- (1.) THIS is an appeal by five persons namely Kalyan, Ananda, Shankriya, Ram Kishen and Kanwara against the judgment of the Sessions Judge, Bundi dated the 3rd January, 1950. The first three appellants Kalyan, Ananda and Shankriya have been convicted under sec. 302 read with sec. 149 of the Indian Penal Code and sentenced to transportation for life. They have also been convicted under secs. 147 and 451 of the Indian Penal Code and sentenced to two years' rigorous imprisonment on each count. The sentences have however been ordered to run concurrently. The remaining two appellants Ram Kishen and Kanwara have been convicted under sec. 144 of the Indian Penal Code and sentenced to two years' rigorous imprisonment each.
(2.) THE occurrence relating to this case took place on the afternoon of the 10th August, 1948 in the District Bundi at Dablana and at the kanjar settlement which is two miles north of that village, kanjar settlement is the place where the kanjars who were treated as members of criminal tribes were settled. The prosecution story was that a few days before this occurrence, a theft had taken place at the house of one Madho Mina in another village called Deva-ka-khera. The residents of that village suspected that the kanjars of the said settlement had committed the offence and so they went there on the 9th of August, 1948 in order to recover the stolen property. A quarrel thereupon, arose between the minas of Deva-ka-khera on the one hand and the kanjars on the other side. It is said that the kanjars beat the minas and pursued them to the village Dablana. The people of Dablana village sympathised with the minas and they presented on the same day to the Collector, Bundi an application which is marked Ex. PK. At the same time they sent words to the residents of other neighbouring villages and called a meeting next day i. e. , on the 10th of August, 1948. It is said that about 1000 or 1200 people assembled in that meeting which was held at a place called Bagh Dablana, outside the village. According to the prosecution, this meeting was an unlawful assembly because at least two persons were armed with guns, several persons were armed with sharpedged weapons like kulharis and gandasis (hatchets) and the majority of the remaining lot was armed with lathies. It was alleged that the common object of this assembly was to wreak vengeance on the kanjars, and to exterminate them or drive them out from their settlement by violent means. The Tehsildar Hindoli who was a 1st Class Magistrate got information of this meeting and so he went to the spot and tried to pacify the people. He assured them that the Government would look into their grievances and that they should disperse, but they did not listen to him,, and, therefore, he went to Bundi to make a report to the Collector. The kanjars who had already got scent of the impending trouble had gone to Bundi and requested the police officer to help them. They were however, sent back to their settlement under the escort of a few constables from the police line. It is alleged that when the kanjars returned to their settlement, the people who had collected at the Bagh Dablana launched an attack upon them. The kanjars came out of their huts and took shelter at the police chowki. The Sub-Inspector Police Mumtaz Hussain who was in-charge of the kanjars' settlement went to the crowd and tried to pacify it, but it was furious and so he went to the Dablana village to call further police force. Before he could return, the attackers beat and murdered several of the kanjars and returned from that place. The story goes that some of the attackers had removed the tiles from the roof of the police chowki and hurled heavy stones on kanjars who were locked inside. Others were beaten with blunt and sharpedged weapons. Three kanjars died instantaneously, two died after some time, the same day and sixteen were injured very seriously. The first information report was lodged only half an hour after the occurrence at 3-30 P. M. Altogether, sixteen accused were challaned by the police. Of them one was discharged by the committing Magistrate, ten were acquitted by the learned Sessions Judge and five were convicted and sentenced as mentioned above. It is not contested by the appellants' learned advocate that a large member of people from various neighbouring villages had collected at Bagh Dablana on the 10th August, 1948 and that some of them had attacked the kanjars at the Police Station in the afternoon. It is also not contested that five of the kanjars were killed and sixteen others were injured in that occurrence. What is contended is that the appellant were not members of any unlawful assembly, that they did not share the common object of the attackers, that they did not take any part in any violent activity that the police has not been able to unearth the real criminals and the trial court has convicted the appellants on flimsy, discrepant and unreliable evidence. It is urged that the people who had assembled at Bagh Dablana were invited by the residents of the Dablana village because the kanjars were carrying on thefts and depredation of property in the villages and the police was unable to check their criminal activities. The people were seriously thinking of finding out ways and means to checks the menace of these members of the criminal tribes. Protection of their person and property was their only common object and they wanted to make certain deliberations in that behalf. The villagers are in the habit of carrying sticks in the course of their usual habit. It is further urged that the people had approached the proper authorities that the Collector and the I. C. P. were also invited to that meeting and that the assemblage was perfectly lawful so long as it remained at the Bagh Dablana. It is further contended that even after some of the attackers started from the Bagh Dalbana, only those were members of the unlawful assembly who shared with them the common object of beating the kanjars, that several people who had gone to that side only as spectators were not necessarily members of the unlawful assembly and that the learned Sessions Judge had committed an error in not making that distinction. It is pointed out that according to the finding of the learned Sessions Judge himself, the two appellants Ram Kishen and Kanwara had not taken any part in any violent action and that they have been convicted for the simple reason that they were seen at the Bagh Dablana with guns in their