Pasput Gope and others vs Ram Bhajan Ojha

The Appellants before us, Ram Bhajan Ojha, Ambica Ojha, Cya Ojha, Polak (sic), and Pasput Gope, have been convicted by the Sessions Judge of Santhal Parganas of an offence under sec. 309/149 I.P.C. and sentenced to transportation for life. The facts of the case briefly stated are these:--Ram Charitra, Ram Sebuck, Ambica, Gya, Polak, and some other person held or hold, possession of certain lands in the zamindari of Mr. Grant. Mr. Grant had been for some time attempting to obtain khas possession of some of these lands and necessarily there was some friction between Mr. Grant''s employees and some of the Appellants and their relations.

The occurrence, with which we are concerned, took place on the 24th May last, which was a Sunday, between 9 and 10 o''clock in the morning. The story for the prosecution is, that while the deceased Sheo Sum Ojha, the Jamadar, attached to Mr. Grant''s kutchary at Udarjana, and Ram Bhajan Peon, and one or two other people were on their way from the kutchaty to a place called Simultolah, for the purpose of collecting rent on account of pasture lands; they were waylaid by the Appellants, that both Sheo Surn Ojha and Ram Bhajan were attacked with lathis; that Sheo Surh was seriously wounded and Ram Bhajan was also wounded; that Sheo Surn had to be carried in a litter to the thana, and thence to the hospital; and that in the course of the same night, that is to say, at about half-past 9 o''clock, he died.

The charges preferred against the accused were several--charge under secs. 148, under sec. 326, and also under sec

The assessors were of opinion that the offence committed by these men was not murder, but that it was an offence falling under secs. 148, and 302/149 I.P.C.

The learned Sessions Judge, however, was of a different opinion, and as has already been mentioned, he has convicted all the Appellants of murder under sec. 302/149 I.P.C

The accused pleaded not guilty, and offered some evidence showing that the scene of the occurrence was not the place mentioned by the witnesses for the prosecution, that the occurrence took place in one of the fields which was then being ploughed by the men of Ram Charitra Ojha: that the deceased Sheo Sum and Ram Bhajan came and interfered with the ploughing, and that there upon there was a tussle between Ram Bhajan and Sheo Sum on the one hand, and Ram Charitra on the other. The evidence does not proceed to state what was the result of that tussle, and how was Sheo Sum wounded. In the course of the argument that was advanced before the learned Sessions Judge by the pleader who appeared for the accused, it was contended (so it appears from his judgment) that what the accused did was in right of self defence, or rather the defence of property. Mr. Carstairs dismissed that argument altogether upon the ground, as he puts it in his judgment, that because the accused did not plead justification in that way, that is to say, that they acted in self-defence, the argument was inadmissible. He then addressed himself to the facts of the case, and was of opinion that all the Appellants took part in the not, and death was the result of the attack that was made by some of the rioters upon the deceased. In determining the question as to what the offence was, that the accused were guilty, the learned Sessions Judge says as follows;--

I find that the infliction of the injuries was proved, and that they are of such a character and inflicted in such circumstances that the killing of Sheo Surn must be held to have been known to the rioters to be the probable result of their action. They are thus guilty of culpable homicide. The question arises whether there is anything to bring them under any of the exceptions, reducing the offence below murder, I see no signs of this, and so on. He has accordingly held that the offence committed by the Appellants is nothing less than murder.

With regard to the argument on the score of self-defence that was advanced before the Sessions Judge by the pleader for the accused, we think that the view expressed by the Sessions Judge is wrong for it seems to us that if it did appear upon the evidence either for the prosecution or for the defence that what was done by the accused was in self-defence, it was the duty of the Sessions Judge to accept the plea that was advanced before him, and not to have dismissed it in the way he did. All that the accused had to do was to plead not guilty; and it was the duty of the Court to say upon the entire facts of the case if any offence, and what offence was committed.

Then as regards the question whether the offence was murder, or anything short of murder, it seems to us that upon the view of the facts presented by the learned Sessions Judge in his judgment, the offence was not murder, as defined by sec. 300, I.P.C. but rather culpable homicide not amounting to murder, as falling within the second part of sec. 304. That officer has not evidently considered. whether, in this transaction, there existed the chief element which constitutes the offence of murder, namely, intention. No doubt, it was culpable homicide, within the meaning of sec. 299, I.P.C. but sec. 300 defines when culpable homicide amounts to murder. The Judge seems to have followed this line of reasoning while discussing the question whether the offence committed is murder :-- "The offence is culpable homicide, and it is murder, unless there was anything to show that the accused came within any of the exceptions mentioned in sec 300 " Now, that reasoning is, to our minds, entirely faulty. The Sessions Judge ought to have considered in the first place whether the element or elements, which constitute the offence of murder, as defined in sec. 300, did exist in this case.

