Das, J.:— The nine appellants have been convicted and sentenced by the learned Additional Sessions Judge of Bhagalpur in the manner stated below. Two of the appellants, Ganu Gope and Sidhu Gope, have been found guilty of the offence of murdering one Mahendra Singh: they have been sentenced to death for this offence, which sentence is the subject of a reference under section 374, Code of Criminal Procedure. They have also been found guilty under section 148, Penal Code, and sentenced to rigorous imprisonment for two years. They have further been found guilty under section 302 read with section 149, Penal Code, and sentenced to transportation for life. Ganu Gope has also been found guilty under section 324, Penal Code, but no separate sentence has been passed against him under that section. Of the remaining appellants, all except two, namely Sipchu Gope and Hublal Singh, have been found guilty under section 148, Penal Code, and sentenced to two years' rigorous imprisonment: the latter two have been found guilty under section 147, Penal Code, and sentenced to 18 month's rigorous imprisonment each. These seven appellants have also been found guilty under section 302 read with section 149, Penal Code, and sentenced to transportation for life. One of them, namely, Mangal Gope, alias Mangru Gope, has been further convicted under section 324, Penal Code, but no separate sentence has been passed under that section. It has been directed by the learned Sessions Judge that the sentence of transportation will run concurrently with the substantive sentences of imprisonment passed by him for the offences under sections 148 and 147, Penal Code. Therefore, the important sentences are—(1) the sentence of death under section 302, Penal Code, on Ganu Gope and Sidhu Gope, and (2) the sentence, of transportation for life against all the appellants under section 302 read with section 149 Penal Code.
The occurrence which resulted in the present case against the appellants took place on the 29th of March, 1944, at about 8 a.m in a village called Mirachak in Chak Chakhandi Baihar, within the jurisdiction of the Muffasil Police Station of Bhagalpur. The place is about 5 miles from the police-station. There are about 50 bighas of bakasht land in the village, comprised in two plots, one plot consisting of about 40 bighas and the other of about 10 bighas. Originally, the village belonged to one Premlal Pande. He mortgaged this village along with other villages in favour of the father of Babu Bijoy Krishna Banerji (P.W 17). I may note here that Babu Bijoy Krishna Banerji is a Pleader of Bhagalpur. His father brought a suit to enforce the mortgage in 1927. A decree was obtained and put in execution. During the pendency of the execution proceeding the father died, and Babu Bijoy Krishna Banerji and his elder brother were substituted in place of their father. The mortgaged properties, including the village in question, were sold in execution of the decree and were purchased by Babu Bijoy Krishna Banerji and his brother. Then delivery of possession was obtained in 1931. Babu Bijoy Krishna Banerji stated that after delivery of possession in 1931 he cultivated the bakasht lands, but at the time of harvesting trouble was raised on behalf of Sarda Pande (one of the accused persons acquitted by the learned Sessions Judge), Hublal Singh and others. There were proceedings under section 144 of the Code of Criminal Procedure and section 69 of the Bihar Tenancy Act. These proceedings were decided against Babu Bijoy Krishna Banerji and his brother. In 1932 Babu Bijoy Krishna Banerji and his brother filed a title suit in respect of the bakasht lands of the village. The title suit was against two sets of defendants, Sarda Pande being one set and Hublal and others being the second set. This suit was decreed in favour of Babu Bijoy Krishna Banerji and his brother. They again obtained delivery of possession in 1935. The prosecution case is that after this delivery of possession in 1935 Babu Bijoy Krishna Banerji gave 40 bighas of land to one Narsingh Singh to cultivate on the batai system, and kept about 10 bighas in khas cultivation. This arrangement, continued peacefully till 1943. In September 1943 the Goalas of village Khutaha damaged the arhar crop grown by Narsingh. It may be mentioned here that the Goalas accused in this case, such as, Ganu Gope, Sidhu Gope and others, are all residents of village Khutaha. As a result of the trouble created by the Goalas of Khutaha, there were again proceedings under section 144, Code of Criminal Procedure, which were, however, subsequently dropped. The paddy crop of the year 1943-1944 was looted away by the Goalas and a proceeding under section 107, Code of Criminal Procedure, was drawn up against the parties. Two of the accused persons had also filed applications under section 69 of the Bihar Tenancy Act. It appears that on about 8 or 10 bighas of the land given to Narsingh Singh, the arhar crop was standing. This crop was attached by the Sub-divisional Officer in connection with the proceeding under section 69 of the Bihar Tenancy Act. There has been some dispute before us as to whether the attachment subsisted in fact or law, on the date the occurrence took place. On the day in question, that is, the 29th March, 1944, Narsingh Singh (who is a resident of the neighbouring village of Baijani) learnt from his cowherd Jageshwar Mandai (P.W 21) that the Goalas of Khutaha were cutting the arhar crop. The deceased Mahendra Singh was a peon of Babu Bijoy Krishna Banerji, appointed only a few months before the present occurrence. Mahendra Singh was a resident of Patna district, and was described by witnesses as a khalifa (wrestler). He was staying at the time of the occurrence in the house of Narsingh Singh. On hearing about the harvesting of the crop by the Goalas of Khutaha, Narsingh Singh sent information to Mahendra Singh. Mahendra came with three other persons, Meda. Singh, Balik Singh and Jharu Singh. Meda and Balik are brothers of Narsingh. Jharu is their sister's son. Goda Singh, another brother of Narsingh Singh, also came there, and these