Rowland, J.:— There are seventeen appellants all of whom have been convicted of rioting or rioting armed with deadly weapons and constructively held liable for causing grievous hurt with deadly weapons to Siaram Das in virtue of the provisions of s. 149, Indian Penal Code. There are charges of specific acts of violence against individuals which can be conveniently taken up when dealing with the cases of particular accused.
2. The common objects recited in charge of rioting and connected charges were “to assault Siaram Das and his companions or by means of criminal force or show of criminal force to Siaram Das and his companions wrongfully or illegally to loot the crops, and to assault them or to enforce a right or supposed right” A number of alternative common objects appears to have been recited in the charge in order to avoid the possibility that one object being charged and another established, a conviction might become on a technical ground impossible.
3. The case for the prosecution was that a plot of land named kur khet in Bishunpur having an area of 60 bighas and appertaining to the estate of the Bishunpur Asthal is along with other properties of the Asthal in the possession of Mahant Mahabir Das whese servant Khandi Rai had sown makai in a portion of it on Mahabir's bshalf, and had gone shortly after sunrise on 27th August, 1928, along with Siaram, Raghunath Das, Bharat Singh and Sant Narayan and 40 labourers to cut the crop which was nine, The party of the accused numbering 100 to 150 men armed with various weapons came and attacked Khandi Rai's party, inflicting injuries on Siaram which resulted in his death, and injuries on Gendhru, Sat Narayan, Bharat and Medini, The party of accused were acting for and were led by Mahant Jaggernath Das at whose orders they attacked the party of the prosecution. There is going on since about. 1927 a dispute between Jaggernath Das and Mahabir Das regarding” title to and possession over the Bishunpur Asthal and all the properties appertaining to it.
4. The defence alleged that Jaggeraath was in possession of the Asthal and of the field which was the scene of occurrence.
5. It was suggested at the trial that an entirely false account of the occurrence had been given by the prosecution, that in fact a large number of Mahabir's men had gone to loot the makai crop but fell out among themselves over the question to what place it was to be removed. The party of the accused had nothing to do with the fight that ensued. This line of defence is ingenious but hopelefs.
6. Of the seven witnesses examined for the defence no one has ventured directly to support it though there are two who sty that they saw a mob of partisans of Mahant Mahabir Das and saw no mob of partisans of Jaggernath Das. On the other hand there are two witnesses examined for the prosecution Musahsb Dhanuk (P.W No. 26) and Jhari Dhanuk (P.W No. 27) who are chaukidars of Bishunpur and whose sympathies are with the defence rather than with the prosecution, for neither of them supports the case of the prosecution regarding possession of the disputed land. These two chaukidars were sent to the Police Station on the morning of the day of occurrence by Nathuni daffadar where they made a report which was entered in the station diary (Ex. 7). The report is to the effect that men of Mahabir Das had gone with lathis and garansas to cut the makai crop grown by Jaggernath Das and that men of Jaggernath Das were present armed with lathis and would not let the crop be cut, that there was an apprehension of a serious breach of the peace, These two men are not witnesses who can be imagined to have invented a story of Jaggernath Das, men collecting an armed party if it was not true. I take it is established that the oconrrenca was a fight between men of Mahant Mahabir Das party and of Jaggernath Das party and that both sides had gone armed to the place with the intention of fighting.
7. The second line of defence is that Jaggernath Das being in possession of the field, his servants were justified by the right of private defence in using as much as was necessarv to prevent theft of the crop by men of Mahabir's party.
8. I think it necessary to examine the question of possession with some care as the Sessions Judge whose finding is that the field was in possession of Mahabir Das appears to some extent to have relied on the opinions of the assessors in coming to that finding. [His Lordship then discussed the evidence and proceeded:] Indeed it is difficult if not impossible in a case like the present to procure any direct evidence of possession which can be described as impartial. The dispute between the two Mahants has agitated the whole country side. The evidence of both sides appears to me to be almost equally balanced on the question of possession, a balance which is reflected in the opinions of the assessors on this point. It is not essential in the present case to come to a definite finding as to possession and it might prejudice the result of the civil litigation now pending to record on such uncertain evidence findings which are not essential for the disposal of this appeal.
