GHYASUDDIN AHMAD Vs. EMPEROR

JUDGEMENT

(1.) The four appellants were tried by the Sessions Judge of Purnea on a series of charges of which one charge under Section 148, I. P. C, was common to all the accused while individually Ghyasuddin was charged under Section 302 for the murder of Jainarain. Muhammad Ishaque was charged under Section 324, I. P. C, for causing hurt to Pearey Mohan, and the other two appellants under Section 324 for causing hurt to Degdhu Singh. There was a charge against appellants 2 to 4 under Section 302 read with Section 149, I. P. C, in respect of the killing of Jainarain by a member of the unlawful assembly which included these accused persons. The common object alleged in the rioting charge as framed by the committing Magistrate was: to prevent Jainarain Singh from reaping his tori crop and to assault Jainarain and his party.

(2.) For some reason which is not explained at the trial the words, "to assault Jainarain and his party" were deleted at the instance of the Public Prosecutor. The charge was not an improvement. It opened the way for the defence to contend, as it has been contended before us at length, that the common object failed and the accused were entitled to be acquitted of the charge of rioting unless the prosecution could affirmatively establish that the crop was sown by Jainarain. We shall deal with that contention in due course; but there would have been no room for it at all had the learned Sessions Judge allowed the charge to stand as originally framed.

(3.) The defence on the merits was twofold: first, that the crop was not grown by Jainarain but by Udro Singh, a tenant of Ghyasuddin, and that though in defence of his rights an assembly of men did collect, whatever they did was done in the exercise of the right of private defence. Secondly, that none of the appellants was a member of that assembly or took part in the occurrence. Defence evidence was given on both points.