1. In this case seven persons were tried before the Court of Session at Mirzapur on charges framed under sections 147 and 333 of the Indian Penal Code. The prosecution story in its essentials may be stated thus:---A Revenue Officer named Abdul Raoof had been despatched, under the orders of his superiors, on a tour in the course of which it was his duty to realize loans which had been advanced to agriculturists, presumably under the provisions of Act XII of 1884. In the neighbourhood of a village called Baskop he was attacked by the seven appellants and one other man, alleged to be absconding. The assault was committed because of the efforts which Abdul Raof was making, in the discharge of his duty, to realize a loan of Rs. 3 which had been advanced to the appellant, Sampat. Abdul Raoof himself and two peons, Mansab Ali and Lakhmir Khan, who were attending on him, received a fairly severe beating. In the case of Abdul Raoof himself there were a large number of contusions and abrasions found on various parts of his body, and the matter was rendered more serioas by the discovery that one of the blows inflicted on the left forearm had caused a fracture of the bone. Abdul Raoof's own account of the matter may be examined in a little further detail. He reached the neighbourhood of Baskop on the 3rd of December 1916, and camped in a grove near the village. In the course of the 4th of December he realized certain arrears of advances which had been made to various persons, including one of the present appellants and the father of another. On the morning of December the 5th he sent Mansab Ali into the village to call the appellant, Sampat. It is admitted that Sampat had received advances from Government for agricultural purposes and that he had repaid the major portion of those advances It is, however, also admitted by Sampat himself that on the 5th of December last a sum of Rs. 3 was due from him on account of an advance which he had taken in the year 1912. Mansab Ali came back and reported to Abdul Raoof that Sampat was refusing to pay or to accompany him to the grove where Abdul Raoof was staying. Thereupon the latter went into the village, saw Sampat and persuaded him to accompany him to the grove, telling him that when he got there he would explain the accounts, presumably with a view to satisfying Sampat that the money, claimed was really due. According to Abdul Raoof, Sampat's neighbours were unnecessarily alarmed and jumped to the erroneous conclusion that Sampat had been wrongfully arrested and was being detained in the grove without lawful authority. A body of men, consisting of the remaining six appellants and one Mannu, alleged to be absconding, came to the grove from the village, armed with lathis. They demanded that Sampat should be let off; by which I suppose the witness means that he should be let off the payment of the Rs, 3 due from him. When Abdul Raoof explained that it was a Government due which be had no power to remit, he and the two peons were assaulted by the seven men from Baskop, and Sampat himself joined in the attack upon them. The beating continued until Abdul Raoof, Mansab Ali, and Lakhmir Khan had been laid out helpless on the ground. Their assailants then went away. In support of this story we have the evidence of three persons, Sheo Mangal, the village watchman, Rupnarain Lal, patwari, and one bholi, a resident of a village close by. He says that he happened to be present at the time because he had himself come to pay up certain arrears due from him.
2. In considering the defence it is necessary to divide the appellants into three classes:---The first consists of Sampat and his cousin, Ram Sumer. The second consists of the appellants, Babban, Ram Partab, and Mata Saran, who were all residents of Baskop. In the third class I place the appellants Manmohan and Sheo Mangal who are residents of a village called Pura Bandi situated some six miles off, across the border of the Allahabad District. These two last say that they were not in or near Baskop at the time of the occurrence, that they had never been to the place and had no motive for going there. They ascribe the charge against them to enmity on the part of one Mahabir Prasad, who is a subordinate official employed at the same Tahsil as Abdul Raoof. The appellants placed in the second class admit that they are residents of Baskop, but say that they happened to be absent elsewhere at the time of the occurrence. I may say at once chat such evidence as they produced on this point was flimsy and altogether unreliable. Sampat and Ram Sumer have a very definite story to tell which they have attempted to support by evidence. They say that Sampat had been supplying milk to Abdul Raoof and his camp followers during the time that the latter was staying in camp near Baskop. On the morning of December the 5th, the peon Mansab Ali demanded more milk and Sampat refused to supply it. Thereupon Abdul Raoof came to Sampat's house armed with a sword, and bringing Mansab Ali, Lakhmir Khan and another peon with him. These renewed their demand for milk, and on being refused assaulted Sampat. The latter cried for help and brought