KANA Vs. STATE

JUDGEMENT

(1.) THE petitioners are fourteen in number. All are residents of Chohankhedi. They were challaned by Khudel Police under Sections 325, 147 and 149, and were convicted only under Section 147 by the Sub-Divisional Magistrate, Second Class, Paragana Indore. Petitioners Govinda, Mangya, and Budhya were fined Rs. 50/- each. The remaining applicants were sentenced to one month's rigorous imprisonment each and Rs. 50/- fine each. They appealed to the Sessions Judge who dismissed their appeal so far as their conviction was concerned but he allowed the appeal (except in the case of Kana, appellant) so far as the sentence was concerned and set aside the sentence of imprisonment but maintained the fine imposed on each applicant. Kana's appeal was dismissed and his sentence was also maintained. Kana and others have come in revision to this court; and, Mr. Bharucha contends, firstly, that the distinction in the sentence made by the Court in Kana's case and in the case of others cannot be sustained from the legal point of view.

(2.) IN my opinion, this contention is well founded. The prosecution story in brief is that on 18th August 1949 the applicant Kana along with others, 13 accused and 10 ploughs, went over to the field of the complainant, Saligram, assaulted him, and his servants and took possession of the field unlawfully. The main evidence against the accused is that of P. W. 1 Saligram the complainant. I have gone very carefully through his deposition but he does not say anything against Kana. (After narrating the statement of this witness the judgment proceeds :) There is not a single word indicating that Kana assaulted anybody or abused anybody or did anything even to enforce his right in the field. There is not a single witness who deposes anything against him; and under these circumstances, I agree with Mr. Bharucha that Kana cannot be singled out for imposing a punishment more severe than that imposed on others.

(3.) THE crucial point in the case is whether there was any unlawful assembly or not. On behalf of the defence, two witnesses, Patel of the Village Chensingh D. W. 1, and Jagirdar Ramchandra Shastri, D. W. 2, have been produced and a document Ex. D/8 has been proved. From this evidence, it transpires that the field in question was formerly in possession of one Shankar Patel. After Shankar's death it was given by the Jagirdar to Saligram complainant, and after one year the Jagirdar gave it to Kana, applicant, whose son had been adopted by Shankar before his death. It is not disputed that the land belongs to Jagirdar and the Jagirdar had power to give it to anybody for a year. The main question then is whether Kana had the right or not to take his plough to the field in dispute. The Patel Chensingh deposes that as soon as he received Ext. D/8 from the Jagirdar, through Kana, then he sent for four Panchas and in the presence of the Panchas he told Shaligram that after the receipt of Ex. D/8 he should not plough the field in question. According to the Patel's deposition Shaligram had agreed not to plough the land at all. And after that, Kana and others reached the field in dispute with their ploughs. If the deposition of Patel Chensingh is true it will mean that Shaligram had acquiesced in his dispossession of the field in dispute; and, once he had acquiesced in his own dispossession, he had no right to stop the ploughs of Kana and others who had the Jagirdar and Patel's authority with them.