persons, along with two others who joined them on the way, Avent towards the arhar khet. The arhar khet is across a small rivulet known as Jogia river. The field is across the rivulet towards the east. The prosecution case is that Mahendra Singh and his companions saw about 125 men variously armed: out of these men about 50 or 60 were standing on the eastern bank of the rivulet and the rest were cutting the arhar crop. The distance of the field from the eastern edge of the rivulet would be about 50 yards. From the western side of the rivulet Mahendra Singh enquired of the men standing on the eastern bank of the rivulet as to why they were cutting the arhar crop which had been attached. On this two of the accused persons, Sarda Pande and Hublal Singh, are stated to have given an order for assault. The mob standing on the eastern bank then ran towards Mahendra Singh and his companions. It may be noted that the bed of the rivulet was then dry and there was no difficulty in running across it. It is stated that two of the accused persons, Ganu, Gope and Sidhu Gope, pierced their bhalas into, the abdomen of Mahendra Singh. The intestines came out and Mahendra Singh fell down. Others of the mob then heat Mahendra Singh with various weapons. Meda and Balik ran to protect Mahendra: they were also assaulted by the members of the mob. The mob, when running towards Mahendra and his companions, also threw brickbats at them. Finding that their life was in danger, Narsingh Singh and his other companions ran away. Narsingh got a tamtam, and accompanied by Meda and Jharu he went to the police-station which he reached at about 10-30 a.m He gave an information at the police-station which is exhibit 1 in the record. The information was given within about 2½ hours of the occurrence. Balik Singh who also ran away but did not go to the thana, got up on a gular tree. He saw that the mob tied a gamcha round the abdomen of Mahendra and they carried Mahendra towards the east. The Sub-Inspector arrived at the place at about 12-30 p.m He saw the arhar field and found the cut plants lying on the ground. The body of Mahendra Singh was not found at the place where Mahendra Singh had fallen after the assault on him. There was, however, a trail of blood towards the east. The Sub-Inspector of Police followed up the trail of blood, made certain enquiries and found a dead-body in Katoria river, half submerged in water of the depth of about one cubit. This Katofia river is about 5 to 6 miles from Jogia rivulet. The dead-body had no head and the body was partly scorched. The right leg was missing and the intestines were protruding from the abdomen. The prosecution case is that this was the dead-body of Mahendra Singh which the members of the mob had brought from near the Jogia river. They had severed the head and had tried to burn the dead-body. The quick arrival of the Sub-Inspector, however, prevented them from completely burning the dead-body. The Sub-Inspector held an inquest over the dead-body and sent it to the Civil Surgeon of Bhagalpur for post mortem examination. I shall subsequently refer to this post mortem examination. The Sub-Inspector searched for the accused persons, but none of them were found in the village. The above is the prosecution story in brief.
The defence of the accused persons is of the following nature. Two of the accused persons, Ganu Gope and Sidhu Gope, who have been sentenced to death raised the plea of alibi. It is stated that they were at a place called Basukinath in the district of the Santal Parganas from the 28th of March, 1944. Ganu was ill of malaria there, and Sidhu was attending on him. Apart from the plea of alibi, it has also been contended on behalf of those two accused persons that the prosecution case is not true in material particulars; and even if there had been an assault on Mahendra Singh, the circumstances in which that assault was, made would give the accused persons a right of private defence. On behalf of the other accused persons it has been contended that the land was settled with them by Babu Bijoy Krishna Banerji on the bhaoli system and was in their possession. Babu Bijoy Krishna Banerji tried to oust them from possession for fear of their getting an occupancy right in the land, and also on account of a dispute over the share of the produce: it is stated that Babu Bijoy Krishna Banerji wanted half share in the produce whereas he was entitled to only 18 seers in the maund. It has been contended on behalf of these accused persons that they did not form an unlawful assembly with the common objects mentioned in the charge; on the contrary, Mahendra Singh and his companions formed an unlawful assembly and wanted to oust the Goalas of Khutaha from possession of the land. It was also contended on behalf of these accused persons that the prosecution case was false in material particulars and that they had been falsely implicated. On behalf of Hublal Singh, whose case was separately argued, the main contention raised is that he was not a member of the mob and has been falsely implicated. I may note that we have been separately addressed on behalf of three sets of appellants—Ganu Gope and Sidhu Gope being one set, Hublal another set and the remaining appellants being the third set. Besides the special pleas raised on behalf of the three sets of appellants, the common defence has been that the prosecution case is false in material particulars and the accused persons have been falsely implicated. We have also been addressed on the individual case of each one of the appellants.
It would be advisable, before discussing the evidence in the case, to say a few words about the charges under sections 147, 148 and 149, Penal Code. Two common objects have been mentioned in the charges under these sections, one being to loot the crops on the land of Narsingh Singh and Bijoy Babu, and the other being to assault Mahendra Singh, Meda Singh and Balik Singh. Some, of the arguments raised on behalf of the appellants relate to the common objects mentioned above. I have, therefore, thought it necessary to refer to these common objects at the very outset.
