DILJAN CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The six appellants have appealed against the order of the trial court convicting them under Rs. 326/149, I. P. C. and sentencing them to two years' rigorous imprisonment and also convicting them under Section 147, Penal Code, and sentencing them to one year's rigorous imprisonment, with the direction that these sentences are to run concurrently. There were no convictions for the specific charges.

(2.) The prosecution case, in short, is that in village Chandna there is a water reservoir known as Burhawa Bandh. It is said that the raiyats of the village have a right to irrigate their lands with the water or this bandh and they have also got the right to take fish from it, though it is the Khas property of the landlords. It is the prosecution case further that in the month of Fagoon last at about 2 p. m., the appellants along with others came there in a mob led by Chahar Ali, variously armed, along with four fishermen. The fishermen began to catch fish from the bandh. Hanif was armed with a tangi and Gafoor was armed with a bow and arrows. Thakuri Singh and other villagers came there and asked the accused persons not to fish from the bandh because all the villagers had the right to fish in the bandh. An altercation followed between Thakuri Singh and Chahar Ali. It appears that at that stage only Thakuri Singh and Ganpat Singh had gone there. The appellants along with others ran towards them, and it is said Thakuri Singh and Ganpat ran towards the house of Shankar Singh the father of Ganpat for safety. In the Bari of Shanker Singh, Thakuri Singh was assaulted by Diljan, Basarat, Reaz Ali and Hanif. It is also said that some other persons were also assaulted and Gafoor hit Ganpat fatally with an arrow. Ganpat and Thakuri fell down at the spot. Unesbwar Mahto was also assaulted with lathis and some sharp cutting instruments. Some time after the parties wont to Deoghar by bus and there the fard-beyan of Ganpat Singh was recorded as also his dying declaration. On the basis of the fard-beyan the first information report was drawn up in the case. At Deoghar another fard-beyan was recorded on the statement of appellant Basarat, and a counter case was instituted. Investigation then followed; charge-sheet was submitted. The appellants along with others, who were acquitted in the court below, were sent up for trial, convicted and sentenced as stated above.

(3.) The learned Judge came to the finding, that the bandh in question belonged to Chahar Ali and his agnates in the sense that they had the right to fish in the bandh. Once this finding has been arrived at, and indeed this finding cannot be assailed because of the over-whelming evidence including documentary on the record which goes to support this finding, it is quite clear that the accused party were doing nothing but catching fish from the bandh having their right to do so. The learned Judge also did not accept the evidence of the prosecution regarding individual assaults. Hence there was no conviction for specific assaults. The trial Court, however, was of the opinion that the common object of the assembly has been established, and, therefore, these appellants having taken part in the occurrence were guilty of being members of an unlawful assembly. It was also of the opinion that as it has not been established that there was intention to cause death, it found these appellants guilty under Sections 326/149, I. P. C. In this case the common object was only to assault. The trial Court was of the opinion, that when two parties go to a spot armed and if a pitched battle takes place, then the parties are liable, and the principle of right of private defence does not apply. The learned Judge has referred to a decision of this Court in support of this view. I have looked that decision, namely, Saudagar Singh v. Emperor. AIR 1929 Pat 527 (A). I am, by no means, satisfied that this decision decides that which the learned Judge thinks. Be that as it may, there is a decision of the Federal Court on this very point. It seems to me that if persons go to a spot to defend their right, there is nothing unlawful in the act of those persons. Section 141. I. P. C., has laid down the definition of an unlawful assembly & in five clauses it is stated what are the elements required in order to make an assembly into an unlawful assembly. The requisites are that there must be five or more persons, and then the five clauses are mentioned in that section. If any one of those is found to be the common object of the unlawful assembly, then such an assembly must be deemed to be an unlawful assembly. In the present case, we are concerned with the fourth clause which runs as follows: