Ram Prasad v. Emperor — 1947 DIGILAW 34 (ALL)

JUDGMENT Harish Chandra, J. - Ram Prasad Singh and Salik Singh, father and son, residents of village Khampur in police circle Baksa in the district of Jauapur, were prosecuted along with one Tinmia Singh, a nephew of Ram Prasad Singh, under Sections 323 and 304 read with Section 34 of the Indian(sic) Penal Code. Tinmin Singh was acquitted by the learned Sessions Judge of Jaunpur. The Appellants were also acquitted of the charge u/s 302 read with Section 34, I.P.C., but he convicted them under Sections 323 and 304 read with Section 34, I.P.C., and sentenced them each to one year's and five years' R.I. respectively for the two, offences. The two sentences have been ordered to run concurrently. 2. The complainant Mahadeo Singh and his brother Ram Sunder Singh deceased belonged to village Karchuli in police circle Machhlishahr in the district of Jaunpur. Village Karchuli is situated at a distance of about two miles from village Khampur. The Appellants and the complainant are descended from common an esters, the father of the complainant. Mahadeo Singh being a brother of the grandfather of the Appellant Ram Prasad Singh. The families have been separate since a long time, but certain Khatas in the two villages are still common although, the fields are in the separata possession of the two families and are cultivated sept(sic). rately by them. 3. The prosecution case is that on July, 1945 in the morning plot 30 situated in village Karchuli was being ploughed by one Matai, a ploughman of the complainant and the deceased Ram Sunder Singh who was an old managed about 75 years, was standing by. This plot is also part of a joint Khara of the complainant and. the Appellants. But admittedly it was in the separate cultivation of the complaint and the deceased. About two hours after sunrise the Appellants accompanied by Tinmin Singh arrived and stopped Matai from ploughing the field. When Ram Sunder Singh protested, he was beaten by them with lathis, and felled to the ground. Mahadeo Singh was grazing his she-buffaloes at some distance from the scene of occurrence. On hearing the shouts of the deceased and Matai, he ran to the scene of occurrence and in order to save his brother struck the Appellants with his danda. The Appellants then started beating Mahadeo Singh with their lathis and felled him also to the ground. Mahadeo Singh was grazing his she-buffaloes at some distance from the scene of occurrence. On hearing the shouts of the deceased and Matai, he ran to the scene of occurrence and in order to save his brother struck the Appellants with his danda. The Appellants then started beating Mahadeo Singh with their lathis and felled him also to the ground. In the meanwhile a number of persons arrived on the scene of occurrence and the assailants ran away. The deceased was unconcious and Mahadeo Singh had also received numerous injuries and was not in a fit condition to go to the thana. It is said that he too had become unconscious. Matai was accordingly sent to the thana, which is at a distance about 10 miles from the scene of occurrence, and he made a report there at 4 o'clock in the afternoon and stated all these facts. The first information report is Ex. P1 on the record. Ram Sunder Singh expired after about an hour after the occurrence. The station officer procesded to village Karchuli, prepared a sketch map of the scene of occurrence and held an inquest on the dead body of the deceased and after completing the investigation sent up the Appellants along with Tinmin Singh for trial with the result already mentioned above. 4. The Appellants pleaded not guilty. Their case is that Ram Prasad Singh was cutting his own Babul tree standing in a field north of plot 30 which is under the exclusive cultivation of the Appellants. Ram Sunder Singh deceased objected and struck Ram Prasad Singh with his danda. Ram Prasad then struck the deceased in return. Mahadeo Singh also arrived and there was a free lathi fight detween Mahadeo Singh and the deceased on the one side and the Appellants on the other. The prosecution examined Matai. 5. Mahadeo Singh and the eye-witnesses Jhunnu Singh, Bach ha, Sheomurat and Mahesh apart from some other witnesses whose evidence is more or less of a formal character. All the eye witnesses are residents of village Karchuli. The Appellant also examined three witnesses in their defence, namely, Bechan Pandey, Subkaran Dube and Molai. They are not residents of village Karchuli. Two of them belong to village Dilsadpur, while the third belongs to village Khampur. All the eye witnesses are residents of village Karchuli. The Appellant also examined three witnesses in their defence, namely, Bechan Pandey, Subkaran Dube and Molai. They are not residents of village Karchuli. Two of them belong to village Dilsadpur, while the third belongs to village Khampur. They say that they were going to the temple of Mahadeoji near village Karchuli to offer water to the delay as it was the 13th day of the and while and while they were on their way they witnessed the occurrence. The learned Sessions Judge has not accepted the evi-dence of these witnesses who, according to him appear to be chance witnesses. A suggestion was made to the prosecution witnesses that a Mela was taking place on that day at the temple of Mahadeoji in village Karchuli, but they denied it. The defence witnesses also admit that there was. no Mela on that day, but say that as it was the 13th day of the month, they, like many others, were going to the temple to offer water to the deity. I have been taken through the entire evidence in the case. It is pointed out that although Mahadeo Singh states that he was at a distance of two bighas from the scene of occurrence, Matai says that he was at a distance of 5 or 6 bighas from there. My attention has also been drawn to certain discrepancies in the evidence of the prosecution witnesses in regard to the time of arrival of the eyewitnesses on the scene of occurrence. The occurrence took place in an open place and, even if the witnesses actually arrived on the scene of occurrence sometime later, there was nothing to prevent them from witnessing ;he marpit while they were on their way to the scene after hearing the alarm raised by the deceased and Matai and I do not think the discrepancies are at all sufficient to discredit the evidence of the prosecution witnesses. It is further pointed out that; the statement made by the complainant that he had enmity with the Appellant because they had about