hands. It is also pointed out that none among the injured or killed bore any injury of any gun shot, that the girdawar had taken away the gun from Kanwara even before the Tehsildar started for Bundi and under the circumstances, there was no justification for the conviction of these two persons. Similarly, in respect of the remaining three appellants Kalyan, Ananda and Shankriya, it has been argued that their names do not find any mention in the first information, report, that the identification proceedings were no more than a force, that there is no convincing evidence maintain their conviction, and therefore' all of them should be acquitted. ' The learned Advocates on both the sides have led us into the evidence in detail. The learned Sessions Judge has given an exhaustive judgment. For the sake of clarity and proper analysis of the evidence he has divided the occurrence into three stages. The first was the assemblage of the people at Bagh Dablana. About this stage it has to be seen whether the meeting held at this place was an unlawful assembly and the people who were seen there, were members of that unlawful body and can be justly convicted under sec. 147 of the Indian Penal Code. The next stage relates to the period when those people started from the Bagh and were met by the Sub-Inspector Mumtaz Hussain to be told to return back and refrain from resorting to any violent means. The third stage begins after the departure of the bub-inspector Mumtaz Hussain when actual beating and killing took place. Regarding the first stage, the prosecution evidence mainly consists of the oral evidence of the Tehsildar i. e. the Magistrate, P. W. 1 Shri Phani Bhusan, Girdawar P. W. 5, Jodhraj Singh and document Ex. P. K. This document purports to be an application of the punches of villages Dablana and it is addressed to the Collector, Bundi. On the basis of this document, it has been urged from the side of prosecution that it was in the nature of ultimatum and it showed that the signatories thereto were determined to take the law in their own hands and drive out the kanjars from their settlement or exterminate them. The document is sought to used against the two appellants Shankriya and Ananda whose thumb impressions are said to be appearing thereon. It is contended on the other hand by the learned advocate for the appellants that this document was inadmissible in evidence, and the learned Sessions Judge ought not to have taken it into consideration. We think that this document cannot be taken to be inadmissible in evidence but it was certainly not proved by the prosecution that it was signed or thumb marked by the persons by whom it purports to have been signed or thumb marked and as such, it could not be used against them. There is no evidence to the effect that the thumb marks appearing on this document are those of the appellants Shankriya and Ananda and as such, it cannot be used against them. Moreover, even if it were proved, it could not be said that it was in the nature of an ultimatum. It begins with saying that the kanjars were carrying on thefts frequently in the neighbouring villages, that they had received so much stolen property that they had even left their usual vocation and cultivation, that on the 9th August, 1948 they had beaten the minas of Deva-ka-khera, pursued them right up to the village Dablana, that those persons were giving serious troubles, and, therefore, it was requested that the I. C. P. should be sent atone. The learned Sessions Judge took exception to the following words: - "the I. G. P. should be sent immediately today because such a trouble has arisen that either there would be no kanjar or no village' people. " These words do not show the signatories had given an ultimatum that either they would leave the village or they would exterminate the kanjars. The signatories had only apprised the authorities that a serious situation had developed and it might come to this extent. Then proceeding they further requested the Collector that he should himself come to the site with the I. G. P. and see the situation. Lastly it was stated that if they will not be listened, then they will have to approach the higher authorities. In our opinion, this was perfectly legitimate application and if the situation were handled in time the crisis might have been averted. The learned Sessions Judge has concluded from the evidence of Phani Bhusan and Jodhral Singh that the people who had assembled at Bagh Dablana did not listen to the right advice which was given by him and that since, they were bent upon beating the kanjars, they formed an unlawful assembly. We have gone through their statements and we think that it cannot be concluded from their evidence that all the persons who were present there were members of unlawful assembly. P. W. 1 has stated that when he reached Bagh Dablana, about 1000 or 1200 persons were assembled there. When he talked with them, they told him that they were very much troubled by the kanjars and that either the kanjars would not remain or they would not remain there. The witness says that he tried to pacify those people and assured that their grievances would be redressed and thereupon, many of them had assured him that they will not resort to any violence. About the appellant Kalyanlal, he admitted in his examination-in-chief that when he asked him to pacify the people, he tried to reason with them. That shows that Kalyan had himself helped the witness in trying to reasons with the people and pacify them and it cannot be said against him that he shared the common object of those who advocated violence. About the appellant Kanwara, he has stated that he was seen with a gun in his hand, but it was taken away from him by the girdawar Jodhraj Singh and that he was also changed to the view that no action would be taken and the decision of the Government would be awaited. About the appellant Ram Kishen, he says that he was also seen with the gun in his hand in the crowd, but there was no talk between them and he did not know his mind. According to him, Kalyanlal, Ram Kishen and Kanwara were already known to him and they were respectable persons of their villages. In cross-examination he has definitely stated that after his talk with the people, there was no apprehension in his mind that the people would resort to any violence. According to him, the appellants Ram Kishen and Kalyanlal had even left that place. P. W. 5 Jodhraj Singh's evidence is almost to the same effect. According to