9. The appellants in order to succeed must establish more than a more balance of evidence; they must establish a right of private defence, and to do this they must show affirmatively that possession was with their principal Mahant Jaggemath Das. I say this with reference to the form of the charge in which as recited above the first common object charged was to aesault Siaram Das and his companions, a common object which the evidence, to my mind, sufficiently establishes. It will be a sufficient finding for the purpose of this appeal to say that the parly of Jaggernath Das have not established that thay had any right of private defence. It is settled that there can be no light of private defence where the riot is premeditated on both sides is held in Queen-Empress v. Prag Dat(1) unless the object of the assembly is shown to have been to repel forcible and criminal aggression.
10. It remains to consider which of the accused are proved to have taken part in the riot and what offences each of them has committed.
11. The medical evidence is that Siaram das had 19 injuries of which three were incised penetrating wounds, one of which penetrated the left kidney and death was due to the shock and Icemorrhage resulting from the combined effect of the injuries. Medini Singh had 15 injuries including five lscarated and two incised wounds. Gendra Rai bad six injuries including one incised wound and a fracture of the left collar bone. Sat Narayan Rai had four slight injuries. It is sufficiently clear that both sharp and blunt weapons were used by the party of the rioters. The evidence is that after the occurrence arrangements were made to carry the injured men to the thana and thence to the hospital; that that head constable who had left the thana in consequence of the information lodged by the chaukidars as to the imminence of a breach of the peace met them on the way and prepared their injury reports and sent them to hospital. He could not take any statements from the injured men as all were restless all except Sat Narayan were unconscious and he too became unconscious after beginging to say something.
12. The First Information was lodged at 10-50 A.M in the village before-this head constable by Khandi Rai; it is Br. 1. He took up the investigation and had by 1 P. if examined 11 witnesses after which he made over charge to the Sub-Inspector.
13. Siaram died immediately after reaching hospital about 11 A.M Statements of the other four injured men were recorded by an Honorary Magistrate. I have given these particulars because in the case of almost every one of the accused the defence suggestion is that he has been falsely implicated because of some particular grudge against him and it is-well-known that when a riot has been committed it is unfortunately easy to add among the names of accused, persons against whom the informant or any particular witnees has a grudge.
14. The Sessions Judge in agreement with three out of the four assessors came to the conclusion that Mahant Jaggernath Das had been so implicated and he was acquitted.
15. It has been earnestly pressed upon us in argument that Ramphal and Garib, who are his principal chelas and one of whom may probably be nominated as his successor in place of Mahabir Das, have been similarly implicated without justification. They are not named in the senaha (Ex. 7) entered at 8-10 A.M at the Police Station on the information of the chaukidars, they are both named in the First Information Report of Khandi Rai but the mention of their names is brought in at the extreme end of the report and the head constable has prefaced this statement of the informant with the words “again says.” The infromant stated that Garib Das was armed with an elephant's ekari and Ramphal with a spear; he did not ascribe to them any overt act. They are not named in the statements (Exs. 6, 6-A, 6-B and 6-0) made by the wounded men to an Honorary Magistrate on the day of occurrence. In evidence Khandi names them but says that he did not see them doing anything. Medidi names them both as having been present and says that Garib Das pierced Siaram with a barchi (spear). Sat Narayan has not said that either of them was present; in fact his deposition is clear that he did not recognize them in the mob. Gendru says that Garib Das assaulted Siaram with an ekari and Ramphal assaulted him with a spear. Bharat names both these sccued as being present in the mob but ascribes no overt act to either of them.
