Patna High Court
Suba Chaudhury And Ors. vs The King on 8 June, 1949
Equivalent citations: AIR1950PAT44
JUDGMENT Narayan, J.
1. This is an appeal by five persons, one of whom has been convicted under Section 302, Penal Code, and the others under Section 326/ 149, Penal Code, in connection with a case of rioting which occurred in the afternoon of 13th April 1948, in village Pataili situated within the jurisdiction of Samastipur Police Station and seven miles from the Police station. Appellant 1, Suba Chaudhury, has been convicted under Section 302, Penal Code, and sentenced to transportation for life, and the remaining appellants have been convicted under Section 326/149, Penal Code, and each of them has been sentenced to undergo rigorous imprisonment for a period of eighteen months. Suba and Babu Narayan have further been convicted under Section 148, Penal Code, and the rest under Section 147, but no separate sentence has been passed under these sections.
2. The prosecution case was that, when Ram Narayan Chaudhury was getting a bhuskar constructed in the compound of his house at about 3 P. M. on 13th April 1948, Suba Chaudhury turned up, and asked him to stop the construction, Ram Narayan refused to stop the construction, and then Suba went away. But Suba came back within a few minutes with a bhala in one hand and a kudal in the other. He placed the bhala on the ground, and began to demolish the nad there with his kudal, and, when Ram Narayan protested, he kept the kudal on the ground, picked up the bhala, and struck Ram Narayan with it on his chest. The remaining accused, who had arrived at the scene of occurrence by that time, assaulted Ram Narayan with lathis. Ram Narayan had fallen on the ground after receiving the bhala injury, and the bhala blade had got stuck up in his chest, Ganga, a son of Ram Narayan, Dhanraj, a co-villager, and Jhapsi, the servant of Ram Narayan, carried Ram Narayan to the dorokha where the blade was pulled out from the chest. On the hulla raised by Ganga and others, several people including one Manog Chaudhury came to the place of occurrence, Manog rebuked these accused persons for what they had done, and one of them struck him with a bhala on the thigh.
3. Ram Narayan was taken to the Samasti-pur Hospital where he was admitted as an indoor patient, and his dying declaration was recorded by a Sub-Deputy Magistrate. The first information report had been recorded by the officer in charge of the Samastipur Police Station on the statement of Ganga Chaudhury made before him at 9-30 P. M. on 13th April 1948. The Sub-Inspector started for the hospital, after recording the first information report; but, before he could reach the hospital, he was informed that Ram Narayan was dead. He then held inquest on the dead body, and sent it for postmortem examination.
4. After the Sub-Inspector had been informed by the Doctor in charge of the Samstipur Hospital that the accused Kirit Narayan Chaudhury, Suba Chaudhury and Siasaran Chaudhury had injuries on their persons and had been admitted as indoor patients, he recorded the statement of Suba Chaudhury, and instituted another first information report on the basis of his statement. He arrested the three injured persons, and deputed a constable to keep guard on them. He went to the spot at 5 A. m. on 14th April 1948, and made an inspection of the place of the occurrence. After completing the investigation, he submitted charge sheet. In the case that had been instituted on the basis of the fard-beyan of Suba Chaudhury, he submitted final report.
5. The post-mortem examination on the body of the deceased was held on 14th April 1948, and, besides a small bruise on the left chest bone, the doctor found one pentrating wound below sternum to the right on the upper abdominal wall going obliquely downward towards the left piercing the diaphragm, liver and finally the pyloric end of the stomach. The doctor found a lot of coagulated blood all round this area. On the same date, the doctor examined Manog Chaudhury and the three accused, namely Kirit Narayan Chaudhury, Suba Chaudhury and Siasaran Chaudhury and found injuries on their persons. On the person of Siasaran Chaudhury, he found as many as nine injuries.
6. When the Sub-Inspector of Police visited the spot, he found blood like marks on the platform of a well and also on the sahan land between the well and the house of Ram Narayan and in the dorokha. The well was six yards west of the house of Ram Narayan, and there was a bhuskar 3 1/2 yards south-west of the well. The Sub-Inspector also found a dismantled nad about 8 years north of the well. He found five holes in the ground round the bhuskar. The condition of things as found by the Sub-Inspector when he visited to the spot lends considerable support to the prosecution case that the occurrence took place near the houses of Suba and the deceased, and that a nad had been demolished.
