Patna High Court
Ritbaran Singh And Ors. vs Emperor on 6 October, 1917
Equivalent citations: 46IND. CAS.709, AIR 1918 PATNA 146
JUDGMENT Ali Imam, J.
1. This is an appeal preferred by ten persons who have been convicted and sentenced by the Sessions Judge of Purnea. The learned Judge has also referred the case under Section 374 of the Code of Criminal Procedure. The appeal and the reference have been considered together. One of the appellants Sanphul Singh, who was accused No. 2 in the trial, has during the pendency of the appeal died, and his appeal has thus abated. The other appellants have been convicted and sentenced under the Indian Penal Code as stated below:
Accused No. 1--Ritabaran Singh--under Sections 147, 148 and 302 and has been sentenced to death for the murder of Sajiwan Panday., Accused Nos. 5 and 4.--Bhuti Singh and Garib Rai--under Sections 147 and 325 and have been sentenced to six years' rigorous imprisonment each for rioting and having caused grievous hurt to Ram Swarup and Ram Jug.
Accused No. 8.--Jia Lal--under Sections 147 and 325 and sentenced to six years' rigorous imprisonment for rioting and for causing grievous hurt to Ram Swarup Panday.
Accused No. 3.--Jadu Singh--under Sections 147 and 325 and sentenced to six years' rigorous imprisonment for rioting and having been "one of the assailants of Ram Jug who received grievous hurt."
Accused No. 6--Jugeshwar Singh--under Sections 147 and 325 and sentenced to rigorous imprisonment for five years for rioting and having been "one of the assailants of Ram Jug."
Accused No. 7.--Bhabichand Singh--under Sections 147 and 325 and sentenced to rigorous imprisonment for six years for rioting and having been "one of the assailants who grievously hurt Ram Jug."
Accused Nos. 9 and 10,--Kuni Singh and Peare Dahiar--under Section 147 and sentenced to six months' rigorous imprisonment for rioting. It may also be mentioned that the accused Bhuti, Bhabichand, Garib, Jai Lal and Jadu have also been convicted under Section 326 "for an assault on Sajiwan" resulting in his death, and been sentenced to seven years' rigorous' imprisonment.
2. It is evident on the record that a very serious breach of the peace took place on the 17 th January 1917, at the village Tarauni in the jurisdiction of the Dhandhaha Thana in the district of Purnea. The scene is laid on a piece of land measuring about 36 acres, which was the tenure of one Pandey Manjhi in the Zemindari of Syed Azad Reza of Purnea. The history of this land discloses beyond the shadow of a doubt that it has been for some time a bone of contention between Ritbaran Singh, accused No. 1, on the one side, and Sajiwan, the deceased, Ram Nagina, Ram Jug and Dharam Deo on the other. Indeed it is the struggle for the possession of this land that has culminated in the disturbance of the 17th of January last.
3. The prosecution case is that Sajiwan had an eight-annas undivided share in the land with Ram Nagina, Ram Jug and Dharm Deo who were holding the remaining eight annas. It is alleged that Ritbaran, the principal accused, came to the land at the head of a large mob of 100 or 150 men armed with spears and lathis at about noon, when Sajiwan and his party were peacefully occupied in uprooting and harvesting their Tori (mustard) crop with the help of their labourers on the land in question. It is said that Ritbaran called upon Sajiwan and the labourers to desist from uprooting the crop, that Sajiwan refused to listen to them and that thereupon Ritbaran gave him a spear thrust in his abdominal regions causing the mortal injury to which he succumbed that night. It is also alleged that on intervention Ram Swarup, the brother of Sajiwan, and Ram Jug, the co-sharer, were also severely assaulted. One Nawazi Tiara, labourer of Sajiwan Pandey, was also hit with a spear after he had run away from the field and reached Sukul Darga's house some distance from the place of occurrence One Dukha, also a labourer, received a spear wound when he was running away from the field and was chased. It will thus appear that not less than 5 persons, namely, Sajiwan, Ram Jug, Ram Swarup, Nawazi Tiar and Dukha were wounded on the side of the prosecution. Two men, namely, the accused Bhuti Singh and Bhabichand Singh also sustained injuries, but it is suggested that they did so by accident in the affray.
4. As the charges framed against the accused relate to the injuries on Sajiwan, Ram Swarup and Ram Jug, it will not perhaps be necessary to enter into a detailed examination of circumstances under which the remaining four persons came by their injuries.