The learned Additional Sessions Judge in agreement with the opinion of the assessors has found that Narsingh Singh was the bataidar in possession in respect of the land in dispute. He has further found that the prosecution case of rioting and assault is substantially true. He has negatived the pleas of alibi and the right of private defence. He has then considered the case of each individual accused person and has acquitted those of the accused persons regarding whose presence in the mob or complicity in the assault there was some doubt.
It would be convenient to take up first the case of the two accused persons, Ganu Gope and Sidhu Gope, who have been sentenced to death. The main points raised on behalf of these two accused persons are—(1), the prosecution case is not true in material particulars, (2) the identity of the dead-body has not been established, (3) their plea of alibi should be accepted, (4) they are protected by the right of private defence, and (5) that in any case, they cannot be found guilty under section 302, Penal Code. I shall take up these points one by one. The prosecution case mainly rests on the testimony of the following witnesses. First of all, there are the four brothers, Narsingh Singh (P.W 1), Meda Singh (P.W 2), Balik Singh (P.W 3) and Goda Singh (P.W 4). Then there is Jharu Singh (P.W 14), who is the son of their sister. These five witnesses, are clearly related to one another. Besides these relations, the independent witnesses are, Kuldip Singh (P.W 7), Naurangi Singh (P.W 13) and Inder Mandai (P.W 20). As far as Kuldip Singh (P.W 7) is concerned the learned Sessions Judge has not relied on his evidence for a very good reason. It appears that before the investigating police officer the statement of this witness was that he had not seen the occurrence but had heard about it. The witness no doubt denied this in the Court of Session. But in view of his previous statement he is clearly an unreliable witness. As to Naurangi Singh (P.W 13), the comment is that he is a partisan witness. He admits having deposed for Narsingh in a previous cattle grazing case. He also admits that he was an accused alone with Narsingh Singh in a case under section 188, Penal Code. As to Inder Mandai (P.W 20), the comment is that his name is not mentioned in the first information and that he is also a partisan witness. This witness also admits that he was examined for Bijoy Babu in the grazing case and in the case under section 107, Code of Criminal Procedure. The evidence of this witness is not of any great importance inasmuch as he says that he did not notice the assailants of Mahendra. It further appears from the evidence of the investigating police officer (P.W 22) that this witness Inder Mandai had not named Ganu Gope in the mob. Leaving aside Inder Mandai and Kuldip Singh, we are left with the evidence of the four brothers, their sister's son and Naurangi Singh (P.W 13). It must, I think, be conceded that the prosecution witnesses are related to one another, and Naurangi Singh (P.W 13) had previously deposed for Narsingh in the grazing case and was an accused with Narsingh in a case under section 188, Penal Code. The question is whether the evidence of these witnesses should be discarded on this ground. I am unable to agree with the contention that the evidence of these witnesses should be disbelieved on the ground that they are related to one another, or on the ground that Naurangi Singh is interested in the prosecution party. Babu Bijoy Krishna Banerji is a resident of Bhagalpur, who had purchased the village in execution of his decree. Since his purchase a great deal of trouble has been raised on behalf of different persons claiming the lands to have been settled on the naqdi or batai system by the previous landlord. One of such persons was Sarda Pande, a resident of village Baijani, another was Hublal Singh, another resident of village Baijani. Sarda Pande is related to the previous landlord and obviously has some influence in the village. The Goalas of Khutaha now claim the lands to be their batai lands. In such circumstances, paucity of evidence from independent sources is not a sufficient ground for disbelieving the testimony of the four brothers their sister's son and Naurangi Singh. The evidence of Naurangi Singh has been seriously criticised before us on the ground that he pleads ignorance of the proceeding under section 107, Code of Criminal Procedure. It is true that Narsingh Singh has falsely pleaded ignorance of such a proceeding. Our attention has also been drawn to the fact that the investigating police officer (P.W 22) has admitted that Narsingh and one of his brothers are under police surveillance, though Narsingh denies that he is under such surveillance. The nature of the surveillance is, however, not known, and the mere fact that Narsingh is under police surveillance is no sufficient ground for disbelieving his testimony. There are two important particulars in respect of which the story given by the aforesaid prosecution witnesses is somewhat different from the story as set out in the first information. The prosecution witnesses have said that two of the accused persons, Sarda Pande and Hublal Singh, gave the order for the assault. This part of the story is not mentioned in the first information. Sarda Pande has already been acquitted by the learned Sessions Judge, and the omission of this part of the story in the first information, so far as it affects Hublal, will be considered when I take up the case of Hublal Singh. The other important point on which there is a difference between the first information and the story set out in court is about the two accused persons, Ganu Gope and Sidhu Gope. These two accused persons are stated to have run straight on Manendra and pierced their bhalas in the abdomen of Mahendra. The first information does not, however, present the story in exactly the same way. In the first information the names of 13 accused persons are mentioned, including Sidhu Gope and Ganu Gope, and then it is stated that they began to strike with lathi, bhala and pharsa. The first information does not state that Ganu and Sidhu ran straight on Mahendra and pierced their bhalas into the abdomen of Mahendra. I think the benefit of this omission should go to the two accused persons Sidhu Gope and Ganu Gope. This will affect the charge under section 302, Penal Code, and I shall presently discuss this aspect of the matter. The question now is if the difference in the story as set out in the first information and the story as given in court would lead one to reject the entire prosecution case as false. In my opinion, the answer to this question must be in the negative. The first information appears to be a general statement of what happened. Substantially, the occurrence as given in the first information is the same as testified to by the witnesses examined on behalf of the prosecution. The difference in particulars is not such as to lead one to the conclusion that the prosecution has given an entirely false version of the occurrence. The prosecution witnesses have all stated that there was a mob of about 100-125 persons, some of whom were harvesting the crop and some were standing on the eastern bank of the Jogia river. They were all variously armed with dangerous weapons. As soon as Mahendra and his companions came near the Jogia river and Mahendra protested against the harvesting of the crop, the members of the mob on the bank of the river ran towards Mahendra and his companions and an attack was made on Mahendra. Meda and Balik, who tried to help Mahendra, were also assaulted. Substantially, this is the prosecution case as set out in the first information and as testified to by the witnesses examined in court. No such serious discrepancies have been pointed out as would lead one to think that the prosecution case was not substantially true.
