KAPILDEO SINGH Vs. THE KING

JUDGEMENT

(1.) This is an appeal by special leave against an order of the High Court at Patna affirming the conviction of the appellant by the Additional Sessions Judge, Arrah, under Section 147 of the Indian Penal Code.

(2.) The appellant was charged along with 13 others with having been a member of an unlawful assembly, "with the common object of dispossessing one Chulhan Tewari (the complainant) and assaulting and murdering one Nasiba Ahir and others" and with having committed, in furtherance of that common object, offences under Sections 302, 326 and 147 read with Section 149 of the Indian Penal Code. The prosecution case was that the appellant led a party of 60 or 70 men armed with a gun and lathis to the scene of occurrence with a view to dispossess the complainant of the land bearing survey No. 520 appertaining to Khata No. 59 in village Sikaria, which the complainant claimed to belong to him. As the mob came upon the land the complainant remonstrated against their action, when the appellant fired three shots from the gun in his hand causing injuries to Nasiba Ahir, Bhola Ahir and Lalmohar Ahir, and when they fell down the mob dispersed. The injured men were then taken to a hospital where Nasiba Ahir died soon after. The appellant and thirteen others who were identified were accordingly charged with having committed the offences mentioned above.

(3.) The Additional Sessions Judge of Arrah who tried the accused found that, though the apparent title to the land was in the appellant and another, its possession had long been disputed, and that it was "needless to make much of possession because neither party in my opinion can justly claim the right of private defence to property." After discussing the evidence of the eye witnesses and other materials before him he found that the gun was fired by the appellant s party while lathis or brickbats were used by the complainant s men, and as a result of such attack and counterattack one man was injured on the side of the appellant while three men including the deceased Nasiba Ahir who were passers-by received gunshot injuries. The learned Judge rejected as unreliable the evidence of the prosecution witnesses to the effect that the appellant held the gun and fired the shots. But as the appellant s party went upon the land armed with the gun and as the persons injured were not of the complainant s party, the learned Judge convicted the appellant under the second part of Section 304 read with Section 149 and sentenced him to rigorous imprisonment for a period of five years. Though he found the appellant also guilty of rioting under Section 147, he thought that no separate sentence was called for under that section. The thirteen others who were charged along with the appellant were held not guilty in respect of any of the charges, as they were not properly identified as having taken part in the unlawful assembly, and were acquitted.