7. The defence version in this case was that at about 2 P. M. on 13th April 1948, Ganga Chaudhury, the son of the deceased Ram Narayan Chaudhury, was demolishing the nad in the land of Suba Chaudhury, and that, when Suba Chaudhury protested against the demolition of the nad, there was an exchange of hot words between him on the one side and Ganga, Manog Chaudhury, Mahabir Chaudhury, Ram Narayan Chaudhury and Saroj Chaudhury on the other side, and that, after the altercation, Ganga Chaudhury brought a bhala from his house, and struck Suba Chaudhury with it. According to the defence version, Kirit Narayan and Siasaran Chaudhury were assaulted after they had come to the rescue of Suba Chaudhury. This version of the defence is clearly stated in the fard-beyan of Suba Chaudhury on the basis of which the second first information was instituted, But Mr. S.N. Sahay, who argued for these appellants on the first day of hearing, thought that this second first information report was inadmissible in evidence, though he asked us to refer to this document just as we refer to the case diary. As the question whether an information given by a person who subsequently figures as an accused arises very often in criminal trials, we propose to consider this question in this case, and express our views with regard to it. This question was considered by a Division Bench of this Court in Akal Sahu v. Emperor, 26 pat. 49 ; (A. I. R. (35) 1948 Pat. 62 : 48 Cr. L. J. 565) and Das J. with whom Dalziel J. agreed, laid down as follows :
"The statement of a person, who is subsequently accused of an offence, may be admissible in evidence as an admission provided it is not of the nature of a confession and does not come within the excluding sections of the Evidence Act or is not hit by Section 162, Criminal P. C."
Mr. Sahay thinks that this ruling has got no application in this case, because the fard-beyan of Suba Chaudhury, on the basis of which the second first information report was instituted, was recorded after the statement of Ganga Chaudhury, which was the basis of the first information report, had been recorded, though Mr. Sahay also observed during the course of his argument that investigation had not been taken up by the Sub-Inspector before he recorded the fard-beyan of Suba Chaudhury, The fard-beyan of Suba Chaudhury in this case cannot be taken to be a confession for the simple reason that he did not confess to have committed any crime, much less the crime of murder; his statement rather is entirely an exculpatory statement. The only question which has to be seriously considered, therefore, is whether the statement as made in this fard-beyan is hit by Section 162, Criminal P. C. The first paragraph of Section 162, which is relevant for our present purpose, runs as follows :
"No statement made by any person to a police-officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made."
We have to consider what is meant by the words "in the course of." A Division Bench of the Allahabad High Court in Emperor v. Aftab Mohd. Khan. A.I.R. (27) 1940 ALL. 291: (41 Cr. L. J. 647). had to consider what is meant by these words, and their Lordships were of the opinion that the words in the context of Section 162 import that the statement must be made as a step in a pending investigation to be used in that investigation, and that these words do not refer merely to that period of time which elapses between the beginning and the end of the investigation. I respectfully agree with the view taken by their Lordships, and I would quote the following passage from the judgment of Braund J. which, to my mind, makes the position absolutely clear;
"We take the view that the words 'in the course of In the contest of this section import that the statement must be made as a step in a pending investigation to be used in that investigation. We do not think that the words 'in the course of refer merely to that period of time which elapses between the beginning and the end of the investigation. We think that the exact shade of meaning of the words 'in the course of' may well vary according to their context. Obviously, if they themselves qualify a period of time (such as 'in the course of the years') they are used to denote a span of time. If on the other hand, they qualify a continuing process such as 'in the course of the proceedings') they denote, in our view, something more than a mere period of time. It is a dangerous practice to take words from one statute to illustrate the meaning of words in another statute but we nevertheless venture, in order to illustrate our meaning, to point out the words used by Lord Dunedin in Davison & Co. v. M'Rabb or Officer, 1918 A. C. 304 at p.'321 : (87 L. J. P. C.-58) in relation to the words 'in the course of employment' used in the English Workman's Compensation Act, 1906. He says : 'In my view "in the course of employment" is a different thing from "during the period of employment". It connotes to my mind, the idea that the workman or servant is doing something which is part of his service his employer or master . . . ,. ' "