Coming now to the question of the right of private defence, one of the points for consideration is the possession of the land in dispute. There has been a good deal of oral evidence on this point, and the evidence of Babu Bijoy Krishna Banerji (P.W 17) has been seriously criticised before us. It is admitted by both parties that Babu Bijoy Krishna Banerji is entitled to receive the rent for the land in dispute. The main dispute is as to who the bataidar is. Narsingh Singh claims to be the bataidar, who is supported by Babu Bijoy Krishna Banerji. The Goalas of Khutaha, on the contrary, content that they are the bataidar whom Babu Bijoy Krishna Banerji wishes to oust. In the view which I have taken of the occurrence in this case, it is unnecessary to decide the question of possession. There can be no doubt that Mahendra was assaulted before he had even crossed the Jogia river. The place where Mahendra was assaulted as testified to by the witnesses would appear from the sketch map (exhibit 3) prepared by the Sub-Inspector of Police. The evidence is that the arhar field on which the crop was being harvested was at a distance of 50 yards from the eastern bank of the river. Mahendra was still on the western bank when he protested against the cutting of the arhar crop. Such a protest did not amount to an invasion of the property of the accused persons, even if it is assumed that the Goalas of Khutaha were in possession of the land in dispute. Neither, in my opinion, is there right of private defence of body in the circumstances in which the assault was made on Mahendra Singh. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. No such circumstances have been clearly established as would lead us too think that there was any apprehension of danger to the body, not to speak of grievous hurt, to the accused persons or the members on their side, so as to give, rise to a right of private defence to them. Learned counsel for the appellants had drawn our attention to the following circumstances: Mahendra Singh was a khalifa. (wrestler) brought from the Patna district; Narsingh and one of his brothers were under police surveillance; the evidence of Meda Singh (P.W 2) shows that he had a lathi and others of his party had dantas; the statement of Jharu Singh to the Sub-Inspector of Police was to the effect that Mahendra asked his companions to go forward and not to run away. On these circumstances it has been contended before us that Mahendra and his companions came prepared to commit an attack, and, therefore, the accused persons had the right of private defence. I have given my best consideration to the circumstances mentioned above, which have been brought out in the cross-examination of some of the prosecution witnesses. I am unable to accept the contention that those circumstances show that Mahendra Singh was about to make an attack on the accused persons so as to give them a right of private defence of body. It was suggested to one of the witnesses that Mahendra. Singh was brandishing his lathi. This suggestion was denied by the witness. Mahendra Singh was more than 25 feet or 22 steps away from the mob on the other side of the river. From that distance Mahendra Singh was not in a position to make any attack on the mob on the other side. It was the mob on the other side of the river which attacked Mahendra Singh first. In such circumstances, I am unable to accept the contention raised on behalf of the accused persons that they are protected by the right of private defence of body. The learned Standing Counsel for the Crown has rightly referred to section 105 of the Evidence Act, which lays down that the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code is upon the accused person, and the Court shall presume the absence of such circumstances. I am, therefore, of the view that in this case it is unnecessary to consider the question between the two rival sets of bataidars—Narsingh Singh on the one side and the Goalas of Khutaha on the other. Whoever be the real bataidar, the circumstances in which the attack was made on Mahendra Singh do not give the accused persons any right of private defence either of property or of body. The evidence of Babu Bijoy Krishna Banerji was criticised before us because he had not filed his account papers. It was also brought to our notice that Narsingh said that he was informed by Jageshwar Mandai about the harvesting of the crop. Jageshwar was not, however, examined before the investigating police officer, and the witnesses did not state before the investigating police officer that Jageshwar had given the information about the harvesting. It was, therefore, argued that Mahendra and his companions could not have gone in the innocent manner stated by them; they must have gone armed with weapons to prevent the Goalas of Khutaha from harvesting the crop. It is worthy of mention in this connection that none of the accused persons had received any injuries. If Mahendra was a trained lathial, as has been argued before us, and if he had gone armed to teach the other party a lesson, one would expect that he and his companions would be able to inflict at least some injuries on some of the accused persons. The absence of any injuries on the side of the accused persons, and the fact that the accused persons were even able to take the body of Mahendra away after the assault, show that an attack was first made on Mahendra Singh and that Mahendra and his companions were overwhelmed by the much larger numbers on the other side. There is nothing to show that Mahendra attempted any attack or made any attack on the accused persons so as to give them the right of private defence. Some defence witnesses were examined in the case. None of them, however, said anything about the occurrence itself.
