Ritlal Singh and Another vs King-Emperor

Macpherson, J.—This is an application in revision on behalf of two accused who have been convicted by the Deputy Magistrate of Gaya u/s 326 of the Indian Penal Code and sentenced to six months'' rigorous imprisonment and whose convictions and sentences have been upheld on appeal by the Sessions Judge with the addition of an order u/s 106 of the Code of Criminal Procedure.

The petitioners with nine others were charged with an offence u/s 326 read with Section 149 of the Indian Penal Code and acquitted. The petitioners were, however, also separately charged u/s 326. The contention on their behalf is that upon the findings of fact arrived at by the Sessions Judge they are entitled to acquittal of the charge u/s 326 since the witnesses on whose testimony they have been convicted, have been disbelieved in respect of their evidence tending to establish the charge u/s 326 read with Section 149 of which they have been acquitted.

The case for the prosecution was that Jamuna Prasad Singh was irrigating his jagir land at spot A when the accused who are servants of the 7 annas Tikari Raj came up in a mob of ten to fifteen armed men, of whom the two petitioners carried swords, directed him to desist as they would take the water to Puna wan; when he refused he received a sword blow on his right arm from Ritlal Singh and ran away pursued by the mob who surrounded him in Jagdeo Singh''s field a rassi south-west of the jagir land; there he was struck by the accused with their swords, by Tiloki on the left arm and by Ritlal on the head, and then the whole mob assaulted him with swords and lathis till he was unconscious; on recovery of consciousness he sent for his brother Shiunandan whom be directed to inform at the thana. Shiunandan lodged the first information. The medical witness proved twelve injuries of which no less than five were incised wounds of a severe nature, and there can be no doubt that these injuries constituted grievous hurt with a cutting weapon.

The Magistrate found that the alleged, motive was not quite convincing and that the alleged common object of the unlawful assembly was therefore not made out and accordingly the charge u/s 149 failed. But he found that the assault probably took place in connection with a parti field close to Jagdeo''s field, of which the Raj had obtained possession through the Court, and that Jamuna was unarmed and the brutal assault on him with cutting weapons by the petitioners in Jagdeo''s field after he had left the disputed land, negatived any defence of right of private property, which could not in the circumstances have necessitated such severe injuries with cutting weapons.

The learned Sessions Judge found that the injuries were not fabricated and believed that the occurrence took place substantially in the manner described by the prosecution, having arisen out of some dispute as to irrigation the nature of which was not convincingly established. He found that the accused took part in the attack upon Jamuna and had no right of private defence when the latter had left the parti land, even on their own case (which he doubted) that the dispute related to the parti land near Jagdeo''s field. From the weapons used by the petitioners and the injuries inflicted, clearly more force had been used than was necessitated by the nature of the case, especially as the thana was only a mile distance.

On behalf of the petitioners reliance is placed upon the case of Patali Singh v. Emperor (1918) 5 P.L.W. 157. But that case is distinguishable since there the story for the prosecution had been disbelieved in its most essential details. Here such is not the case. Though the evidence for the prosecution does not establish the precise nature of the irrigation dispute or the precise place where the dispute took place and therefore the charge of rioting has failed, nevertheless it has been satisfactorily established that the petitioners using cutting weapons, voluntarily caused grievous hurt to Jamuna in circumstances to which the right of private defence of property, whether a right of irrigation or parti land, could not possibly extend. The appellate Court has accepted the complainant''s testimony corroborated as it is by the first information. That testimony is sufficient to establish the charge u/s 326 of the Penal Code. This disposes of the matter in revision, but persual of the record leads mo to the further conclusion that if the case had come before me on appeal, I should have found myself in complete agreement with the findings of fact of the learned Sessions Judge in respect of the conviction now under consideration.

The sentence being light this application fails and is dismissed. The petitioners must surrender to serve the unexpired portion of their sentences.