him even Ram Kishen appellant was also among those who had come to proper reason after his talk. P. W. 55 Mangia has stated that he was the person who; was sent by the residents of Dablana to go to the village Nayagaon and Raghunathpura and inform the residents thereof to assemble next day at Dablana because Hakim Sahib would come there. In cross-examination he has further clarified this version by saying that he had not informed anybody to come armed with any weapon. On the other hand, he had simply informed them that Hakim Sahib would come there and they will represent their case to him. The evidence of this witness shows that the people called from the neighbouring villages were not invited for any unlawful purpose. Ex. PK also shows that the Collector and the I. G. P. were requested to come to that meeting and, therefore, it cannot be said that this assembly was unlawful at its commencement. There is much force in the argument of the learned advocate for the appellants to the effect that village people are in the habit of keeping sticks while going out from villages and the mere fact that some of them had sticks in their possession does not indicate-that they had any intention of restoring to violence. Even P. W. Jodhraj Singh has admitted that the villagers are in the habit of keeping sticks. It may be said from the evidence of P. W. 1 and P. W. 5 that there were some persons in this assembly who had given expression to feelings of violence, but it cannot be said for that reason that all the members present there were members of unlawful assembly. According to these witnesses, those people were divided in their opinion and there were also persons who did not share the views of those who advocate violence. It has not been clearly brought out from the evidence as to how many persons were in favour of using violence and how many were against resorting to that method. P. W. 1 and P. W. 5 had talked only with a few selected persons including the appellants Kalyanlal Kanwara and Ram Kishen and they are quite definite in their statement that by the time they had left these people, they had expressed views against using any violent method. There was no apprehension in the mind of the witnesses that the people gathered there would take any violent action. The prosecution has not produced any evidence to show as to what talk or deliberation took place in that assembly after P. W. 1 and P. W. 5 had left that place. In the case of Maung Oh Kyan vs. King Emperor (1) (A. I. R. 925 Rangoon, p. 243.), it was observed that: - "the action of a few members of an assembly which is gathered together for a perfectly lawful purpose cannot by themselves make the whole assembly an unlawful assembly. The circumstances must be such as at least to justify the presumption that the other persons present associated themselves with the offending members. The mere fact that they are with the offending members at the time does not make them members of the unlawful assembly formed by those members. They must be shown to have joined or continued in that small assembly. " I am in respectful agreement with these observations. A huge meeting consisting of 1000 or 1200 persons like the present one and which is convened for a perfectly lawful purpose, cannot be taken to be an unlawful assembly simply because some persons present there were found preaching violence, specially when it is also found at the same time that others were opposing the use of violent methods. So long as the members of that assembly are only at the stage of making deliberations, it cannot be said they had any common object in their view. In order to find out the common object of an unlawful assembly at the beginning, it is not a legitimate method to take into consideration the actual offence committed by certain persons in the course of riot at the latter stage and to infer therefrom that such activities were originally part of the common object of the whole assembly. Under the circumstances of the present case, there is no material evidence to justify even an inference that even the majority, not to say of all the members, of the assembly present at the Bagh Dablana had any unlawful object in their view. It would, therefore, be wrong to convict any person of being a member of unlawful assembly simply because he was seen at the meeting in Bagh Dablana. Coming to the next stage of the occurrence, however, it may be said that the group which proceeded from Bagh Dablana towards the police chowki with the purpose of beating the kanjars was certainly an unlawful assembly, but here also it must be kept in mind that there were also persons who did not share the view of this violent group, but had simply gone to that direction as spectators and if therefore it is established that any of the appellants was present only in the latter group as spectators and not in the group which was taking part in using violence then such persons cannot be held guilty of riot or being members of the unlawful assembly. ' Coming to the third stage, it has to be seen as to what part was taken by each of the appellants and what offences they could be held to be guilty. It would be proper to deal with the case of each appellant individually. Thus there is absolutely no evidence against them to hold them guilty of the offence under sec. 144 of the Indian Penal Code. It would appear from the above discussion that the appellants were known to Mumtaz Hussain and the constables present at the police chowki and still none of them was mentioned in the first information report. The identification proceedings were very unsatisfactory. The evidence of Mumtaz Hussain and the constables Goga, Ram Narain, Shiv Shankar and Sua Lal is not independent and reliable. On the other hand they are full of discrepancies. Their statements have not been believed in respect of eleven other persons who were tried with the appellants namely Ram Ratan, Debia, Ganpat, Ooda, Bajranga, Jailya Gaindia, Ram Deva, Deva, Bachraj and Ram Karan. The evidence of the two independent witnesses Sukh Deva and Ram Karan is definitely in favour of the appellants. The appeal is therefore allowed, and all the appellants are acquitted of the offence of which they have been convicted. SHARMA, J.- I fully agree with the judgment of my learned brother Dave J. , and order that the appeal be allowed, convictions and sentences of the appellants be set aside, and they be acquitted. If not required in any other case, they shall be released at once. . ;