Then there is another aspect of the matter from which this question may be considered. The prosecution witnesses have said that the arhar crop was under attachment when the occurrence took place. Our attention has been drawn to the ordersheet of the case under section 69, Bihar Tenancy Act. This ordersheet is exhibit II and will be found at pages 91-92 of the paper book. The ordersheet shows that on the 20th January, 1944, the Sub-divisional Officer had passed an order of attachment and had asked the Nazir to depute a peon to watch the crop on payment of cost of the peon by the applicant. On the 3rd February, 1944, an order was passed asking the peon to cut the crop in presence of parties and remove the same to a public place by the 28th February, 1944. By that date, however, the crop had not been cut, and the Sub-divisional Officer directed the Nazir to go and have the crop cut and divided. Then, on the 16th March, 1944, the learned Sub-divisional Officer found that no relationship of landlord and tenant had been proved, and he ordered that the case be struck off. He further directed that the tenant's share of the produce would be sold and sale proceeds deposited in the Treasury. There has been some controversy before us as to the interpretation to be put upon the last order of the learned Sub-divisional Officer. It appears to me that the learned Sub-divisional Officer in passing his order dated the 16th of March, 1944, was under the impression that the crops had already been cut; otherwise, he would not have directed the sale of the tenants' share of the produce. Actually, however, the crops on the disputed land had not been cut before the 29th March, 1944, though a peon had been deputed to watch the crops. I am further of the view that after the 16th March, 1944, when the case under section 69, Bihar Tenancy Act had terminated, there could be no further order of attachment of the crops. Mr. Baldeva Sahay, arguing for some of the appellants, has contended that even if there was no attachment in law after the 16th March, 1944, the parties understood the attachment to subsist even after the 16th March, 1944. He has further contended that the accused persons harvested the crops, not in defiance of the orders of the peon but with his consent. In that view of the matter, so he contends, it cannot be said that the accused persons had an unlawful common object. In my opinion, these contentions are not correct. If the attachment was subsisting, then none of the parties had the right to cut the crops without the orders of the court. The contention that the accused persons were harvesting the crops with the consent of the peon is not supported by any reliable evidence. Reference has been made to the evidence of two defence witnesses, Deep Narayan Pandey (D.W 4) and Ajodhya Dhanuk (D.W 5) in this connection. The evidence of D.W 4 is to the effect that he never saw any court peon there and he merely heard that the arhar was cut by a peon under the orders of the court. His evidence is hearsay and, therefore, not admissible at all. Ajodhya Dhanuk (D.W 5) said that the arhar was cut by a sarkari chaprasi. The learned Sessions Judge has rightly characterised this statement as wholly incorrect. The crop was not harvested by the peon at all; on the contrary, the crop was being harvested by a mob armed with dangerous weapons. Some members of the mob were harvesting the crop while others stood on the bank of the river in order to prevent any interference. The prosecution evidence no doubt shows that the peon was for some time living in Khutaha. There is, however, no reliable evidence that the peon was present at the time of harvesting or that he had ordered or allowed the accused persons to cut the crop. I am not, therefore, prepared to accept the contention that the accused persons had cut the crop under the order's of or with the permission of the peon. If the crop was under attachment, the harvesting of the crop by force would be an unlawful common object and would deprive the accused persons of the right of private defence of property.
From whatever point of view we look at the case, it appears to me that the accused persons are not protected by the right of private defence, either of property or of body.