5. Ritbaran Singh denies the title and possession of Sajiwan to the land, the subject-matter of dispute, and avers that he was de facto in possession of this land and he claims to have a good title thereto. He also denies his presence at the place of occurrence on the 17th of January and his participation in the riot that took place on that occasion. The accused Jadu Singh, Jugeshwar Singh, Kunni Singh, Peare Dahiar, Garib Rai and Jailal Rai also deny their presence at the occurrence. The two accused Bhuti Singh and Bhabichand Singh allege in their written statements that an unlawful assembly composed of Sajiwan and his supporters wanted to uproot the Tori crop forcibly and were opposed by the servants and ploughmen of Ritbaran Singh, in the course of which these two accused persons received their injuries.
6. It would appear from the above that there was admittedly a fracas between the party of Sajiwan Pandey on the one hand and the party of Ritbaran Singh on the other on the lands forming the subject-matter of dispute on the 17th of January 1917, and that one of these was in possession of the land when the other tried to dispossess him.
7. The case went to trial before the learned Sessions Judge with seven counts, out of which the first, the second and the seventh can be sustained only if the assembly of Ritbaran Singh and his party is proved to have been unlawful. In other words, the common object of the assembly must be proved to come within the mischief of Section 141 of the Indian Penal Code. The common object as set out in the charge was "to beat off the party of Sajiwan Pandey, Ram Jug Dubey, Dharamdeo Singh and others with their labourers from certain lands, loot the Tori crops harvested by them and take forcible and wrongful possession of the land." It is evident from the language of the charge that the common object of the assembly was to dispossess Sajiwan and his supporters of the land in dispute from their alleged lawful possession and that the crowd headed by Ritbaran Singh came to carry out this object. As between the rival claimants the actual factum of possession becomes a vital question for determination. If Sajiwan Pandey was lawfully in possession then he and his supporters were in peaceful occupation of the land, and Ritbaran's assembly of a riotous mob must be held to have had an unlawful common object, viz., to wrongfully dispossess Sajiwan Pandey from the land in question. On the other hand if Sajiwan Pandey was a trespasser and his supporters, though co-sharers of Ritbaran Singh, were actively abetting the trespass by Sajiwan Pandey and Ritbaran and his men in vindication of his right and title coupled with possession advanced to maintain Ritbaran's possession and oppose dispossession by Sajiwan Pandey and his supporters, then the common object of the assembly would not be unlawful. For this proposition there is ample authority which will be referred to later. On the question of fact as to whether Sajiwan Pandey or Ritbaran Singh was in possession of this land, it will be necessary to scrutinize the evidence on the record.
8. The prosecution has adduced oral and documentary evidence in support of its case. The oral evidence is directed to establish that Ritbaran Singh was never in possession of any portion of the land in dispute and that ever since Sajiwan's purchase of the land, which dates back to the 10th of November 1915, the latter has exclusively exercised acts of possession over it, and that even before that Sajiwan's vendor, one Shivanandan, was in undisturbed possession of this land to the extent of eight annas from the 9th of April 1913, when he purchased an eight-annas tenure-holder's share in the same at an auction sale. The prosecution witnesses deny the possession of Ritbaran at any time on any portion of the tenure even prior to the auction sale. The accused Ritbaran has not given any evidence but relies on such evidence as has been brought on the record in the course of the trial by the prosecution and on the strength of which his Counsel urges possession of the land in dispute has been conclusively proved.
9. His Lordship discussed the evidence at great length and in the course of this discussion with regard to a statement made by a person alleged to have been an agent of the accused observed and proceeded to find as follows:
10. The learned Government Advocate has asked us to treat this statement of Rangi as that of an agent binding his principal, the accused Ritbaran. The elementary rule is that before the admission of an agent can be received, the fact of his agency must be established. This is usually done by proving that the agent has acquired credit by acting in that capacity on former occasions and that he has been recognized by the principal in other instances of a similar character to that in question (Roscoe on Evidence). The only evidence on the record on this paint that has been placed before as is that of Kamla Persad, Head Constable. In his examination-in- chief he says--"Rangi Singh was Ritbaran Singh's servant". Nothing has been elicited from him to show how he came to know of the relationship of master and servant existing between Ritbaran and Rangi Singh. Evidently, his acquaintance with Rangi Singh was of short duration. He says in cross-examination--"I saw Rangi Singh for the first time in December 1916. He went with Ritbaran to the Thana; he had no business of his own then." This man's evidence has been challenged in cross-examination and the entry (Exhibit 23) containing the statement of Rangi Singh was put to him as having been concocted in collusion with