SURAJ DUSADH Vs. EMPEROR

JUDGEMENT

(1.) This is an application on behalf of ten persons who have been convicted in connection with an occurrence that took place over a bundh in the river Batray. It appears that this river which flows from south to north is divided in village Hansa by a pucca bundh which is constructed for some distance along the middle of its bed. The water to the right hand side of this bundh is diverted by means of a pyne to village Mathpa, where some of the prosecution witnesses reside. The water to the left side flows on and irrigates the lands of villages further down the river from some of which the applicants come. By an agreement between the parties each party may level the bed of the river at the southern extremity of the pucca bundh in order to facilitate the flow of the water. Shortly before the present occurrence some people from Mathpa put up a bundh which was an extension of the pucca bundh to the south, and the lower appellate Court came to the conclusion that this bundh was probably not in accordance with the agreement and intended to interfere with the right of the applicants to take water by the left side channel. The result was a gathering on both sides and an apprehension of a breach of the peace. The Sub-Inspector visited the spot, and deputed a constable, a daffadar and some chaukidars to prevent a breach of the peace and maintain the state of things as it was; he also submitted a report for action under Section 144, Criminal P.C. On the next morning, however, being 21 Octoberlast, a large mob of persons including the applicants is said to have come to the spot armed with various weapons, and to have cut the bundh in defiance of the police whom it threatened to assault, also caused 15 slight injuries to various persons who were present on the other side. On these allegations the applicants were charged under Secs.147 and 152 read with Secs.149 and 430, I.P.C. The defence denied the occurrence as alleged by the prosecution but both the Courts found that all the charges were proved against all the applicants and convicted them accordingly. In this Court the chief point of law that was urged related to the charge under Section 147, which is as follows: That you were members of an unlawful assembly with the common object of cutting the Mathpa bundh in the river Batre and in prosecution of the same common object committed the offence of rioting.

(2.) Mr. Yunus contended that on this charge the applicants had only to show that the people of Mathpa had no right to put up the bundh in which case they could not have been found to have been guilty under the charge. He suggested that the charge should have included the words "by force or by show of force," but the suggestion of force is contained in the word "rioting" which is included in the charge, and the charge as a whole must be interpreted to mean that the mob cut the bundh in circumstances making them guilty of rioting. Both the Courts have found, on grounds which cannot be assailed, that the applicants were members of a mob which instead of having recourse to the proper authorities and in defiance of the police, cut the bundh, which had been constructed prior to the occurrence and thereby committed the offence of rioting. It was suggested that the applicants were actually misled by the form of the charge, but this suggestion is not supported by the elaborate written statement which they filed in the lower Court. We are satisfied that the charge was adequate and that the applicants were not misled, and we find no illegality in the conviction for rioting. The sentences also are not excessive. It was argued that the conviction and sentence under Section 430, I.P.C., cannot stand as this offence is stated the common object of the riot charge. Also it is doubtful whether such a conviction is maintainable when it has not been found that the prosecution side had a right to the water which they were taking by means of the bundh. We accordingly allow the application so far as the conviction under Section 430 relates.

(3.) It was also argued on behalf of the petitioners Ajab Narain Singh and Mahadeo Panday, who are said to have taken a leading part in the occurrence riding on ponies, that none of the police witnesses say that they saw any person there riding on a pony. The trying Court disbelieved the evidence of the identifying witnesses as to the part taken by these two applicants in the occurrence, and this finding was not disturbed by the first appellate Court. When the trying Court has disbelieved almost everything that had been said by the identifying witnesses regarding these two applicants, we do not find that there was any sufficient basis for their conviction. The result is that we allow the application of Ajab Narain Singh and Mahadeo Pandey and acquit them under all the charges. The conviction under Section 430 is also set aside against all the applicants. The rest of the application must fail. Agarwala, J.