I now take up the point about the identity of the dead-body. The evidence of Balik Singh (P.W 3) shows that, he saw the members of the mob removing the body of Mahendra towards Karanpur Dagar and further towards the east. The evidence of the Sub-Inspector (P.W 22) shows that he noticed a trail of blood on a ridge 40 steps north of the arhar field. These drops of blood continued up to 200 yards east where the ridge joins the Karanpur Dagar. He also found marks suggesting the dragging of the body for about 18steps just above the western side of the bed of the river. The Sub-Inspector found the dead-body in the bed of the Katoria river. The dead-body had no head and the right leg was missing. It is true that the investigating police officer (P.W 22) was not sure if the dead-body was that of Mahendra Singh, though he had seen Mahendra Singh before. Narsingh Singh (P.W 1) identified the death-body to be that of Mahendra Singh. He is supported in this by the constable Jagdeo Singh (P.W 12). This witness had seen Mahendra Singh before and was in a position to identify the body. Mahendra Singh was a stout wrestler of medium height. The evidence of the doctor who held post mortem examination shows that the body was of a well-built male, extensively burnt and charred at places, head completely absent. The doctor found two punctured wounds on the inner wall of the abdomen on the right and left sides; intestines were protruding through the punctured wounds. There were corresponding punctured wounds in the loops of the intestines. The doctor was in a position to say that the injuries in the abdomen were ante mortem. He was not in a position to say whether the injuries on the neck, due to the removal of the head, were ante mortem or post mortem. He was, however, in a position to say that the burns and charrs were post mortem. The doctor further found that the fingers of the right hand had been cut by a sharp weapon. The evidence on the record shows that dead-bodies are burnt in river Katoria. Mr. S.N Sahai, arguing for two of the appellants, has contended before us that the body found by the Sub-Inspector of Police might be the dead-body of a person who had met with a normal death and whose body was being burnt by the villagers. The body of a person who had met with normal death would not present two ante mortem punctured wounds in the abodmen. The existence of these two punctured wounds in the abdomen fits in with the prosecution case and goes a long way to establish the identity of the dead-body. The evidence of the doctor further shows that the head had been severed, obviously for the purpose of making identification difficult. The dead-body of a person who had met with normal death would not have the head severed. It has been contended before us that the head might have fallen off as a result of burning. This, however, is not consistent With the evidence of the doctor, and it is improbable that the head would be burnt off leaving the other parts of the body in the condition in which the doctor found it. The circumstances in which the body was found soon after the occurrence, the existence of the injuries on the body, the existence of the trail of blood, the evidence of the witnesses—all these have to be considered together. If these are considered together, then there can be no doubt that the body found by the Sub-Inspector was that of Mahendra Singh who had been assaulted by the members of the mob only a few hours before the body was found. Obviously the members of the mob had tried to make identification difficult by severing parts of the body and had tried to burn it as quickly as possible. The prompt action taken by the Sub-Inspector had prevented the complete burning of the body, and I think the investigating police officer deserves credit for the prompt action taken by him.
As to the plea of alibi raised on behalf of the two accused persons, Ganu Gope and Sidhu Gope, I fully agree with the reasons given by the learned Sessions Judge for rejecting the plea. It is not necessary to repeat those reasons. The learned Sessions Judge has considered the evidence on the point in detail. He has very rightly pointed out that the prescription (exhibit A) was not produced at an earlier stage, though it was stated to be in possession of one of the accused persons. The entry in the register of the doctor appears at a place which, raises a reasonable suspicion of interpolation. Our attention was drawn to two bail applications filed on behalf of these two accused persons, in one of which the illness of Ganu Gope was mentioned and in the other it was stated that the prescription, etc., had been produced. These bail applications were, however, filed a long time after the occurrence. Even if Ganu Gope was ill of malaria on the 28th March, 1944, at Basukinath, there is nothing to show that it was not possible for Ganu Gope and. Sidhu Gope to be present at the occurrence on the 29th morning. It is true that the doctor's evidence shows that Ganu Gope was treated till the 1st of April and Sidhu Gope attended on him. The doctor no doubt says that Ganu Gope was not in a position to move. I find it difficult, however, to accept his statement that a man suffering from malaria was not in a position to move at all in any case, the prescription, the entry in the register, the certificate given by the doctor, have all been considered in detail by the learned Sessions Judge, who, in my opinion, has given very good reasons for finding that these documents were subsequently brought into existence for the purpose of establishing a plea of alibi. In my opinion, the learned Judge has rightly rejected the plea of alibi.
Now, comes the question as to whether the two accused persons, Ganu Gope and Sidhu Gope, have been rightly convicted under section 302, Penal Code. I have already referred to the fact that these two accused persons are entitled to the benefit of the omission in the first information, which does not single out these two accused persons as having given the bhala blows on the abdomen of Mahendra Singh. There can be no doubt that some members of the mob did give bhala blows on the abdomen of Mahendra Singh. There can also be no doubt that those members of the mob who gave the two bhala blows on the abdomen of Mahendra Singh would be guilty of the offence of murder under section 302, Penal Code. The question, however, is, if these two accused persons, Sidhu Gope and Ganu Gope, can be found guilty of the offence under section 302, Penal Code, in view of the fact that the first information report does not state that they had given the two bhala blows on the abdomen of Mahendra Singh. In my, opinion, these two accused persons cannot be found guilty of the offence under section 302, Penal Code, in view of the statement made in the first information.
