mr. M.N. Bhattacharjya. The witness deposed that similar instructions had been issued by him to other areas where there is Estate property.
46. The Superintendent of the Paikpara Estate in the Puri District was also called (he was D.W.N.. 10); this gentleman Mr. Tryambak Krishna Mozumdar deposed to the receipt by him on December 12th of the letter written by Mr. A.K. Mukhopadhaya and that he communicated its contents to a clerk who, in the witness presence, told all the six local Tahsildars including the accused Padma Charan Mahanti, its contents and the fact that such communication to the Tahsildar had been made Avas noted by the clerk at the foot of the letter under date 20th December 1992 This witness deposed that his instructions to the Tahsildars were that if any gentlemen went on the estate to shoot they (the Tahsildars) were to request them not to do so: all the accused were tenants of the Estate. Another letter, written on 18th January 1923 (i.e. after the occurence) by the Munshi of the Paikpara Estate at Puri to the General Manager of the Estate at Calcutta was also produced It was Exhibit B and it reads as follows: "Sir The, Criminal case under Sections 379 and 147 brought by Mr. Percy Brown aeainst Padma Charan Mahanti, the Tahsildar of Bhingura and others, was fixed for hearing yesterday. As the Sahib could not appear yesterday, the case has been, fixed for hearing on the 5th of January 1923."
The counter case, which has been instituted on account of the Sahib who was enraged with the Tahsildar Padma Charan Mahanti, who under orders from the Rani prevented the said Sahib from shooting deer, having forcibly caught him (Tahsildar) from the Kacheri house, brought him and tied him with a rope and in that condition sent him to the Police, was also fixed for hearing on the last 17th day of January 1923. As the Sub-Divisional Officer was absent the case has been fixed for tomorrow.
47. "You will kindly let me know the result, if any attempt has been made to amicably settle the case with Mr. Ferey (?) Brown. The Police will accordingly write to the said Sahib so that he may come here on the 24th instant next. If the question of amicable settlement is raised before that date, I shall try to produce the accused persons before him and make them apologise.
48. "The zemindar has been insulted by the wrongful act of Mr. Percy Brown who, by the use of force, caught the Tahsildar and brought him from inside the Kacheri house. It appears that the Sahib has not realised this. However, if the matter is amicably settled both the parties will be "benefited.
49. Yours obediently
50. Nagendra Nath Mukhbrji
51. For Superintendent.
Krishna Babu is to see Mr. Percy Brown and try for amicable settlement.
52. Now if these letters were not fabricated they are of very great importance but the Deputy, Magistrate says with regard to the first that it is not at all satisfactorily proved to be genuine and with regard to the second that it may likewise have been manufactured for the purposes of this case: the Estate was financing the defence. He attaches, therefore, little weight to them and concludes by saying that, even if the letters were genuine, the instructions were not to prohibit but only to discourage the shooting of deer on the property. I am not personally sure that there is very much in any such distinction. The Sessions Judge does not, so far as I can see, refer to these documents so I suppose he must have been content to regard the finding of the District Magistrate as to their being fabricated as substantially correct or that apart from them, the case against the Tahsildar must any how fail. I am not so clearly certain that, under the circumstances, they were mere forgeries.
53. The District Magistrate in his judgment states that the black buck's body was hot claimed by the Tahsildar on behalf of the Estate at all "as his whole conduct and that of Artu Rautra and the rest shows." The Sessions Judge, however, considers that the evidence does not warrant the conclusion that the Tahsildar's claim was a mere pretence or warrant, at any rate, such a conclusion with the certainty which would be required to support his conviction upon a basis of his exercising a purely personal and illegal claim. I am inclined to agree here with the Sessions Judge owing to the fact that Mr. Brown did not understand fully what the Tahsildar said, I do not think it can be stated with certainty that the Tahsildar was not claiming the buck on behalf of his employers. If his instructions were to discourage shooting and he was confronted with the fact that a buck had been in fact, killed almost at his own door I think he would not unnaturally claim the body as the only method of carrying out his orders. But in any case there was clearly talk by him to Mr. Brown about the Estate, absence of Mr. Brown's permission to shoot, his own area of the Estate over which he had control and a claim to the carcase and I cannot think that under those circumstances it can with any certainty bo said that the Tahsildar's claim was purely personal. If, then, there is no satisfactory evidence that the Tahsildar's claim was a personal one, the presumption that it was made on behalf of his employers must be drawn in favour of the Tahsildar; that claim is not illegal and, in consequence, the charge as framed against the Tahsildar of being a member of an unlawful assembly the common (and unlawful) object of which was to compel Mr. Brown to do what he was not legally bound to do, namely, to relinquish a wild black buck which, he had shot and killed) must fail. Nor would there be any thing illegal in the accused Chema removing, under the Tahsildar's instructions, the carcass to the Tahsildar's premises or Kacheri. Nor, however regrettable it may be, is there anything criminal in an uncouth, vulgar or, as Mr. Brown designates it, "truculent" attitude, nor would there be anything criminal in the Tahsildar's co-villagers actively or passively assisting him in carrying out his object of taking possession of the dead animal.
