AMBIKA THAKUR Vs. EMPEROR

JUDGEMENT

(1.) The appellants have been convicted by the Additional Sessions Judge of Shahabad and sentenced as follows: Seven more persons tried along with the appellants were acquitted. Lalohand Thakur (No. 10 above) was also charged under Section 302, I.P.C., with causing the death of one Ramnarain, and the remaining appellants under Section 302/149, I.P.C., in respect of that murder. They were acquitted of these charges. Rajdayal Thakur who was further charged under Section 324, I.P.C., with causing simple hurt by a dangerous weapon to the same Ramnarain was acquitted of this charge. Beni Madho Thakur, Kawal Thakur alias Ram Kawal Thakur, Jamuna Prasad Thakur, Jagannath Thakur and Chaman Thakur were similarly charged under Section 324, I.P.C., the first three with causing simple hurt by dangerous weapons to one Lalmohar Rai and the last two to one Ujagir Rai. All of them were acquitted of this charge.

(2.) One of the accused, Guraman Ahir (acquitted), was charged (among other Sections) under Section 436, I.P.C., (arson) with setting fire to a hut, and Ambika Thakur and Rajdayal Thakur were charged with abetting that offence under Section 436/114, I.P.C. These charges were withdrawn during the trial. The trial commenced with five gentlemen as jurors in respect of the charges relating to arson and as assessors in respect of the remaining charges. "When the charge of arson was withdrawn, the trial proceeded with the same gentlemen as assessors only. All of them were of opinion that the accused were not guilty of any offence. The first informant, Ramkewal Rai, has presented an application in revision praying that the appellants be convicted of the offences of which they were acquitted by the learned Additional Sessions Judge or, in the alternative, that their sentences be enhanced. We postponed the passing of orders on this application till the appeal had been heard. Sir Manmatha Nath Mukherji who appeared on behalf of the appellants intimated to us that in case we decided to issue notice in the revision application, he would accept it so as to make it unnecessary to send out notices to the appellants personally. After the conclusion of the hearing of the appeal we called upon Mr. Naqui Imam, who was then appearing on behalf of the appellants, to take notice of the revision application and show cause, if any, why it should not be allowed. We heard Mr. Naqui Imam in this connexion and will deal with that matter in this judgment after disposing of the appeal itself. The occurrence in question took place on the morning of 5 February 1938 over the possession of some diara lands which had alluviated from the river Ganges. Such occurrences are not uncommon; when a large area of land alluviates, there is generally a struggle for possession, and all who can by any stretch of imagination do so lay claims to the land and riots attended with murder often take place. The present is one of a series of such riots between the parties.

(3.) Before we deal with the facts of the riot, it is necessary to describe the position of the disputed land. In doing so, we must clear up some confusion (which has been noticed before now) in the directions, (north, east, south, west) given by the witnesses and mentioned in a number of documents produced in the case. The general course of the river Ganges in the district of Shahabad is from west to east along the northern border of the district, but at the particular place where the present occurrence took place the Ganges has taken a turn, and runs from north to south on the east of the lands involved in the case. Notwithstanding this, the Ganges is locally regarded as lying to the north; and the consequent shift is reproduced both in the oral and in the documentary evidence, the popular directions being 90 degrees ahead of the true or magnetic directions. The learned Additional Sessions Judge in his judgment has used the popular directions, with the result that his north is the magnetic east, his east the magnetic south, his south the magnetic west and his west the magnetic north. We prefer to use the magnetic directions, which were followed in the cadastral survey map and are thus more convenient for our purposes. There are four mauzas lying one after another from north to south, to the west of the Ganges in this locality. The northern most is Rajapur, a Government Khas Mahal, south of it is Dubha, next comes Gangauli, and the southernmost is Kharatanr, the last three belonging to the Maharaja of Dumraon. Each of these four mauzas has its mal lands, that is, lands which appertained to it from the beginning and, so far as Dubha, Gangauli and Kharatanr are concerned, were permanently settled with the Maharaja of Dumraon. Each of them also has taufir (accreted) lands which have become attached to the main lands of the mauza by alluvion. A portion of these taufir lands was surveyed at the time of the cadastral survey in 1908-09, doubtless because it had by then become firm and was under cultivation. The rest of the taufir lands were not surveyed then, and are known as "unsurveyed," though the lands of Dubha taufir have been surveyed in 1935, and a Eecord of Eights prepared. It is the taufir land of Dubha which is the subject-matter of the riot in the present case, that is, the land which accreted to the main lands of Mauza Dubha and was not surveyed in 1908-09. East of mauzas Dubha, Gangauli and Kharatanr, we have Shivpur (or Sheopur) Diara lying in the District of Ballia in the United Provinces, some of the litigation, to which we shall have to refer, has thus been in that district.