The next question is if these two and the other accused persons can be found guilty under section 302 read with section 149, Penal Code. There is no doubt in my mind that Mahendra Singh was assaulted by the members of the mob in prosecution of the common object of the unlawful assembly. Mr. Baldeva Sahay, arguing for some of the appellants, has contended before us that if the Goalas of Khutaha were in possession of the disputed land and the crop was not under attachment, then one of the common objects mentioned in the charge, namely, to loot the crops of Narsingh Singh, would undoubtedly fail. He contends that the accused persons were committing no offence in cutting their own crops. I have already said that it is unnecessary to determine in this case which bataidar was in possession of the land in dispute. Even if the Goalas of Khutaha were in possession of the land, they would still be an unlawful assembly when they attacked Mahendra Singh on the other side of the river merely on his protest that the crops should not be cut. The charge mentions two common objects as stated by me previously. The contention of Mr. Baldeva Sahay is that the second common object of assaulting Mahendra Singh was merely ancillary to the first common object; and if the first common object fails, the accused persons cannot be found guilty on the second common object. For this he has relied on the case of Aklu Mian v. Emperor and the unreported case of Baldeo Gangota v. King-Emperor, decided on 2nd February, 1945. What is the real common object of an unlawful assembly, and whether of the two common objects mentioned in a charge, one is the real common object and the other is merely subsidiary to it, will depend on the facts of each case and will vary from case to case. No hard and fast rule can be laid down which would fit in with every case. In the particular case before us, some members of the mob were harvesting the crop; others were standing on the bank of the river armed with dangerous weapons in order to assault anybody who would come to interfere or protest. I have found that the members of this mob fell on Mahendra Singh and assaulted him on the other side of the river as soon as he merely protested against the harvesting of the crop. In these circumstances, it cannot be said that the second common object is merely subsidiary to the first common object, and that it cannot make the members of the mob, who shared in that common object, an unlawful assembly. In my opinion, the second common object is as important as the first one, and can make the members of the assembly, who shared in that common object, an unlawful assembly. This matter has been very clearly explained by Ainslie, J. in the leading case of the Queen v. Sabid Ali. Though Ainslie, J. delivered the dissentient judgment in the Full Bench case, the point which is under consideration was one of the points on which their Lordships were in agreement. I can do no better than quote from the judgment of Ainslie, J.:—
“I do not think it possible on the evidence to say that the common object was limited to the ejectment, and that the use of force was not deliberately contemplated. Nor do I think that we may say that force was only a means to an end, and that the ultimate object of obtaining possession of the field was the only common object of the party. It was clearly the deliberate intention of the unlawful assembly to use certain means to obtain a certain end, and I am, therefore unable to come to any other conclusion than that the common object was compounded both of the use of the means and the attainment of the end.”
In this case also the common object of assaulting anybody who would come to intervene was present in the minds of the members of the mob from the very beginning; otherwise, some members of the mob would not be standing on the river armed with dangerous weapons. It cannot, therefore, be said that the common object of assaulting Mahendra Singh and others was a subsidiary common object of no particular account; on the contrary, it was as important as the other common object of harvesting the crop. The two cases on which Mr. Baldeva Sahay has relied can be easily distinguished on facts. In the case of Aklu Mian v. Emperor the real common object was to destroy the hut: the beating was merely an incidental happening. In the case of Baldeo Gang ota v. King Emperor, the finding is that two of the accused persons were assaulted first which resulted in an exchange of blows by those who had accompanied these two accused persons. Naturally, therefore, assault was not taken as the principal common object of the unlawful assembly.
It is now well settled, as far as this Court is concerned, that the members of an unlawful assembly are not necessarily guilty of the same offence as the principal offender. It has to be determined, with reference to the facts of the case, what offence the members must have known to be likely to be committed; if such offence is a minor offence, then they should be convicted accordingly [Bhagwat Singh v. King-Emperor]. There are two other decisions also in which the same principle has been followed [Tulakant Jha v. King-Emperor, decided on 24th April, 1940, and Shankar Koiri v. King-Emperor, decided on 6th November, 1939]. In both these cases it has been held that a person can be convicted of the constructive offence of murder not only where the offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, but also where the offence is such as the members of that assembly know to be likely to be committed in prosecution of the common object. In short, any member of an unlawful assembly is guilty of an offence committed by another member of that assembly, if the offence is of such a nature that the members of the unlawful assembly must have known that such might be committed in prosecution of the common object of the assembly. The following observations made by Meredith, J. in Shankar Koiri v. King-Emperor, are relevant for the purpose:—
“In such cases, some member of the mob, carried away by anger and excitement, frequently goes further than is likely to have been anticipated. In the circumstances, it is neither necessary nor right, in my opinion, to hold all the appellants guilty of murder. When they joined in this attack, however, a number of them being armed with spears, they must have known it likely that grievous hurt would be caused with deadly weapons to someone, that is to say, they must have known it likely that the offence under section 326 would be committed.”
I agree with the observations made above, and, in my opinion, those observations apply with equal force in the present case. Some of the members of the mob which attacked Mahendra Singh were armed with spears; others were armed with different weapons, such as farsa, lathi, etc. The members of the unlawful assembly must have known that grievous hurt with dangerous weapons was likely to be caused in prosecution of the common object of assaulting Mahendra Singh and his companions. I do not think it can be said that the members of the unlawful assembly knew that murder or culpable homicide was likely to be committed. I, therefore, think that the proper section to apply in the present case is section 326 read with section 149, Penal Code. I should also add that the word “knew” in section 149 indicates a state of mind at the time of the commission of the offence: the subsequent dragging of, the body, etc., however cruel, cannot affect that knowledge.
Mr. Baldeva Sahay, appearing for some of the appellants, has also contended that the charge is defective inasmuch as it says that the offence of murder was committed in prosecution of the common object of the unlawful assembly. It is well known that section 149, Penale Code, is divided into two parts: (1) an offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly; and (2) an offence such as the members of the assembly knew to be likely to be committed in prosecution of that common object. It has been contended by Mr. Baldeva Sahay that the chargers under the first parti and, therefore, the appellants cannot be convicted of an offence under the second part. In my opinion, this contention is not; worthy of acceptance. The charge no doubt mentions that the offence of murder was committed in prosecution of the common object of the unlawful assembly. The offence under section 326 read with section 149, Penal Code, is a minor offence and is covered, by the charge. The mere fact that a charge does not mention that the members of the unlawful assembly knew that an offence under section 326 was likely to be committed, does not invalidate the charge, nor has it caused any prejudice to the appellants.