Sajiwan Pandey. We find nothing in his re-examination to show the source of his knowledge regarding Rangi Singh being a servant of Ritbaran. In a criminal trial if it is intended to bind the master by the statement of the servant, the relationship of master and servant must be strictly proved. It is not sufficient to say that because a man accompanied another to the Thana the former is a servant of the latter. Then again, there is no evidence that Rangi Singh had any authority from Ritbaran Singh to make the statement he did, nor is there anything on the record that there were any other instances of a similar character to that before us when there was recognition by the principal. As regards Exhibit 33, the document does not bear anybody's signature as mentioned before, nor is it proved to have been in the handwriting of the accused Ritbaran. The learned Counsel on behalf of the accused Ritbaran has repudiated Exhibits 32 and 33. The learned Sessions Judge has relied on these documents. For the reason given above, we do not consider they have been properly admitted, but even if they be considered as evidence in the case there is little doubt that up to the 9th of January 1917 the Tori crop was claimed by Ritbaran to have been his. It has been suggested on behalf of the prosecution that Exhibits 32 and 33 go to show that on the 9th of January 1917 Ritbaran had been dispossessed, because Ram Swamp and his men had uprooted and removed a portion of the crop growing on the lands. We are unable to take that view, for the removal of a part of a crop by trespassers cannot be held to be dispossession of the right and lawful owner who had possession of the rest of the crop grown by him and standing on the land. There seems to have been no action taken by the Police after Exhibit 32 was recorded. We do not consider that this inaction was justifiable, when information was lair) of the facts of an unlawful assembly being in existence whose members were uprooting and taking away the crop not grown by them from land not in their possession to the extent of an eight-annas share. The next document to be referred to is Exhibit 5, which purports to be an entry in the station diary of Dhandhaha Thana on the 15th of January 1917, and the entry is in the form of a note of Ram Nagina Dubey's information of an apprehension of a breach of the peace. It runs as follows: "Ram Nagina Dubey, a resident of Tarauni, came to the Thana and reported that a land dispute exists between him and Ritbaran Singh of the same village for two or three years; Sanphul Singh, Jadu Singh, Garib Bai, Bhabichand Singh and others of Chandwa village are coming to the land to put Ritbaran in possession of it, and they are threatening to cause loot, to assault us and to set fire to houses when the opportunity comes. I report this for the future. The information has, therefore, been entered in the diary." This information of Ram Nagina Dubey makes no mention of Sajiwan Pandey and formulates as a case a land dispute existing between him and Ritbaran Singh for two or three years, The whole history of the case does not show that there has been any question between Ritbaran on one side and Ram Nagina with his co-sharers and Ram Jug and Dharamdeo on the other, The last three men are admitted by the defence to be the representatives of Brijpal and their share of eight annas of the tenure has never been questioned. It is, therefore, of no assistance to the prosecution on the question of the alleged possession of the eight annas of the tenure by Sajiwan Pandey. After a very careful consideration of the oral and documentary evidence on record relative to the possession of this eight-annas share of the tenure* in dispute between Ritbaran Singh and Sajiwan Pandey, we are forced to the conclusion that ever since Ritbaran was put in possession by Shiunandan Sahu, who was a benami purchaser for him at the auction-sale, the accused Ritbaran continued in possession and that his possession has never since been disturbed and that the efforts of Sajiwan Pandey and his supporters to oust Ritbaran were infructuous, and that on the 17th of January 1917, when this serious breach of the peace took place and Sajiwan Pandey was mortally wounded, Ritbaran was in actual possession of the tenure in respect of his eight-annas share Our finding, therefore, is that dispossession of Sajiwan Pandey and his supporters was not the object of the supporters of Ritbaran on the day of occurrence On the contrary we find that their presence and such violence as they committed was due to and with the object of resisting the dispossession of Ritbaran, who was in actual and existing occupation and enjoyment of his share of the tenure. In view of this finding the question that arises for consideration is how 'far the charge under Sections 147, 148 and 149, framed by' the learned Judge can be sustained against the accused. The common object as set -oat in the charge has three component parts in it, namely, first, to beat off the party of Sajiwan Pandey, Ram Jug Dubey Dharamdeo Singh and others from certain lands; second--to loot the Tori crops under harvest by them, and third--to take forcible and wrongful possession of the lands. If Ritbaran Singh was in possession and not Sajiwan Pandey, as we have found, the object of the assembly must be held to have been resistance against dispossession of Ritbaran and each of the three component parts set out in the charges must fail, for every one of them as an illegal act rests on the assumption that Sajiwan Pandey and his supporters were in possession * which we are unable to hold.