54. One may, then, pass on to the scene at the Kacheri to which the whole party went: there is certainly evidence that Mr. Brown's accompanying the Tahsildar was resented, but that is not surprising, for Mr. Brown was wrongly confident that in law the buck belonged to him and was determined to get it back: and this intention the Tahsildar and the villagers evidently understood and were equally determined to resist: in fact they thought there was going to be trouble, which Mr. Brown did not. Artu's behaviour seems to have been extremely rude even from the earliest stages of the affair. It will, I think, be here convenient to get rid of the case of Bancha Nidhi Paikari, the so-called President. The District Magistrate, whilst convicting him, only does so because he was present and was "one of the jeering crowd", and did not exercise his influence in favour of Mr. Brown until Artu had actually hit Mr. Brown; but as the Sessions Judge points but, there is obviously no sort of case of any kind against the President if the Tahsildar had a right to take the buck. There is in my view no ground whatever for contemplating a reversal of his acquittal by the Sessions Judge and his case needino longer be considered. He may have been discourteous but does not seem to have been guilty of any criminal offence.
55. Now, at the Kacheri, Mr. Brown, who had expected to find some sort of office where he could write out some kind of report but only found a house under construction and a hut into which the deer was thrown, came to the conclusion that he had been deceived and that the place was not a Kacheri: he still, notwithstanding the growing hostility of the crowd and the gestures of his Shikari indicating that he had better leave, was determined to get hold of the carcass and told Artu (who was as Mr. Brown describes him the "protagonist") that he (Artu) had "looted his (Mr. Brown's) Shikar" and that he (Mr. Brown) was "going to go into the house (where the carcass had been put) to get the deer". Mr. Brown in his First Information says that at this juncture "I called Jatu the Shikari and told him to take the deer out of the hut, (I) moving towards the door (of the hut) at the same time". Padam Saran made some remark to Artu Rao-thura and the latter at once flew at me with his lathi". In his evidence Mr. Brown deposes, "I said to Artu that I was going to go into the house to get the deer and I motioned to the Shikari Jatu as I turned towards the hut (where the deer was); Padma made some remark. I could riot understand it, and Artu came at me with his stick.... neither nor my servant(s) went further towards taking the animal out of the building than I ha(d)ve described in my examination-in-chief. I was just turning to go to the door when I was attacked. They told me to clear out; I did not do so, as I had been deprived of my buck... I motioned Jatu j ust before I was struck.... My push with my right arm was in self defence simultaneously with Artu's attack.... he struck at me with his stick.... and I caught the blow on my left hand.... at the same time I struck at him with my right hand.... I was struck before Jatu could obey my beckoning". Jatu, the Shikari, says, "When the deer had been put into the room Artu pushed me away. I moved aside 2 or 3 cubits. The Sahib said something to Artu and Artu hit hint with a stick. I could not understand what he (Mr. Brown) said.... Artu had pushed me away before he hit the Sahib. The Sahib did not hit Artu. He pushed Artu and Artu struck him; Artu pushed me and the Sahib pushed Artu and Artu struck the Sahib". Mr. Brown, in his First Information says, I warded off his first blow aimed at my head with my left hand getting the force on my palm so that my arm dropped numbed but I endeavoured to push him off with my right. It was little more than a flat handed push as the man was a stick length away from me". Artu, in his defence, put forward a story that the buck shot by Mr. Brown was a tame animal belonging to him: but this story was quite exploded and was not credited either by the Magistrate or the Sessions Judge althoug it was vigorously pressed at the trial. Artu, however, denied having hit Mr. Brown but the evidence that he did so is overwhelming. The Sessions Judge criticises Mr. Brown's evidence as to his injuries as, though Mr. Brown spoke of only having received two blowSj one on the right and the other on the left hand, the Medical Officer found three injuries on the left hand only. The Sessions Judge thought that Artu acted in self-defence; that he was provoked by something Mr. Brown said to him; that he did not exceed his right of private, defence but that, even if he did exceed such right, the nine days' imprisonment which he had already undergone was sufficient punishment. I do not find myself in agreement here--with the Sessions Judge. I can see no sort of justification for Artu's attack on Mr. Brown with his lathi: Mr. Brown may have been in the wrong but he was defenceless and was unarmed and Artu's attack was a savage, repeated and unnecessary assault: and his chase of Mr. Brown afterwards shows well its and his rough character. Civility, even under provocation, is a sign of culture and not even of very late culture. Although I do not see how he could be convicted under Section 147 I am of the opinion that he was clearly guilty under Section 323. I consider that his acquittal on this charge was altogether wrong, perverse and mistaken; that he had no sort of excuse to use a lathi; that the appeal against his acquittal on this charge should be allowed and that his conviction by the Magistrate confirmed that he should be convicted of an offence under Section 323, Indian Penal Code, and should undergo six months' rigorous imprisonment. Apparently the Magistrate found him, rightly, guilty of the charge under Section 426: relating to Mr. Brown's topee but no definite finding or conviction under that section and certainly no sentence were recorded against him by the District Magistrate and that charge seems, as the Sessions Judge notes, to have been dropped; nor was it raised before us, so need not be here considered.