We now address ourselves to the facts of the case. One of the points at issue in this case, and we may say, one of the most important issues, is where did the occurrence take place; whether it took place at the spot deposed to by the witnesses for the prosecution, or in the field belonging to Ram Charitra Ojha. It seems to us, upon consideration, that the story, as told by the witnesses for the prosecution, is somewhat improbable, and that it is more probable that the scene of the occurrence was the field or some place, or other near the field of Ram Charitra Ojha. We doubt very much whether, as deposed to by the witnesses for the prosecution, that the Appellants and their comrades who resided at Bhugwantollah, three miles away, should have been watching the Jemadar Sheo Sum and the peon; and that so soon as they crossed over from their kutchary side to the other side of the Pugla Nuddi, they (the Appellants) waylaid them; they had apparently no previous notice that Sheo Surn and the other men were going that day and at that hour to Simultollah. It has, however, been argued before us by the learned counsel for the prosecution, that having regard to the fact, as deposed to by some of the witnesses for the prosecution, that on the previous day, that is to say, on Saturday, the 23rd May, the zemindar''s people had ploughed up and taken possession of two bighas of land out of the 16 bighas belonging to Ram Charitra and his family; it is more probable that they should have been watching on the next day, that is to say, on the 24th, for the zemindar''s people; and that finding them on the south bank of the Pugla river, they attacked them while they were on the road to Simultollah. It seems to us that this theory can hardly be supported; for, in the first place, it is not likely that the Appellants would quietly allow the zemindar''s servants to take forcible possession of the land in the way suggested, and in the second place if the zemindar''s people had really ploughed up the land on the preceding day, the Appellants would rather be in that land or somewhere near it, in order to get back possession, than lurk about in the road leading to Simultollah. Upon a consideration of the evidence in the case, we are of opinion that the attack was the outcome of some interference or other, which was most probably made by the zemindar''s people with the ploughing, or cultivation of Ram Charitra''s field. The question then arises whether that interference, whatever it was, justified the Appellants in doing that what they certainly appear to have done. The Appellants were no doubt entitled to use a certain amount of force to expel the zemindar''s people from the land, but they clearly exceeded the right of defence of their property; for they seem to have attacked Sheo Sum and Ram Bhajan with their lathis, the result being that in the course of the same night, Sheo Sum died. The question that we have next to consider is what is the offence, if any, that was committed by these individuals. As regards one of the Appellants, Pasput, we may say that we are not satisfied that he took any part in the riot that took place. He might have been present there; but the evidence does not show that he took any part in the attack. As regards the other Appellants, we hold upon the evidence that they were present there, and took some part or other in the riot. According to the dying declaration of Sheo Sum, it was only Ram Charitra Ojha and Ambika, and two others who are not before the Court now, who took part in the beating which was inflicted upon him; but according to the information that was lodged by Sheo Sum Ojha, on the evening of the 24th May, Ram Charitra and three other persons, who are not now before the Court, had attacked Sheo Surn, while Ambika and Polak beat Ram Bhajan. If we are to accept the statement that was made by the deceased on the evening of the 24th, we could not hold that anybody, except Ram Charitra Ojha, took part in the attack that was made upon the person, but having regard to the fact that he was in a very helpless condition, and that he could hardly speak out, we think we ought not to proceed upon the statement alone, and reading the evidence of the witnesses examined in the case by the light afforded by the statement that was made by Sheo Sum in the first information, we think we may safely take it that all these persons, Ram Charitra, Ambika, Gya, and Polak were concerned in the attack that was made upon both these persons, Sheo Sum and Ram Bhajan, and that it was Ram Charitra only, and some other persons who are not before the Court, that took part in the attack that was made upon Sheo Sum, while others attacked Ram Bhajan. The common object of the unlawful assembly that was formed upon this occasion, as stated in the charge sheet, was the beating of Sheo Sum, and looking at the evidence we think that the object which the rioters had in making the attack that was made upon Sheo Sum and Ram Bhajan, was to give them a good chastisement and to expel them from the land, and that it was far from their intention to kill either of them; and we do not think that when Ram Charitra attacked Sheo Sum it was his intention to do him such bodily harm as he knew would likely cause death. There was a tussle between the parties, and it would appear from the evidence that both Sheo Sum and Ram Bhajan had lathis in their hands, and it is not improbable that both sides used such weapons which they bad in their hands. However that may be, the rioters must have known that at least grievous hurt was likely to be caused in the course of the attack that was made. In that view of the matter, we think the conviction in this case should be under sec. 303/149 I.P.C. there being nothing to show who caused the grievous hurt, which, according to the medical evidence, ended so fatally. Having regard, however, to the fact that Ambika, Gya and Polak did not attack Sheo Sum, we do not think that the same punishment should be meted to them as, we think, ought to be awarded to Ram Charitra. The sentence of this Court will be that Ram Charitra do suffer two years'' rigorous imprisonment, and Ambika, Gya, and Polak, one year''s rigorous imprisonment each, and that Pasput be acquitted.