11. The question then is whether the conviction of the appellants for rioting can stand in the light of the above finding. To sustain a conviction in a case of unlawful assembly the rule is that the common object stated in the charge must agree in essential particulars with the common object established on the evidence. As we find the accused Ritbaran was in possession of the land and not Sajiwan Pandey, we are forced to the conclusion that the common object stated in the charge has not been substantially established [Pachkauri v. Queen-Empress 24 C. 686 : 1 C.W.N. 423. 12 Ind. Dec. (N.S.) 1127, Poresh Nath Sircar v. Emperor 33 C. 295 : 2 C.L.J. 516 : 3 Cr. L.J. 153, Silajit Mahoto v. Emperor 4 Ind. Cas 19 : 36 C. 865 : 13 C.W.N. 801 : 10 Cr. L.J.47 and Fateh Singh v. Emperor 20 Ind. Cas. 140 : 41 C, 43 : 14 Cr. L.J. 380]. In the circumstances charges Nos. 1, 2 and 7 must fail and the conviction and sentence of all the accused thereunder must necessarily be set aside.
12. Having regard to our opinion on the first portion of this case, the further consideration of the facts must be confined to the question of direct and individual culpability as distinguished from constructive guilt. Before proceeding to deal with this question in detail we desire to consider a suggestion that was put forward by the learned Government Advocate. He asks us to apply Section 34 of the Indian Penal Code to the facts of this case. We have examined the question from his point of view but on the facts and circumstances of the case we are unable to agree with the suggestion put forward by the learned Government Advocate. The language of Section 34 is far more restrictive than that of Section 149, and the Legislature clearly intended to narrow down the scope of Section 34. To establish guilt under that section, it is necessary to prove a common intention and it must be shown that the criminal act was committed in furtherance of that intention. On the evidence it is difficult to hold that among the assailants of Sajiwan there was a common intention to kill him, or cause grievous hurt to him: so also as regards the assailants of Ram Swarup and Ram Jug. On the evidence there can be no doubt that there was use of force generally and promiscuous blows were given. This negatives the theory that the assault on any particular man was induced and carried out by a preconcerted design to deal with him in a particular way. For the application of Section 34 it must be shown that there was a common intention as distinguished from a common object. The rulings quoted by the learned Judge for constructive guilt reported as Emperor v. Ram Newaz 21 Ind. Cas. 663 : 14 Cr. L.J. 615 : 35 A. 506 : 11 A.L.J. 804, Hanuman v. Emperor 21 Ind. Cas. 1005 : 35 A. 560 : 14 Cr. L.J. 685 : 11 A.L.J.826 and Gouridas Namasudra v. Emperor 2 Ind Cas. 841 : 36 C 659 : 13 C.W.N. 680 : 10 Cr. L.J.186 are distinguishable and the facts and circumstances to which they apply are different from those of the present case. We are, therefore, of opinion that the case before us is not one which falls within the meaning of Section 34 of the Indian Penal Code.
13. We now proceed to deal with the case of each individual accused and start with the case of the principal accused Ritbaran Singh who has been convicted under Section 302 of the Indian Penal Code and sentenced to death. In order to do this it is necessary to state what the prosecution case is against this accused. He is said to have organised the riot on the 17th January; to have come to the place of occurrence armed with a spear at the head of a mob, to have ordered the assault and to have given the fatal below to Sajiwan Pandey.
14. His Lordship then proceeded to discuss the evidence regarding the presence and participation of Ritbaran Singh in the riot and proceeded: ]
15. All that the above witnesses prove is that on Wednesday morning they saw four carts crossing the ghat at Kuari with men and Ritbaran was amongst them. All these witnesses were found by Gora Chand Das, Sub-Inspector, on the 28th or the 29th of January. Kauri Ghat is a much frequented ferry and the evidence of these witnesses does not prove more than Ritbaran having been found crossing the ghat in company of some of the accused and others on the morning of Wednesday. This is no doubt some evidence of preparation, but it cannot be taken as a proof of the presence of this accused at the occurrence.
16. There is one more point that must be considered relative to the question of Ritbaran's presence at the occurrence and his inflicting the fatal injury on Sajiwan Pandey. The learned Government Advocate has drawn our attention to the conduct of the accused Ritbaran at the time of his arrest and has asked us to draw from it an inference of his guilt. It appears from the evidence of Jang Bahadur, dafadar, that on some information received by him he discovered Ritbaran and put some questions to him. The accused then gave him a false name and a false residence, on which the dafadar arrested him. There can be no question that the conduct of the accused in giving a false name and a false residence indicates his desire to evade arrest by the Police. The learned Government Advocate argues that this conduct on the part of Ritbaran is evidence of his guilty mind. On the other hand the defence urges upon us the consideration that the motive in giving a false name and residence might be the desire to escape harassment at the hands of the Police. * It is impossible for us on the evidence to say what the motive was but the evasion of arrest by itself may give ground for suspicion and may be regarded as some evidence of guilty intent, lutthat alone is not sufficient and conclusive in the absence of reliable evidence for the purpose of conviction. Such conduct is not a part of the res gestse of the criminal act with which the accused is charged. We may mention that in appreciating the evidence adduced on behalf of the prosecution with reference to the accused Ritbaran we have not overlooked the value of the evidence of conduct as to preparation and as to evasion of arrest.