up Ram Sumer and others. Two of them assaulted Abdul Raoof and his followers. One of the peons ran away. Abdul Raoof drew his sword, and he himself along with Mansab Ali and Lakhmir Khan put up some sort of a fight, but they were knocked down by the two appellants. The medical evidence so far support's this story that Ram Sumer was found to have two slight cuts on his left wrist and left forearm. The first of these was only skin deep and the second about one sixth of an inch deep. Sampat on the other hand showed two distinct contused wounds, apparently inflicted by some blunt weapon, both on the right hand or. wrist and two slight abrasions on another part of his person. In this connection it may be said at once that Abdul Raoof in his own account of the affair admits having drawn his sword and used it in self-defence. He puts forward as his immediate reason for bringing this weapon into play the assertion that Sampat was trying to carry off a bag of rupees containing money which the witness had realized on behalf of the Government. This assertion finds practically no corroboration in the rest of the prosecution evidence and has been rejected by the learned Sessions Judge. In the case as argued before me no stress has been laid on the separate defence set up by the appellants Babban, Ram Partab and Mata Saran. That there was an affray between Abdul Raoof and the villagers of Baskop, in the course of which Sampat and Ram Sumer received the slight injuries already noticed while Abdul Raoof and his two attendants got a good deal the worst of the scuffle and suffered a fairly severe beating, is fully established by the evidence. That Abdul Raoof's assailants were five or more in number is a statement so corroborated by the medical evidence, and by the general probabilities of the case, that it may be accepted with confidence. That the residents of Baskop who thus assaulted Abdul Raoof included the appellants Babban, Ram Partab and Mata Saran, as well as Sampat and Ram Sumer, I hold to be also clearly established. No reason is suggested why these men in particular should have been implicated in place of other residents of Baskop concerned in the affair, and I have no doubt that the prosecution evidence may safely be accepted as to the presence on the scene of these five appellants and as to their having taken part in the assault. This was the view taken by the assessors who heard the evidence, as well as by the learned Sessions Judge.
3. The defence as argued before me raises two points. One is that the appellants Manmohan and Sheo Mangal were not there at all and have been falsely implicated for the reason already suggested The other is that the remaining five appellants can be shown from the prosecution evidence itself to have acted in the lawful exercise of their right of private defence, as that right is defined by sections 96 to 106 inclusive of the Indian Penal Code. In connection with this defence must be taken a further contention that, in any event, the prosecution cannot be held to have proved affirmatively the ingredients necessary to a conviction under Section 333, Indian Penal Code, namely, (in this instance) that the assault committed upon Abdul Raoof took place while the latter was in the discharge of his duty as a public servant, or with intent to prevent him from discharging his duty as such, or in consequence of anything done or attempted to be done by Abdul Raoof in the lawful discharge of his duty as a public servant.
4. In taking up first the points argued on behalf of the main body of five appellants, I am bound at the outset to remark that this is not quite the defence which was set up in the Trial Court. It may be that sometime or other I shall yet come across a case in which an uneducated villager, on his trial upon a criminal charge, has realized the advantages of telling the Court exactly what had occurred, even though it may be impossible for him to do this without admitting some degree of culpability on his own part; but I cannot remember to have yet come across such a case in the course of my experience. In the present instance the accused have complicated the matter, and damaged their own case, by refusing to admit that the affray took place in the grove outside the village of Baskop and not in front of Sampat's door, as alleged by the latter. That the prosecution story is so far true I am quite satisfied on an examination of the evidence, and I do not think it necessary to labour the point any further. By refusing to admit this fact, Sampat has made it impossible for himself to explain to the Court how he came to be brought to the grove and what was being done to him there. This is unfortunate; but I do not think it is altogether impossible to arrive at a fairly accurate decision. The sum of money due from Sampat was a small one and it represented an old standing debt. I have no doubt that Abdul Raoof felt that he could not return to the Tahsil after his visit to Baskop, with this small sum unrealized, except at the risk of laying himself open to not undeserved rebuke. At the same time, I find it very difficult to believe that Sampat could not have paid