Their Lordships relied on a decision of this Court in Emperor v. Lalji Rai, A. I. R. (23) 1936 Pat. 11 : (36 Cr. L. J. 235). This is a decision of a Division Bench of this Court, and in this case as well the view was taken that, where a report about the commission of an offence is given to the police at two different dates by two different persons, and one is earlier in point of time than the other, the latter report is not a statement made "to a police officer in the course of an investigation but is an independent first information report, and, therefore, can be used in evidence by the prosecution. The point, therefore, seems to be concluded by authority, and there does not appear to be any doubt that the first information report which was instituted on the basis of the statement made by Suba Chaudhury is admissible in evidence. An investigation starts when the first step towards investigation is taken by the police, and in this case it is common ground that investigation had not started when the Sub-Inspector recorded the statement of Suba Chaudhury. It is clear from the evidence of the Sub-Inspector, Mr. Ahsan Imam (p. w. 14), that, before he had taken up the investigation of the case which had been instituted on the basis of the statement of Ganga Chaudhury, he had been informed that Suba, Kirit and Siasaran had been admitted as indoor patients. As soon as he received this information, he recorded the statement of Suba Chaudhury which is the basis of the second first information report. The appellants want to show with the help of this document, that the occurrence took place not in the manner alleged by the prosecution but in an entirely different manner, and that the prosecution party were the aggressors. Certainly, if the nad, which was found dismantled by the Sub-Inspector of police, belonged to the accused, and Ganga Chaudhury was demolishing it, and struck Suba Chaudhury when the latter protested against the demolition, and struck others when they came to the rescue of Suba Chaudhury, the prosecution party would be deemed to be the aggressors. But it is most significant that, in the fard-beyan of Suba Chaudhuary, there is no mention of an attack on Ram Narayan Chaudhury, on whom the injury described above had been inflicted with a bhala--an injury which was bound to prove fatal, and did prove fatal. This is sufficient for discarding the statement made in the fard-beyan of Suba Chaudhury as an untrustworthy statement. Moreover, no evidence was adduced by the accused in support of the allegations made in this fard-beyan of Suba Chaudhury and as such we would not be justified in rejecting the prosecution version unless we find that the evidence adduced by the prosecution in support of it is not fife to be relied on. Mr. Sahay asked us to hold that the accused had acted in the exercise of the right of private defence, even though there is no evidence in support of the statement made in the fard-beyan of Suba Chaudhury, and the learned counsel was of the opinion that the prosecution evidence in this case showed that the accused had acted in self-defence. But there cannot be any manner of doubt that, if the prosecution story is accepted, the attack on Ram Narayan, of which there is no mention in the fard-beyan-of Suba Chaudhury, was absolutely an unprovoked attack, and that his assailant, when he inflicted on him the bhala blow which proved fatal, did not act in the exercise of the right of private defence. The prosecution case has been, and the prosecution witnesses have consistently stated, that, while the bhuskar was being constructed, Suba Chaudhury came, and asked Ram Narayan not to construct the bhuskar there and that, when Ram Narayan refused to stop the construction, Suba came with a kudal and a bhala, and began to demolish the nad. Ram Narayan is said to have been attacked when he protested against the demolition of the nad. It has been argued by the learned counsel for the appellants that there could not be any dispute about the bhuskar, because it was being constructed by Ram Narayan in his own land, and that hence the witnesses cannot be deemed to have given a true account of the occurrence, We are concerned in this case with two plots, namely, plots no. 5150 and 5139. Plot No. 5150 admittedly lies in a tauzi of which Ram Narayan was the sixteen annas proprietor. The defence asked us to hold that the bhuskar was being constructed in plot no. 5150 only, and hence Suba could not object to its construction. In the absence of a scientific measurement, it is very difficult to fix the position of survey plots in homestead lands. But, for purposes of this case, we may assume, as the appellants asked us to assume, that the bhuskar was being constructed only in plot No. 5150. The question is whether this circumstance alone is sufficient to lead us to reject the testimony of the eye-witnesses that, when Suba first came, he objected to the construction of the bhuskar. In my opinion, there is no good ground for rejecting the prosecution case that, when Suba first came to the spot, he objected to the construction of the bhuskar, and, if this part of the prosecution story is accepted, it is Suba who would be in the position of an aggressor. When the Sub. Inspector visited the spot, he did see a bhuskar there, and he also found five holes on the ground round the bhuskar. From the evidence of the witnesses, it appears that, though the construction of the bhuskar was complete, it could not be fixed at the place which had been kept ready foe it, and it would be a legitimate inference that the alight work that had to be done with regard to the bhuskar could not be done because of some obstruction. Thus, the evidence of the prosecution that Suba raised objection to the construction of the bhuskar stands strongly supported by the circumstances and the probabilities. If the trouble had started in the manner alleged by the prosecution, then the defence can not gain much by stressing the fact that the prosecution have not been able to show that the place where the demolished nad stood belonged to them. The demolished nad was in plot No. 5139, regarding which the deceased Ram Narayan had obtained a deed of exchange and a deed of sale from one Ram Jugal Chaudhury who held one-third share in the tauzi in which this plot lies. There is no clear evidence of the fact that plot no. 5139 had been allotted to the patti of Ram Jugal under a regular partition. But it is not improbable that, for convenience of possession, the co sharers might have been in separate possession of specific portions of