17. On a very careful consideration of the whole body of evidence produced on behalf of the prosecution with reference to the presence of the accused Ritbaran Singh at the occurrence and his inflicting the fatal injury, we are unable to hold that there is satisfactory and reliable evidence on the record to establish his presence at the place of occurrence and that he took part in the assault on Sajiwan Pandey, Ram Jug Dubey, Ram Swarup Dubey or any of their companions. We feel no doubt in our mind that Ritbaran Singh organized the breach of the peace that took place at Tarauni on the 17th of January and that the disturbance was in his interest; at the same time we equally feel no hesitation in holding that he kept away from the fight and left it to his relations and friends to resist the carrying away of his crops-by Sajiwan Pandey and his supporters. On the evidence we hold that the omission, to mention accused Ritbaran's name as a member of the mob by Banwari at the Thana and by Ram Jug and Nawazi before the Sub- Divisional Officer, Mr. Sarkar, was due to the fact that the man was not at the place of occurrence, and that probably the private prosecutors did not implicate him at those stages for fear of his being able to prove a successful alibi, but that when it was discovered by Ram Nagina on the night following the occurrence that Ritbaran could not produce any such alibi he and Ram Swarup were tempted to introduce his name and did so in their statements Exhibits 4 and 1 before Mr. Sarkar, which we hold was an invention. The general evidence of the assault by and the presence of Ritbaran is untrustworthy, unreliable and not by any means sufficient to justify his conviction. We hold that the opinion of the assessors in this case that Ritbaran was not present at the time of occurrence is correct upon a proper appreciation of the evidence.
18. We, therefore, set aside the conviction of Ritbaran Singh under Sections 147, 148 and 302 of the Indian Penal Code and consequently we also set aside the sentence of death passed upon him by the learned Judge and direct his release.
19. We have held above the conviction of rioting under Section 147 of the Indian Penal Code cannot be sustained because of the failure to substantiate in material particulars the common object of the assembly as set out in the charge sheet, and, therefore, we set aside the conviction and sentence passed upon Kunni Singh and Peare Dahiar by the learned Sessions Judge under that section of the Indian Penal Code, and we accordingly order their release.
20. For the same reasons the conviction of the remaining accused Jadu Singh, Garib Rai, Bhuti Singh, Jugeshwar Singh, Bhabichand Singh and Jialal under Section 147 of the Indian Penal Code must also fail, and we set the same accordingly aside. But with reference to the other charges against them the case stands on quite a different footing. We will take the case of these accused separately with reference to these charges.
21. [His Lordship then discussed the case of each accused as to the individual acts against them and convicted and sentenced them for such acts where proved by evidence, and proceeded: ]
22. Mr. Hasan Imam in the course of his able argument made a very grave attack on the attitude and conduct of the District Superintendent Feilman as to the manner and the method in which he gave his evidence before the Sessions Judge. We think the attack made on Mr. Feilman was unwarranted by the facts and we fail to see any ground for the suggestion that he acted otherwise than in accordance with his duty, and that fairly and honestly. No doubt in Mr. Feilman's evidence as recorded certain illegalities appear as to certain facts which were brought out in evidence and which were not in point of law admissible in evidence against the accused. But Mr. Feilman was not responsible for these irregularities. The fault was certainly due to the manner and the method adopted by the legal gentlemen representing the Crown in the lower Court as to the examination of these witnesses; and the form in which questions were allowed to be put to him was illegal and wrong. The examination of Mr. Feilman in chief bristles with irrelevancies and the admission of facts in evidence which were inadmissible. But the learned Judge should have controlled the examination-in-chief and required only legal questions to be put in a legal way. How ever, Mr. Feilman does not deserve censure or blame for what, after all, is not his fault. The line adopted by the Crown Prosecutor in his examination-in-chief of Mr. Feilman leaves much to be desired in the interests of justice, showing disregard of the requirements of law. The learned Sessions Judge, we think, should have required the prosecution to adopt a more correct and proper attitude in the examination of witnesses generally and Mr. Feilman in particular and having said this, we think that the learned Sessions Judge will on future occasions act with prudence and take care to see that the evidence is legally adduced and legally given.