the paltry sum of Rs. 3 without serious inconvenience to himself. Yet it is quite clear upon the evidence that he stubbornly refused to do so. The only possible explanation of this is that there is some substratum of truth in Sampat's story about this supply of milk taken from him for the Naib Tahsil-dar's camp. In saying this I am not throwing any discredit upon Abdul Raoof himself. The most probable explanation is that one or other of that officer's underlings had made the task of collecting supplies easier for himself by throwing out a suggestion that the price of the milk supplied would be taken into account in liquidation of the debt due. In Abdul Raoof's own evidence there seem to me two details which corroborate this view. His statement that he induced Sampat to accompany him to the grove in order, that the accounts might be explained to him seems absolutely futile, if it is intended to refer to the accounts of taqavi advances, seeing that Sampat has all along admitted that this particular advance of Rs. 3 had been made to him and had not yet been repaid. It becomes quite intelligible if one supposes that it referred to the account of milk supplied. There is further Abdul Raoof's statement that the villagers who came up from Baskop demanded that Sampat should be let off. The average villager is shrewd and instructed enough about matters which immediately concern his daily affairs; and I have no doubt that the villagers knew as well as I do that the Naib Tahsildar had no power to remit a debt due to Government. I think it quite probable that Abdul Raoof did not know what had passed in the matter of obtaining supplies of milk for his camp, and that he was altogether taken by surprise when he realized, on the morning of December the 5th, that this small item was still outstanding and received a message from his subordinate that Sampat was flatly refusing to pay. Examining the evidence from this point of view, I have to determine first of all, whether it is proved that Abdul Raoof was assaulted under such circumstances as to bring the case within the operation of Section 333, Indian Penal Code. A public servant does not cease to be a private citizen, and the Jaw will take cognizance of an assault committed upon him, independently altogether of his position as a public servant. If, however, it is desired to invoke on his behalf the provisions of sections, 333, Indian Penal Code and other similar sections, it is for the prosecution to satisfy the Court that the facts of the case were such as to fulfill the requirements of those sections. In the present case I am content to say that I am not so satisfied, and I think the learned Sessions Judge, who has otherwise tried the case very carefully, has overlooked the importance of this point and the significance of some portions of the prosecution evidence. Without going so far as to hold that it is proved by the evidence that Sampat was wrongfully confined within the limits of the grove at the time when the assault upon Abdul Raoof was committed, I find it sufficient to say that I am not satisfied that the assault was committed in order to prevent that officer from discharging his duty in collecting this paltry sum of Rs. 3, or in order to punish him for attempting to do so. The immediate cause of the assault was in all probability what I have suggested, namely, some dispute about the supply of milk furnished by Sampat to the Naib Tahsildar's camp. I propose to set aside the conviction under Section 333, Indian Penal Code.
5. I have now to go on and consider the question whether the five appellants whose case I am immediately considering have or have not been properly convicted of the offence of causing grievous hurt under Section 325, Indian Penal Code, read with Section 149, Indian Penal Code, in respect of the assault committed upon the Naib Tahsildar. On facts which I have found it is obvious that these five persons, acting in concert and with a common object, did assault Abdul Raoof, Mansab Ali and Lakhmir Khan and did between them cause grievous hurt to Abdul Raoof. The question is whether their action is covered by the provisions of the Indian Penal Code relating to the right of private defence. In order to set up this right it is incumbent upon the accused to begin by showing that an offence affecting the human body was being committed on the person of Sampat at the time when the accused persons interfered on his behalf. The only offence which can reasonably be suggested is that of wrongful confinement as defined in Section 340 of the Indian Penal Code. Here the defence find themselves entangled in the difficulty which I have already pointed out, namely, that they have elected rot to lay the whole of their defence truly before the Court and have refused to admit that the transactions alleged against them took place in the grove where the Naib Tahsildar was in camp. I do not deny to them the right to make out their defence, if they can do so, out of the months of the prosecution witnesses. In this connection I am bound to note that two at least of the prosecution witnesses, Sheo Mangal chaukidar and the witness Bholi, stated