56. As for the Tahsildar it is difficult to find any evidence of stisfactory nature which places him at the Kacheri, so far as the charges framed against him in connection, with Section 147 or Section 149 read with 323 of the Indian Penal Code, in any worse legal position than he was when at the spot where the buck was killed. No one can or does say what his remarks to Artu before the assault were: Mr. Brown admits that he does not know and Jatu did not hear it; he had nothing in his hand and took no part in the pursuit. It is true that Mr. Brown says that the Tahsildar was egging Artu on or to use Mr. Brown's words " instigating him to continue his threatening attitude" and that the Tahsildar was insulting; the Shikari Jatu who was on the spot does not say that the Tahsildar urged or ordered Artu to assault Mr. Brown though P.W. No. 6 (who was a long way away) says the Tahsildar did tell Artu to hit Mr. Brown and so does P.W. No. 7 who, however, was also a long way off. But in any case the two charges as framed against the Tahsildar were depedent upon the common object of forcing Mr. Brown to give up the buck, but, as has been pointed out before, that object was not proved to have been illegal in this case.
57. It is conceivable that the Tahsildar might have been charged with abetting Artu in or instigating Artu to assault Mr. Brown, but he was not so charged nor was he called to meet any such charge. However, such considerations are not more than academic as no appeal in his case is before this Court as owing to his having disappeared he has not been served with notice of these proceedings.
58. With regard to the accused Udaya Nath Barjena, his defence was an alibi; but it failed. But the part he took consisted, only, so far as I can gather, (he is not identified by Mr. Brown), in having, as the District Magistrate puts it, been "a member of the jeering crowd" and, when Mr. Brown fled, to have run with the crowd; he had nothing in his hand; but as with the Tahsildar the only charges framed against him depended upon the existence of the common and alleged unlawful object of depriving Mr. Brown of the buck and of those charges he certainly cannot be convicted. As to whether any other charge Could have been maintained against him such as attempting to assault Mr. Brown or abetting Artu in assaulting Mr Brown, I am extremely doubtful. With regard to Ghema Bhoi the same remarks apply as in the case of Udaya Nath Barjena; but he was a servant of the Raj, under the Thasildar's orders and, apparently, in charge of the Polong plantation; he seems to have had a small stick (hot: a lathi but locally called a bari) in his hand; he is said to have run with the crowd when Mr. Brown fled; he, at the Tahsildar's orders, helped to carry the buck to the Kacheri; but his position is perhaps little better, and certainly no worse, than that of Udaya Nath Barjena. Chema put forward a kind of alibi which, however, no one credited.
59. The last accused Bhagi Doohoori is much in the same position as the previous two; his alibi completely broke down and there is no doubt that he ran with the party when Mr. Brown ran; he had nothing in his hand font seems to have demanded greedily money from Jatu if the pursuit of Mr. Brown was called off; but he was not charged with any offence on that score as perhaps he might well have been.
60. Although the whole matter reflects most unfavourably upon the behaviour of all the accused I do not see how, except in the case of Artu, the Sessions Judge could on the evidence on the record have come to any other conclusion (save with regard to Artu) than that he must allow the appellants' appeals and quash the convictions upon the charges as framed upon which they had been found guilty by the District Magistrate. I am not at all sure, however, that these men: or some of them, might not have had maintained against them, success-fuly, other charges but I am certainly not at this date, more than a year after the occurrence, prepared to recommend that any of the persons whose cases are now under consideration before us should now be prosecuted again in respect of other offences or to formulate my view of what offences, if any, they might on the evidence be possibly successfully proceeded against.
61. The result, therefore, will be that the appeals made on behalf of the Crown will be dismissed except, in the case of theacquittal of Artu Rautra under Section 323, Indian Penal Code. That appeal will be allowed; Artu Rautra is convicted under that section and sentenced to undergo six months' rigorous imprisonment from the date when he shall now enter gaol.
62. Adami, J.--I agree.