Mehr Chand Mahajan, J. - (1.) THIS is an appeal by special leave against an order of the High Court at Patna, affirming the conviction of the appellant by the Additional Sessions Judge, Arrah, under s. 147, of the Indian Penal Code.
(2.) THE appellant was charged along with 13 others with having been a member of an unlawful assembly "with the common object of dispossessing one Chulhan Tewari (the complainant) and assaulting and murdering one Nasiba Ahir and others" and with having committed, in furtherance of that common object, offences under Sections 302, 326 and 147 read with s. 249 of the Indian Penal Code. The prosecution case was that the appellant led a party of 60 or 70 men armed with a gun and lathis to the scene of occurrence with a view to dispossess the complainant of the land bearing survey No. 520 appertaining to Khata No. 59 in village Sikaria, which the complainant claimed to belong to him. As the mob came upon the land to complainant remonstrated against their action, when the appellant fired three shots from the gun in his hand causing injuries to Nasiba Ahir, Bhola Ahir and Lalmohar Ahir and when they fell down the mob dispersed. The injured men were then taken to hospital where Nasiba Ahir denied soon after. The appellant and thirteen others who were identified were accordingly charged with having committed the offences mentioned above. The Additional Sessions Judge of Arrah who tried the accused found that, though the apparent title to the land was in the appellant and another, its possession had long been disputed, and that it was "needless to make much of possession because neither party in my opinion can justly claim the right of private defence to property." After discussing the evidence of the eyewitness and other materials before him he found that the gun was fired by the appellant's party while lathis or brickbats were used by the complainant's men, and as a result of such attack and counter -attack one man was injured on the side of the appellant while three men including the deceased Nasiba Ahir who were passers -by received gunshot injuries. The learned Judge rejected as unreliable the evidence of the prosecution witness to the effect that the appellant held the gun and fired the shots. But as the appellant's party went upon the land armed with the gun and as the persons injured were not of the complainant's party, the learned Judge convicted the appellant under the second part of s. 304 read with s. 149 and sentenced to rigorous imprisonment for a period of five years. Though he found the appellant also guilty of rioting under s. 147 be thought that no separate sentence was called for under that section. The thirteen others who were charged along with appellant were held not guilty in respect of any of the charges, as they were not properly identified as having taken part in the unlawful assembly, and were acquitted.
(3.) THE appellant appealed to the High Court and Manohar Lal J., who heard the appeal agreed with the trial Judge that the question as to who was in actual possession of the plot at the time of the occurrence was immaterial. He held that the party of the appellant were members of an unlawful assembly and "could not plead any right whatsoever to come there and assert their possession by show of force". The learned Judge agreed also with the finding of the trial Court that the appellant was not proved to have been armed with a gun or to have fried the shots, but he thought, in view of that finding, that "it is impossible to convict Kapildeo Singh for an offence under s. 304,149, I.P.C., when it is not the prosecution case that any other member of the mob led by Kapildeo Singh inflicted the gunshot injury on Nasiba Ahir". The learned Judge, however, was satisfied that the appellant was in the mob and was consequently guilty under s. 147 I. P. C. He accordingly set aside the conviction and sentence under S. 304 read with s. 149 but maintained the conviction under s. 147 and sentenced the appellant to two years' rigorous imprisonment, the trial court not having imposed any separate sentence under that section.;