lands. Certainly, Ram Jugal, the predecessor of Ram Narayan, had an interest in plot No. 5139, the only question being whether he had exclusive possession over this plot. The defence cannot put their case with regard to plot No. 5139 higher than this that both Suba and Ram Jugal as co sharer proprietors had interest in this plot, and, if both had interest in this plot, the next question which arises is to whom the nad which was demolished on the day of occurrence belonged. In my opinion, there is convincing evidence in this case to show that the nad belonged to Ram Narayan. The evidence of the two chaukidars in this connection appears to me to be quite impressive, and it finds support from the evidence of the Sub-Inspector. When the Sub-Inspector visited the spot, he found one nad in a tatti shed adjoining the eastern wall of Suba Chaudhury. The defence cannot contend, and have not contended, that this nad did not belong to Suba Chaudhury and, therefore, it is very improbable that the other nad which was demolished on the day of occurrence would belong to Suba Chaudhury. As the learned Sessions Judge has pointed out, it was never disputed that Suba Chaudhury had only one bullock and a pari, and, for one bullock and one pari, a nad and guar, which also existed on the spot, were quite sufficient. The learned counsel has argued that the demolished nad is very close to the house of Suba Chaudhury. But we find from the sketch map that it is also very near the verandah of the deceased. In view of the fact that there was a nad in a tatti shed adjoining the eastern wall of Suba Chaudhury, I do not think there is any substance in the contention of the accused that the demolished nad was also his property. It may be noted in this connection that the evidence shows that the well in the sahan land there had been sunk by Ram Jugal Chaudhury, the predecessor of Ram Narayan, The defence never seriously challenged the evidence to the effect that this well had been sunk by Ram Jugal Chaudhury, and this fact also lends support to the contention of the prosecution that Ram Jugal was in separate possession of a portion of the sahan land. To Ganga Chaudhury (P.W.l), it was suggested that he was never in possession of more than 9 dhurs of plot No. 5139. If it is admitted that Ram Jugal or Ram Narayan was in separate possession of 9 dhurs of land, then the case of the prosecution that, by virtue of a private arrangement, Ram Jugal was in separate possession of a portion of the sahan land gets established, I am afraid the suggestion that has been made to p. w. l, Ganga Chaudhury, unmistakably goes to show that Ram Jugal and the transferee from him, namely, Ram Narayan, were in separate possession of a portion of plot No. 5139. I have, therefore, no hesitation in rejecting the contention of the appellants that they had acted in the exercise of a right of private defence. The story as told by the prosecution witnesses appears to be quite probable and the evidence with regard to the manner in which the trouble started and with regard to the assault by Suba Chaudhury on the deceased does not appear to be at all auspicious. There was no justification for the attack which was made by Suba Chaudhury on the deceased, and, as already pointed out, it was absolutely an unprovoked attack. Mr. Gopal Prasad, who argued for the appellants on the second day, did not seriously challenge the prosecution evidence that it was Suba who inflicted' on the deceased the injury which proved fatal. He, however, asked us to hold that the offence would be an offence under Section 304, Penal Code, and he further asked us to reduce the sentence. I have already said that the question of the exercise of the right of private defence does not arise minis case, and, in this fact, I do not find any extenuating circumstance so far as the charge under Section 302 against Suba is concerned. It is simply lucky that he has escaped the extreme" penalty of law. The appeal of Suba Chaudhury must, therefore, be dismissed.
8. I agree with the learned counsel that the conviction of the other appellants in this case was not justified. The common object mentioned in the charge is "to assault Ram Narayan Chaudhury". But even in the first information report, it was stated that, after the accused Suba Chaudhury had dealt a bhala blow on the chest of Ram Narayan, the other accused persons arrived there from the court-yard of Suba Chaudhury, and dealt lathi blows on Ram Narayan. The statement in the first information report clearly indicates that the other appellants were not present at the scene of occurrence when Ram Narayan was assaulted by Suba. The prosecution witnesses also appear to have clearly stated in the committing Court that the other accused came to the place of occurrence after Suba had assaulted Ram Narayan. As for example, Ganga himself stated before the committing Court that, after his father fell down as a result of the assault on him by Suba Chaudhury, the other seven accused persons, who were in the court-yard of Suba Chaudhury to help Suba Chaudhary came to the scene it cannot, therefore, be held with certainty that the common object of all these accused persons was to assault Ram Narayan Chaudhury. The charges under Sections 147 and 148 against the other appellants cannot, therefore, be deemed to have been established. They cannot also be convicted under Sections 326/149, when it is not established that their common object was to assault the deceased Ram Narayan Chaudhury.
9. The appeal of Suba Chaudhury is dismissed. The appeal of all the remaining appellants, Siasaran Chaudhury, Rameshwar Chaudhury, Kirit Narayan Chaudhury and Babu Narayan Chaudhury, is allowed, and their convictions and sentences are set aside. These four appellants are acquitted and discharged from the bail.
Ramaswami, J.
I agree.