I will now take up the individual case of each one of the appellants. A's far as Hublal Singh is concerned, he is clearly entitled to the benefit of doubt. It was alleged against him that he had given the order for assault. This fact is not mentioned in the first information. Hublal Singh was one of the defendants in the title suit which Babu Bijoy Krishna Banerji brought in 1932. There was, therefore, a temptation to make him an accused person in the present case as well. Naurangi Singh (P.W 13) has stated that he knows Hublal Singh; but he did not notice him in the mob. He has no doubt been identified by other witnesses. In view, however, of the circumstances mentioned above, Hublal Singh is entitled to the benefit of doubt.
As to Ganu Gope and Sidhu Gope they have been identified by a large number of Witnesses. Their names appear in the first information report. The evidence of Meda Singh (F.W 2) shows that Ganu Gope and three others hit him with bhala. The doctor's evidence shows that Meda Singh had only one bhala injury. It is doubtful which of the accused caused the bhala injury on Meda Singh. The conviction under section 324. Penal Code, cannot, therefore be supported. There can, however, be no doubt of the complicity of these two accused persons in the assault on Mahendra Singh.
As to the remaining six accused persons. Iswar Gope is named in the first information and is identified by P.Ws 1, 4, 13, 14 and 20. Even excluding Inder Mandal (P.W 20), he is identified by four witnesses. The evidence is also clear that he was armed with a bhala. Mangal Gope alias, Mangru Gope has been named in the first information and has been identified by P.Ws 1, 2, 3, 4, 13, 14 and 20. Even excluding the witnesses about whose testimony there may be some doubt, be has been identified by sufficiently a large number of witnesses. The evidence is also clear that he was armed with a bhala. He has also been found guilty under section 324. Penal Code, for having hit Meda Singh with a bhala. For the reasons given in the case of Ganu Gope, the conviction under section 324, Penal Code, against this accused person cannot be sustained. Accused Sipchu Gope has been named in the first information and has been identified by a large number of witnesses. He was not, however, armed with a dangerous weapon. Hirangi Gope is named in the first information and has been identified by a large number of witnesses. He was armed with a pharsa, Banru Gope is named in the first information and is identified by four witnesses. He was armed with a bhala. Bhola Gope (son of Ganu Gope) is named, in the first information and is identified by 5 witnesses. Two of the witnesses, however, did not name him before the police. Excluding these two witnesses, there are only three witnesses, P.Ws 1, 4 and 13, who identify him. In a large mob identification is not always easy, and, I think, this accused, who is identified, by the least number of witnesses, should also be given the benefit of doubt.
The result, therefore, is as follows. Appellants Hublal Singh and Bhola Gope are entitled to the benefit of doubt and should be acquitted. Their appeals are allowed and the conviction and sentences passed against them are set aside. The remaining appellants are all found guilty under section 326 read with section 149, Penal Code. Those of them who were armed with deadly weapons, namely, Ganu Gone, Sidhu Gope, Iswar Gope, Mangal, alias Mangru Gope, Hirangi Gope and Banru Gope, are also found guilty under section 148, Penal Code. The remaining appellant, Sipchu Gope, who was not armed with a deadly weapon, is found guilty under section 147, Penal Code. The conviction under section 324, Penal Code, against Ganu Gope and Mangal Gone is set aside. Six of the appellants, namely, Ganu Gope, Sidhu Gope, Iswar Gope, Mangal alias Mangru Gope, Hirangi Gope and Banru Gope, are sentenced to rigorous imprisonment for seven years under section 326 read with section 149, Penal Code. Sipchu Gope, who was not armed with a deadly weapon, is sentenced to rigorous imprisonment for four years under section 326 read with section 149, Penal Code. It is not necessary to pass any separate sentence under sections 148 and 147, Penal Code.
The net result, therefore, is that the appeals, of Hublal Singh and Bhola Gope are allowed and the appeals of the other seven appellants are dismissed with the modifications of the conviction and the sentences mentioned above. The reference under section 374, Code of Criminal Procedure is discharged.
Before I conclude, I would like to observe that this case show's that if the Sub-divisional Officer had taken timely steps to get the crops cut, after the attachment under section 69, Bihar Tenancy Act, the occurrence might have been avoided. The ordersheet (exhibit 11), to which I have made a reference, shows that the learned Sub-divisional Officer had ordered the cutting of the crop after attachment. If timely steps had been taken to give effect to the order, the unfortunate result which followed would have been avoided. The necessity of prompt action in cases of this nature, where there is an apprehension of a breach of the peace, cannot be over-emphasized. This is a case in which the parties have been fighting over possession for a long time; and whenever there is an apprehension of a breach of the peace, the Magistrate should take prompt action and decide the dispute once for all under section 145 or any other appropriate section of the Code of Criminal Procedure.
Varma, J.:— I agree.
Order accordingly.
H.R.K