SANUMAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by 28 persons against convictions and sentences by the learned Sessions Judge of Gorakhpur. The facts are as follows: On the 4 of March 1920 two Inspector in the Excise Department in Gorakhpur, Babu Baleshwar Prasad and Babu Murli Dhar, went out on ekkas to search certain houses in a village a few miles from Gorakhpur, having received information that illicit liquor was being distilled. For excise peons followed them on foot; after an interval there same on foot another excise peon and four constbles. The party collected at a village called Gularia at about 2 p.m. Thence they went to the village Khutahan, where the search was to be made. They reached Khutahan about 3 P.M. In Khutahan they searched the houses of Sarju Kewat, Bisheshar Kewat, Mahabir Kewat, Manohar Kewat, Musammat Sonkali Kewat and Jagarnath Kewat, As far as I have been able to ascertain, Khutahan is a village in a forest tract or ex-forest tract in which the cultivators are almost entirely Kewats. Kewat cultivators in such a village have a low standard of intelligence, and are usually ignorant and excitable people. The day on which the search was made was shortly before the Holi festival. Kewats are a drinking caste and would ordinarily consider the Holi festival not properly performed if the festivities did not include drinking alcohol. The search resulted in the discovery of something under six bottles of illicit liquor and a few of the rough utensils that are used by villagers for the distillation of illicit liquor. It would seem obvious from the fact that very little liquor was found and that the implements for distilling were most primitive, that the villagers were distilling illicit liquor not to sell it bus to drink it themselves, probably at the Holi. All the articles discovered were put in charge of Murli Dhar, Inspector Jagarnath, Manohar and Musammat Sonkali were apprehended. Baleshmar Prasad obtained a eart. The articles captured were placed on the cart. The party, consisting of two Inspectors, five Chaparasis and four constables, were on the point of leaving Khutahan with their three prisoners and the cart, between 6 p.M. and 7 p.m., when a fire broke out in the cattle-shed of Jagarnath the man who had been arrested. The villagers collected. Murli Dhar and some of his party assisted the villagers in patting out the fire. The fire was not serious; it did not spread and was soon extinguished. By this time over 200 villagers had collected on the spot. The fire having been extinguished, the party moved on with their prisoners and the cart. They had not gone 50 yards when a woman, who has not been identified, called out: "is this village without a Zemindar that these persons rob the village and set fire to it?" Villagers then collected from all sides and attacked the Excise Inspectors and their party. With the exception of the Excise Inspectors every one else ran away. The prisoners were left by themselves and subsequently made good their escape. The two inspectors were rather severely handled. According to the medical evidence they each received grievous hurt, but their injuries were not of a dangerous nature. They were soundly thrashed with lathis and underwent a most unpleasant experience, but their lives were never in any danger, and on the whole, they were fortunate in getting off as lightly as they did, considering the fact that they were amongst a crowd of ignorant and excited villagers who were suffering from what appeared to them to be a real grievance, though it was not a grievance which the law can recognise. It seems to me palpable that the villagers were intensely alarmed at the arrest of Musammat Sonkali. They were undoubtedly extremely annoyed at the raid. They had not lost much in the way of illicit liquor, only some six bottles, but they were probably apprehensive that further searches would be made in the village. It is extremely probable that there were more illicit stills than the stills which the Excise Officers had discovered. The main causes for the violent action of the villagers were, however, almost certainly the arrest of the woman and the arrant of the two men. The Excise Officers undoubtedly had the right to make a search and the right to arrest these persons, but whether they showed discretion in their action is another question. In the course of the attack Baleshwar Prasad says, he was robbed of a gold ring. After attacking the two Excise Inspectors the villagers took them prisoners, Behari Singh Zemindar of the adjoining village of Phulwaria, came up and remonstrated with the crowd. By this time the five Excise peons and the four constables had come back. Some of them had received some injuries in the fight. The crowd took the two Inspectors to the Zemindar's chhaoni in Khutahan, saying that they were dacoits. Neither the Zemindar nor any of his servants were there. Behari Singh besought the crowd to let the Excise Officers go, saying that he would stand security for their appearance. The Inspectors were then released and went back from the chhaoni with the peons and constables to Phulwaria and thence to Gorakhpur, which they reached at 2 A.M.