two years ago prevented him and his brother from cultivating their field and from building a house is not supported by any reliable evidence. It is further pointed out that; the statement made by the complainant that he had enmity with the Appellant because they had about two years ago prevented him and his brother from cultivating their field and from building a house is not supported by any reliable evidence. Mahadeo Singh has stated that he held a Panchayat after he had been prevented from building a house by the Appellants, while the other witnesses have denied that any such Panchayat was held. It is further pointed out that no report was made to the police on behalf of the complainant in regard to this alleged incident. I am prepared to agree with the learned Sessions Judge that the evidence produced by the prosecution in support of the alleged motive is by no means satisfactory. But taken as a whole, I see no reason why the evidence of the prosecution witnesses as to the actual occurrence should not be accepted. Even if there was no previous enmity between the Appellants and the complainant, it is not unlikely that the Appellants had in fact come that morning with the object of preventing the complainant and his brother from ploughing(sic) the field in question. The evidence of the Patwari shows that the Khata in which the field in question lies still stands in the joint names of the complainant and the Appellants and that although the fields had actually been separated between the two branches of the family, the division has not yet been recorded in the village papers. As I have said before, the defence version of the occurrence is on the other hand not supported by any reliable evidence. Moreover, the evidence of the station officer is that when he went to the scene of occurrence to investigate the case, no one drew his attention to the Babul tree in question. He was in the village for about two days and if the marpit had in fact occurred in the manner alleged by the defence, it seems difficult to understand why the attention of the investigating officer was not drawn to the tree at all. 6. The statement of the investigating officer further is that he actually found marks of blood in the middle of plot 30, which is consistent with the prosecution version of the case rather than with the story as set up on behalf of the Appellants. 7. 6. The statement of the investigating officer further is that he actually found marks of blood in the middle of plot 30, which is consistent with the prosecution version of the case rather than with the story as set up on behalf of the Appellants. 7. For the reasons given above, I am satisfied that the learned Sessions Judge, has come to the right conclusion and that the marpit occurred substantially in the manner alleged on behalf of the prosecution, I may add that assuming that the marpit occurred in the manner alleged by the defence, the large number of injuries received by Mahadeo Singh and the severe injuries that were caused to the decaased who, it will be remembered, was an old man of about 75 years, would seam to indicate that even if the Appellants had any right of private defence, it was far exceeded by them. It is further argued on behalf of the defence that in view of the decision is the case of Ram Nath v. Emperor 1943 AWR (H C) 117., Section 34 cannot be properly applied to a case falling under the second part of Section 304 of the Indian Penal Code With all respect I do not agree with the view expressed by a learned Judge of this Court in that case. Whether Section 34 can be applied or not would depend upon the particular facts of each case. In the present case if the prosecution evidence is believed, the two Appellants were obviously acting in furtherance of the common intention of both when they assaulted the deceased and Mahadeo Singh and forcibly prevented their field from being ploughed by their halwaha. The deceased Ram Sunder Singh was a very old man and they would, therefore, also be presumed to have known that in assaulting him with lathis they were doing an act which was likely to cause death. In the circumstances I see no difficulty in the application of Section 34 to the facts of the present case. My attention has also been drawn to the Calcutta case of Aniruddha Mana and Others Vs. Emperor, AIR 1925 Cal 913 . In the circumstances I see no difficulty in the application of Section 34 to the facts of the present case. My attention has also been drawn to the Calcutta case of Aniruddha Mana and Others Vs. Emperor, AIR 1925 Cal 913 . The judgment in that case was delivered by Walmsley, J. who thought that Section 34 could not only not be applied to a case under the second part of Section 304 which expressly excludes intention but also to a case under the first part, "except possibly in very rare cases". But his judgment does not contain any further discussion of the matter and the reasons which led him to this Conclusion are not clear. In an Oudh case at Gajraj Singh v. Emperor 19l6 A W R (C C) 162., it was found that out of the four accused who beat the deceased with lathis it was not certain as to who struck the fatal blow and the common intention of them was, as shown by the circumstances, only to break him up in such way as legally amounted to grievous hurt and not to kill him. In the circumstances, it was held that the accused could not be convicted of murder but only u/s 325 read with Section 34. But in the present case the common intention of the Appellants, as appears from the evidence and the cirumstances of the case, was to prevent forcibly the field of the deceased and Mahadeo Singh from being ploughed and the assault that they committed upon the deceased was apparently in furtherance of their common intention. As I have just said the deceased being a very old man they would, in the circumstances of the present case, be deemed to have acted with the knowledge that their act was likely to cause death and there seems to be no reason why, in the circumstances of the present case, the Appellants cannot be held liable u/s 304, part two, read with Section 34. I.P.C. 8. I am accordingly of opinion that the Appellants have been rightly convicted. Having regard to all the circumstances of the case, I do not think that the sentences passed upon them are too severe. I accordingly maintain the convictons and the sentences passed upon the Appellants and dismiss the appeal. 9. The Appellants will surrender to their bail and undergo the unexpred(sic) portions of their sentences.