16. The identification of these two accused by the men who received injuries in the fight is seriously shaken by their failure to name them in their first statements which they made before a Magistrate and without having the opportunity of consultation or preparation. The next witness Rameshwar who names these accused is also a witness who was examined by the Head Constable on the same morning on which the occurrence took place. In his statement to the Head Constable he did not name either of these accused; in Court he gives them both a prominent part saying that Garib struck Siaram with an “elephant's barehi” and that Ramphal struck Siaram with a bhala. Budhan Dusadh is a witness who was examined by the Head Constable at the earliest stage. In that statement he did not name either of these accused but in Court he gives them a very leading part saying that it was Garib, and Ramphal who accosted Siaram and aeked him why he was: getting the makai cut. Ram Chariter P.W No. 16) was examined by the head Constable at the earliest stage: he did not name these accused and in Court too he does not identify them by name but points them out. As to the evidence of Ramsarup and Raghunath Das the same remark applies as to that of Ram chariter. Of the witnesses examined at the later stages of the inquiry Khautar Ral (P.W No. 8) says in Court that he recognized both these accused and that Garib beat Siaram with a pharsa (thereby contradicting every other witneee). He told the Police that he did not know who beat whom. That there was a good motive for implicating Ramphal and Garib, even if they were not present, is suffcienly clear. They are named as active partisans of Jaggernath Das in Ex. 24. Complaints against them which were not substantiated were instituted by Raghunath Pas an adherent of Mahabir Das and a witness in the present case on 8th May, 1928, (Ex. B) and by Ram Lakhan Das pujari of Mahabir Das, on 2nd June, 1923, (Ex. B-1) and by Mahant Mihbir Das himself (Ex. B 3) and a petition under se. 144 and 107, Criminal Procedure Code, on 24th July, 1927, by Babu Dwarka Prasad, kar-pardaz for Mahabir Das.
17. In this state of the evidence it seems unsafe to affirm the conviction of these two appellants although it is not improbable that they were present.
[His Lordship dealt with the case of the other appellants and concluded as follows]
18. The result is that the conviction must be affirmed of all the appellants except Garib Das and Ramphal Das who are asquitted.
19. It remains to consider the question of sentence. The Sessions Judge has imposed sentence of seven years' rigorous imprisonment on all the accused under s. 326 or s. 326 read with e. 149 and has imposed a separate but concurrent sentence under s. 148 of two years on Gobind, Jagarnath Potedar, Gaffar, Resmi, Kesho and Ram Khelawan Rai. Separate but concurrent sentences of one year under s. 147 have also been imposed on Ramsarup Dusadh, Budhan Dusadb. Sobran Dusadh, Ramrup Dusadh, Naubat Dusadh, Anup Chowdhury, Kunj Bshari Singh, Dobhi Dusadh and Ram Kishun Rai. Separate but concurrent sentences four years' rigorous imprisonment have also been imposed under s. 323 on Jagarnath Potedar and on Gaffur Mian for causing grievous hurt to Medini Singh.
20. In the result the terms of imprisonment which each one of the appellants is to undergo is seven years. That sentence in the case of the principals and leading men in the riot seems to me not excessive but it is I think unduly severe as against those of the appellants against whom no specific act of violence is charged or proved. These are Ramsarup Dusadb, Budhan Dusidh, Sobran Dusadh, Naubat Dusadh, Dobhi Dusadh and Anup Chowdhury. In their case I would reduce the terms of imprisonment to two years, and would dismiss the appeal of Gobind Dusadh, Ramrup Dusadh, Resmi Dusadh, Jagarnath Potedar, Gaffur, Ram Khelawan, Kesho, Kunj Behari and Ram Kishrn. We are indebted to Mr. Agarwala for placing before us in the clearest possible form the particulars of the evidence against individual accused; a matter in which the judgment of the Sessions Judge left something to be desired.
Sir Courtney-Terrell, C.J:— I agree
22. Order accordingly.