JASIMUDDIN SARKAR Vs. EMPEROR

JUDGEMENT

(1.) The appellants before us were committed to take their trial in the Sessions Court on a charge under Section 147, I. P.C. There was a further charge under Section 304, I. P.C., against appellants 1, 2 and 3 and a charge under Section 304 road with Section 149, I. P.C., against the rest, i.e., appellants 4 to 8. The jury by a majority of three to two returned a verdict of guilty against all the appellants under Section 147, I. P.C. They also by a majority in the same proportion found appellants 1, 2 and 3 guilty under Section 325, I. P.C., and appellants 4 to 8 not guilty under Section 304 read with Section 149, I. P.C. The learned Sessions Judge accepted the verdict of the majority of the jury and sentenced the appellants to various terms of imprisonment and in addition thereto he also imposed fines of various amounts. Against this conviction and sentence, the present appeal has been preferred.

(2.) On behalf of the appellants, Mr. Talukdar has taken several points before us. One of the main points which Mr. Talukdar has argued relates to the question of possession of the land, in respect of which the occurrence took place on the day of the occurrence. The land in dispute is said to be chakran land of one Purna Mali held in burga by two persons named Darogali and Maniruddin. These latter are alleged to have hold the land under a registered kabuliyat which is Ex. 4 in the case. It appears that, early on the morning of 15 March 1928, these two persons Darogali and Maniruddin along with six other men went to plough the land in question. After they had ploughed about a quarter of the land, a crowd of about 150 to 200 persons came on with lathis and halangas from the west side. The leader of the crowd forbade the complainant and his men from ploughing the land. The complainant's party refused to comply with the demand of the crowd with the result that the complainant's party were attacked by several of the crowd and in course of the fight which ensued a person named Alamdi who belonged to the complainant's party was injured and another person named Mahmudali was also injured on the head. It is alleged that the injuries inflicted on Mahmudali were caused by the accused Jasim, Foyez and Tomij and two other accused Atab and Moyez. The complainant's party then ran away but Mahmudali-the man who had been grievously wounded-was detained by the party of the accused. The first information was lodged at the Serajgunge Thana by the complainant Darogali on the same day, namely 15 March 1928. The Sub-Inspector recorded the first information and reached the place of occurrence at about 12 noon and it is said that, when he appeared on the scene, he saw some ghars or huts being erected on the land and at the sight of him some 50 men ran away. The matter was further investigated by the police and ultimately a charge sheet was submitted. Before the magisterial enquiry was taken up, a cross case was instituted by Jasim. Both the cases were heard by the same Deputy Magistrate, Mr. S. C. Dutt. He convicted the complainant's party in the cross case and dismissed the complainant's case. Both the cases were then taken before the Sessions Judge and the latter ordered a fresh enquiry to be made into both the cases. It appears that in the cross case the complainant's party had been convicted and, at the time when the present Sessions trial was going on, there was an appeal pending against the order of conviction. As regards the case against the present accused, as indicated above, it was committed to the Sessions Court.

(3.) Mr. Talukdar's first point relates to the question of possession of the land in question on the day of occurrence. It does appear from the evidence on the record that, sometime before the date of the occurrence, there had been certain proceedings in connexion with the possession of the land before the settlement officer. The land used to belong to the father of Purna Mali. It was let out in burga. It appears that the landlord without reference to Purna Mali's father settled the land in question with certain prodhans of the villages including Jumon, the father of the accused Jasim. Thereafter there were certain proceedings in the criminal Court and in the end, Purna Mali got settlement of the lands in question from the zamindars. Then there was a registered kabuliyat executed by Darogali and Maniruddin which is Ex. 4 in the case in favour of Purna Mali and the land was given in burga to these people. Now the party of Jasim while the settlement operations were pending raised several questions before the settlement officer as to whether or not they were entitled to be in possession. They produced what is called a pattani likhan whereas the other side produced a document which according to the settlement officer showed that the landlord had agreed to lot out the chakran land in question in burga to the party opposed to Jasim. The settlement officer after a detailed inquiry cams to the conclusion that the plot in question which was Purna Mali's chakran land should be recorded in the khatian as let out to the party opposed to Jasim by the landlord because Jasim could not produce any convincing evidence other than what he has done before the kanungo, namely the pattani likhan. In this state of affairs the occurrence in question hook place, as is stated above, on 15 March 1928.