(2.) The fight had taken place in bright moonlight. Thirty-five persons were committed for trial on charges under Secs.395 and 332, Indian Penal Code. The learned Sessions Judge on receiving the case proceeded to increase and amplify these charges. In the end be had framed nine charges in all, as is shown by the charge-sheets. From his judgment he had framed ten. The tenth charge was under Sec. 392 against Birbal for taking Inspector Baleshwar Prasad's gold ring, I have been unable to find this charge. The learned Sessions Judge arrived at no finding upon it. In the end he convicted twenty-eight persons who are the persons now appealing before me. Leaving but persons who were acquitted, I shall consider the charges brought against the 28 appellants. All were charged under Section 395, Indian Penal Code. The most impressive charge was thus one of dacoity, The learned Counsel for the appellants does not question the propriety of this charge on the facts. The dacoity was, however, of the most technical character. The charge amounts to this: The villagers wanted to get the illicit liquor and the other articles captured back. They formed in force to effect this purpose. The recovery of the articles being a technical theft and, violence having been used, a technical robbery arose committed by more than five persons, hence there was a charge of dacoity. The charge of dacoity in itself is a good charge. I think it necessary, however, to emphasize the fact that the dacoity was absolutely technical. I wish to safeguard these appellants whose convictions have been upheld from entries in the badmashi register as ex dacoits. They are not ex- dacoits in the ordinary sense of the word. At the present moment there are a large number of real dacoities being committed in this Province, and it is most desirable that real dacoits should be distinguished from technical dacoits in the minds of the Police authorities. The next two charges which were framed against all these persons were under Secs.333 and 332, Indian Penal Code. Then followed a charge under Section 225 against all the accused, with the exception of Jagarnath, Manohar and Musammat Sonkalia, of having rescued these three persons and a charge under Section 224 against these three persons for having escaped from lawful custody. There then followed a charge under Section 342 against 18 of the accused for having illegally confined the Excise Inspectors, and against the Zemindar under Section 342/149 for being responsible for the said illegal confinement. Against four of the accused there was a further charge under Section 436/193 of having set fire to the cow shed with the intention of fabricating false evidence against the Excise Inspectors and their party. I wish to do full justice to the trouble which the learned Sessions Judge has expended in trying the case and the great care with which he has treated every detail, but I do not consider that any useful purpose was served by this multiplication of charges. To all intents and purposes the case against these accused persons was a very simple one. They had attacked the Excise party and beaten them severely. That was the main charge and the only important charge. Everything else was immaterial. The learned Sessions Judge recognized this fact when he directed all the sentences to run concurrently. When the sentences are examined, it will be seen that with one exception every person has been convicted under Section 333 and that the heaviest sentences have been passed under that Section. All the other sentences run concurrently, except in the case of the person who was not convicted under that section. Apart from the provisions of the present Criminal P. C. on the subject of joinder of charges and joint trial of persons, there are general principles of universal application with regard to trials. These principles were well laid down by a Bench of the Bombay High Court in Queen-Empress V/s. Fakirappa 15 B. 491 : 8 Ind. Dec. (N.S.) 333. The head-note indicates them sufficiently. It is as follows: if, in any case, either the accused are likely to be bewildered in their defence by having to meet many disconnected charges, or the prospect of a fair trial is likely to be endangered by the production of a mass of evidence directed to many different matters and tending by its mere accumulation to induce an undue suspicion against the accused, then the propriety of combining the charges may well be questioned.

(3.) This decision was under the old Code. The principles, however, are equally good under any Code. I do not go so far as to say that in the present case the accused were actually bewildered in their defence by having to meet many disconnected charges, or that a fair trial was not obtained, but I think that the learned Sessions Judge incurred a distinct danger of spoiling the prospects of a fair trial owing to his desire that every single aspect of the case should be brought out in the charge-sheet and I recommend him in future not to take a similar risk. Nothing could be gained by the Procedure and a very great deal could have been lost by it. The learned Counsel for the appellants has attacked the trial as illegal. His case is that neither under the provisions of Section 234 or 235 or 239 of the Criminal P. C. is the trial justified. In order to decide this plea, it is necessary for me to recapitulate the facts, which form the basis of the charges against the accused persons. The allegations of the prosecution. as accepted by the Committing Magistrate, were as follows: It was stated that certain Excise Officers, having made a seizure of articles which it was alleged were being used for the purpose of illicit distillation, and apprehended certain persons as being in possession of these articles, were taking the articles and escorting these persons from the village where the articles had been found to the head-quarters of the Excise Department. It was alleged that while they were so doing, a large number of adherents of the apprehended persons collected and that the following events followed: (1) A cow-shed was set on fire. The suggestion here was that the Excise Officers might be charged with having committed mischief by fire. (2) The Excise Officers were beaten severely and otherwise maltreated. (3) The articles seized were recovered. (4) The prisoners were rescued, (5) Some of the Excise Officers were wrongfully confined.