RAGHUNATH Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Raghunath and six other persons who have been convicted under Section 304, Indian Penal Code. Two of the appellants, Kishan Sarup and Bishan Sarup, have been sentenced to 8 years rigorous imprisonment and the rest to six years.. The case for the prosecution, briefly, was that on 7 May 1932 Kishan Sarup and Bishan Sarup (who are zamindars and residents of Kanth) came with a number of men about 13 or 14 in all, to the village of Qasimpur, which is about 1 mile from Kanth, for the purpose of collecting subscriptions. They intended to collect subscriptions for the defence of one Raghunath, who was under trial before a Magistrate. The party came armed with spears and lathis. On arrival at Qasimpur they called for the Padhan named Girdhari, but he was not in the village. His brother Kanhaiya was then sent for and Kishan Sarup and Bishan Sarup demanded Rs. 15 from him as subscription towards Raghunath's defence fund. Kanhaiya Lal raised objections to paying the subscription and tried to go back into his house but he was followed up with abuse and Kishan Sarup struck him with a lathi. He fell down and shouted for help whereupon Bishan Sarup ran him through with a spear. This gave rise to a general fight between the villagers and the visiting party. Blows were given and received by both sides and after some fighting the visiting party left the village. Kanhaiya was taken to the Kanth hospital where he died the same day. The chaukidar made a report at the police station that evening upon information given to him by Ballu the nephew of Kanhaiya. In that report all the appellants are mentioned as being among the rioters who killed Kanhaiya and injured certain other persons. (Here the judgment considered, the first information report, evidence and the findings of the Sessions Judge, and concluded). We have carefully considered the evidence and the arguments which have been advanced on behalf of these two appellants, viz., Kishan Sarup and Bishan Sarup, by Mr. Kumuda Prasad, but we have no hesitation in agreeing with the trial Court that the two appellants were among the rioters and were the leaders. The other five appellants have not been shown to be connected with Kishan Sarup and Bishan Sarup; so it is not clear why they should have gone to Qasimpur along with those two persons for the purpose of extorting subscriptions. On the other hand, no enmity is alleged between the prosecution witnesses and any of these five appellants such as might induce the witnesses to name or identify these persons falsely. We are satisfied that these five appellants also did take part in the fight.

(2.) A question of law has been raised on the basis of the fact that the appellants have been convicted under Section 304, Indian Penal Code, only, and have not been convicted under Section 147, Indian Penal Code. The argument is that as the appellants were expressly charged with an offence under Section 147, Indian Penal Code, and have not been convicted of that offence, it must be assumed that they have been acquitted of the offence of rioting. As they have been acquitted of the offence of rioting, Section 149, Indian Penal Code, cannot be invoked for the purpose of establishing the joint responsibility of all the appellants for having caused the death of Kanhaiya. The appellants moreover cannot be held jointly responsible under Section 34, Indian Penal Code, as the finding is that they had no common intention of killing Kanhaiya. As none of the appellants have been found individually responsible for causing Kanhaiya's death, their learned advocate claims that they are all entitled to an acquittal. It appears to us that the learned Sessions Judge's finding is perfectly clear to the effect that the accused did become members of an unlawful assembly and that certain members of that assembly did use force and violence in prosecution of their common object, which was to extort subscriptions by force, and therefore they were all guilty of rioting. The learned Sessions Judge sums up his findings briefly as follows: I have no doubt what happened, Kishan Sarup Bishan Sarup, and a large body of retainers, the whole party armed with lathis and spears, appeared in Qasimpur and demanded subscriptions for Raghunath. They were refused and there was a fight. Kanhaiya was killed in the course of the fight, probably by Bishan Sarup, and that probably finished the fight.

(3.) He further observes: Of course these people did not come to the village intending to murder Kanhaiya Lal or anybody else. But they did come in considerable force and heavily armed, intending thereby to extract subscriptions from people who might not he moved by mere persuasion. I cannot assume that they failed to realise that resistance might be met with, and I cannot assume that they intended their armament for mere display, not for use if occasion called. Exactly how the fighting started I cannot say. But when a gang of armed men came to a village to levy money and a fight starts, it is absurd for them to suggest that they are using these arms in self-defence. And people armed with lathis who go to support others armed with spears must be supposed to realise that in the confusion of a fight their companions spears may inflict mortal injury, even though there be no positive desire of any single person to cause death.