that, when the villagers came up, they were informed that Sampat would not be allowed to leave the grove without first paying up the sum of Rs. 3 due from him. It must be remembered that it is no part of the prosecution case that Abdul Raoof had arrested Sampat for non-payment of the arrears of Government advances and from the evidence of Abdul Raoof himself I take it that he was not invested with any such power of arrest at the same time. Although I am prepared to believe from the evidence of the witnesses Sheo Mangal and Bholi that some such expression as that attributed to him was in fact used by Abdul Raoof, I think the evidence falls short of what would warrant a clear finding that Sampat was being wrongfully confined. Evidence given as to words used in the course of an altercation requires to be received with caution and cannot be acted upon without some reservation. It is quite possible that Abdul Raoof may have used some such expression as is suggested and that he intended, if possible, to realize this small sum before Sampat left the spot, without the Court being thereby driven to the conclusion that Abdul Raoof was holding the man in wrongful confinement. Moreover, so far as the question of the right of private defence goes, I must say that I entirely agree with the learned Sessions Judge that, if such right ever came into existence in favour of any of the appellants, it was grossly exceeded. If it was a mere question of getting Sampat away from the grove. I have no doubt the the object could have been accomplished without inflicting upon Abdul Raoof and his two subordinates the long list o injuries disclosed by the medical evidence Abdul Raoof himself was undoubtedly thrashed after he had been disabled an knocked down. I think, therefore, that a Conviction under Sections 147 and 325 read with Section 149 of the Indian Penal Code must be recorded against the appellants Sampat, Rim Sumer, Babban, Ram Partab and Mata Saran.
6. To the appellants Sheo Mangal and Manmohan I have decided to extend the benefit of the doubt. I think their defence evidence is sufficient to show that there was some sort of feud between themselves and the qurq amin, Mahabir Prasad. A very curious point in the case is that, while an inquiry into this matter was pending, Mahabir Prasad, or one of his brothers, seems to have invoked the interference of the Police and caused the houses of Sheo Mangal and Manmohan to be searched on the allegation that they had been concerned in a burglary at his house. I should not have attached as much weight as I do to this defence, if it were not for a very definite and glaring discrepancy in the prosecution evidence as it affects these two men. They were undoubtedly mentioned in the first report made by Sheo Mangal chaukidar. The latter deposes positively that the eight men named by him in that report had been mentioned to him by name by Abdul Raoof. On the other hand Abdul Raoof deposes that he had never seen Sheo Mangal and Manmohan accused before, and could not have possibly have given their names to any one. This seems to me to be true; and I find it difficult to understand why Sheo Mangal chaukidar should have asserted the contrary. If the implication of these two accused persons in the affair was perfectly straightforward, and if they are really guilty, they have been fortunate in escaping by reason of the folly of this proseontion witness. On the whole, I am inclined to doubt whether they were in the village of Baskop on the morning in question, or whether, being there, they would have taken it upon themselves to meddle in this affair. The result is that I accept the appeals of Sheo Mangal and Manmohan, I set aside the convictions and sentences against these two men and I acquit them of the offences charged. As they have been released on bail it is sufficient for me to direct that their sureties be discharged.
7. As regards the remaining five appellants, I set aside the conviction under Section 333 of the Indian Penal Code and in lieu thereof record a conviction under Section 325 and 149 of the Indian Panal Code I affirm the conviction under Section 147 of the Indian Penal Code against all those tive men.
8. The learned Sessions Judge has passed more lenient sentences against Sampat and Babban, as compared with the other three, and I propose to accept the discrimination which he has himself laid down Accordingly, as regards Sampat and Babban, I leave undisturbed the sentence of three months' rigorous imprisonment passed under Section 147, Indian Penal Code. I record a sentence of six months' rigorous imprisonment under Sections 325 and 149 of the Indian Panal Code and direct that the two sentences do run concurrently. As regards Ram Sumer, Ram Partab and Mata Saran I leave undisturbed the sentences of six months' rigorous imprisonment under Section 147 of the Indian Penal Code and I record sentences of rigorous imprisonment for nine months each under Section 325 read with Section 149 of the Indian Penal Code and direct that these sentences do run concurrently. These accused persons must surrender to their bail to undergo the unexpired portion of their sentences.