BHAGWAN DAS Vs. EMPEROR

JUDGEMENT

(1.) The seven appellants have been convicted by the learned Sessions Judge of Budaun of an offence under Section 302, Indian Penal Code, and Bhagwan Das has been sentenced to death and the other six appellants to transportation for life. They have also been convicted of offences under Secs.147, 325 and 323, Penal Code, and sentenced to rigorous imprisonment for two years and one year, respectively, under those sections. They have all appealed against their convictions and sentences, and the record has been forwarded by the Sessions Judge for confirmation of the sentence of death passed on Bhagwan Das. The incident in the course of which Chhote Lal was killed on 26 May 1934, has been described by the witnesses as follows : Chet Ram, in the course of executing a decree against Kallu, his judgment-debtor, attached a house, and Mullu filed an objection to this attachment which was to have been heard in the Court of the Munsif of Budaun on 26 May. On that date the decree-holder, Chet Ram, Chhote Lal, the deceased, Ram Chander and Kallu Ahir with a Civil Court peon. Gulzari, and the Patwari, Ram Chander, were going from their village to Court. All of them were seated in a bullock cart, except, the Patwari who is said to have been walking behind the cart. It was early in the morning, and as they went along they saw a bullock cart on the road in front of them and eight persons, standing beside it. The bullock cart is described as going along very slowly. Among the persons who were with, the bullock cart in front of them were Mullu, the objector in the execution case, and Kallu, the judgment-debtor.

(2.) As to what happened after this, we have two different accounts from the prosecution witnesses: the story told by Chet Ram, Ram Chander Brahman and Kallu Ahir, which is the least favourable to the defence, and the story-told by Nur Muhammad and Rafi Uddin, who were undoubtedly in the bullock cart which was accompanied by the accused persons, and who have given a version of the story which in most respects supports the story far the prosecution. According to Chet Ram's story, when he saw the bullock cart of the opposite party in the way he told the driver, Kallu Ahir, to give that cart a wide margin in passing. When his cart drew abreast of the other cart, the appellant BhagwanDas without any provocation whatever struck a lathi blow on Chhote Lal's head, on which the other accused persons attacked all those who were in Chet Ram's bullock cart. The Patwari and the peon ran away, but Chet, Ram, Kallu Ahir and Ram Chander, son of Moti, were all beaten. Chhote Lal was killed, on the spot, and a report was made in the thana some five males away at 9 a.m. This report was made by Chet Ram, and agrees with the evidence which lie afterwards gave in Court. The story told by Nur Muhammad and Rafi Uddin however is that when Chet Ram's cart drew abreast of the other cart, Chhote Lal told his servant, Kallu Ahir, to give that cart a wide berth, and he also told the accused with an abusive implication to get out of the way, on which Kallu Brahman, appellant, also-abused Chhote Lal. Chet Ram and Chhote Lal then told their driver, Kallu Ahir, to beat, the accused, and a lathi fight started. Neither Nur Muhammad nor Rafi Uddin stated in examination-in-chief in the Sessions Court that Kallu Ahir actually struck the accused when Chhote Lal told him to do so; but in cross-examination each of them stated that the first blow in the fight was delivered by Kallu Ahir.

(3.) As regards the fight that followed, we have already stated that Chhote Lal appears to1 have been killed on the spot. The evidence of the Civil Surgeon who conducted the post mortem examination on the evening of the same clay shows that Chhote Lal had received eleven injuries and that his skull had been smashed to pieces. Chet Ram and Ram Chander Brahman had received seven and six injuries respectively, Chat Ram having had one of his fingers broken, but all the other injuries were simple, and evidently caused by lathis. On the other side we only find that three slight injuries were caused. The fight therefore was, a very one sided one, and in fact as Chet Ram's party consisted of only four inside the cart, including the driver, after the Patwari and peon had; run away, while the accused party consisted of seven or eight excluding Nur Muhammad and Rafi Uddin, who were with the party, but who did not join in the fight, it is, somewhat curious that Chet Ram adopted such an aggressive attitude. Even if Chet Ram's statement is to be accepted, it is clear that Chet Ram s, party had to pass the other cart and had every intention of pushing past, it, and they must have known that the cart was accompanied by the opposite party, the judgment-debtor and the objector and their friends, but they made no attempt to steer clear of this formidable party, as they might, easily have done if they had wished to avoid an encounter. According to the statements of Nur Muhammad, and Rafi Uddin, Chhote Lal was decidedly aggressive, and must be held responsible for having started the fight. The learned Sessions Judge has accepted the more extreme version of the prosecution evidence, that is to say, he has believed the statement of Chet Ram rather than the statement of Nur Muhammad, and he has discussed the incidents of the fight from that point of view, and consequently be has come to the conclusion that all the appellants are guilty of murder and that Bhagwan Das, who started the fight by striking Chhote Lal on the head, must, be hanged. We have been through the whole of the evidence and we have come to the conclusion that the account of the incident which has been given by Nur Muhammad, and Rafi Uddin, is, much more likely to represent the true course of events. We have already mentioned that Chhote Lal and his party evidently had no idea of avoiding the others and were quite determined to push past them and it is also certain that as they pushed past them, Chhote Lal made some remark to his driver. As to this, both Nur Muhammad and Chet Ram agree.