GANGA SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in criminal revision on behalf of six persons who were sentenced by a Magistrate under Secs.147 and 452, Indian Penal Code to 3 months rigorous imprisonment and Rs. 50, fine. On appeal the lower Court altered the conviction to one under Section 143, Indian Penal Code, and set aside the sentence of imprisonment and maintained the sentences of fine. The case for the prosecution was that the accused objected to the complainant, Udai Singh, employing a Brahman called Khiali Ram as his priest and because they had out-casted Khiali Ram, the accused in a body forcibly entered the house of the complainant in order to overawe the complainant and threatened to beat the complainant and complainant ran away. The first ground which is argued was No. 3 in revision that the joint trial of the applicants along with the accused in the cross-case filed by Ganga Singh was illegal as prosecution evidence in one constituted the defence evidence in the other. There were these two cross-complaints before the Magistrate, one by Udai Singh and the other by Ganga Singh. The Magistrate has stated that the prosecution in the one case is the defence in the other. The evidence produced by the parties does both for the prosecution in one and defence in the other case excepting that Udai Singh, etc., have examined three more witnesses in defence besides the nine witnesses examined as prosecution witnesses. Ganga Singh and others have examined six witnesses both for the prosecution purposes and in their defence. The counsel in each case agreed to this course. It is not alleged for the applicants that there was any irregularity in the recording of the prosecution evidence in the present case or that there was any defence evidence which they desired to produce and which was not allowed. Their objection merely is a technical one. Learned Counsel relied on the case of Allu v. Emperor 1924 Lab. 104 where it was held that any irregularity of this nature could not be cured Under Section 537, Criminal P.C. No other ruling was produced in support of the contention. On the other hand it has been held by a Bench of this Court in Sukhai Ahir V/s. Emperor 1928 All. 593 in a similar case that it was not necessary for the Court to interfere unless it were shown that the accused were prejudiced by the procedure. Similar rulings were given in Queen-Empress v. Chandra Bhiniya (1893) 20 Cal 537. There was also a case reported in Madat Khan V/s. Emperor 1927 P.C. 26 in which there were two trials but the evidence for the prosecution was similar to a substantial extent in each case and each party was a witness against the other. The High Court of Lahore gave one judgment and the Sessions Court had also given one judgment. Their Lordships of the Privy Council found that although technically it might have been better to keep the evidence entirely distinct and to have delivered two separate judgments, no injustice has followed from what was done. Therefore there was no interference. Following this ruling, I consider that it has not been shown in the present case that there was any prejudice to the case for the accused. I consider that no ground for interference in revision has been made out on this point.

(2.) The next point which was argued was in regard to the charge which is as follows: That you on or about 19 May 1934, at village Pastora War with the common object of overawing Udai Singh who had sent for and employed Khialiram, a Brahman, against your wishes at Puja that be offered that day, forcibly 1 entered the house of Udai Singh and there created a riot and thereby committed an offence 1 punishable under Secs.147 and 452, I.P.C. and within my cognizance.

(3.) The learned Sessions Judge was under the impression that the Magistrate intended to make charges under two sections and he made comments on the form of the charge. The ground of revision is No. 4 that the charge did not disclose the common object. In Section 141 (third), Indian Penal Code, it is, laid down that a common object of an unlawful assembly may be to commit any mischief or criminal trespass or other offence. The prosecution evidence shows that there was a common object of the accused persons to commit the offence of Section 452. Indian Penal Code - house trespass - after preparation for hurt or assault, consider that the charge sheet is intended to show that the offence of riot was committed with a common object of committing the offence of Section 452, Indian Penal Code. I do not consider that the charge sheet is in any way defective. I do not think that the Magistrate intended to frame separate charges under each section and he has not in fact framed separate charges. Some further comments were made by the Sessions Judge on the use of the word "overawe" and he considers that the word "overawe" can only be applied to Section 141 (first) where the overawing is of certain branches of Government, etc. But the word "overawe" is tantamount to the word "intimidate" which enters into the definition in Section 441, Indian Penal Code, of the offence of criminal trespass which is involved in the offence of Section 452, Indian Penal Code. The use of the word therefore was correct; I find nothing in this ground.