1. This is a criminal appeal from a conviction under Section 304 of the Indian Penal Code.
2. Some of the facts of this case cannot be disputed. Kunwar Karan Singh is a zemindar who owns about 16 biswas share of land in village Gajraula. In the beginning of January 1923 some trees growing on the land of certain tenants were cut down under the orders of Kunwar Karan Singh. Two of these trees were allowed to be removed by him without any protest from these tenants. A pipal tree growing on a field belonging to Umrao, appellant No. 1, was also cut down under the orders of Kunwdr Karan Singh while Umrao was absent. This tree, however, was not removed from the field and was allowed to he there for some time. On the 23rd of March 1923 the zemindar sent some carpenters to saw the trunk and then to remove it. A protest was made on behalf of Umrao who asserted a right in himself. The carpenters, therefore, had to come away and nothing further was heard of till the 2nd of April 1923 when in the morning the zemidars agent, two of the sons of the agent, and two carpenters went to the field to saw the tree. It is not disputed on behalf of the appellants that at that time Umrao, Bhima, Nanhua and Heta, the appellants Nos. 1 to 4, were present there and remonstrated with Baldeo Singh, the zemindar's agent, about the cutting of the tree. They openly said that they would not allow the tree to be cut or to be taken away.
3. The prosecution story is that the agent and his men went to that place armed with canes or small sticks in order to explain to Umrao that he should not object to the cutting or to the removal of the tree, that Nanhua ran to the village which is not very far off from the field and brought some 12 or 13 more men armed with lathis who all fell on the agent and his men causing numerous injuries. Bansi one of the agent's party received two severe blows on the head and was knocked down and after the fight had to be removed to the zemindars enclosure and then to the hospital. He was in hospital for some time and then was taken to his home. The Civil Surgeon paid two visits to him. He later on had an attack of pneumonia and died of it on the 23rd of May 1923. According to the story told by the prosecution witnesses Udai Ram, the village chaukidar, and two or three other men wanted to intervene and prevent the fight but they, too, were very severely beaten, the chaukidar receiving no less than 18 injuries including a broken finger which was a grievous hurt.
4. The case put, forward on behalf of the defence was that the fight did not take place near the spot where the tree had been cut but that it took place at the chaupal of the accused. Two witnesses were produced in support of this case who have been disbelieved. The learned Counsel for the accused appellants has not pressed their evidence before me. It may therefore be taken for granted that the fight actually took place on the field and that it took place in respect of the sawing and the cutting of the tree.
5. The case of the zemindar in the Court below was that he had a right to cut all trees growing on the tenants lands and that he was fully justified in cutting the tree and removing it. The learned Judge relying on the wajib-ub-arz has come to the conclusion that under the custom mentioned in the wajib-ul-arz the tenants are the owners of such trees. The accused were, therefore, entitled to cut it, the zemindar and his men were not justified in either cutting the tree or trying to remove it. The learned Sessions Judge also states that in these circumstances the accused persons had a right to use some force for the protection of their property. He, however, goes on to add that inasmuch as on the 23rd of March 1923 an attempt had previously-been made to saw the tree and to remove it the accused had had sufficient time from that date till the 2nd of April following to have recourse to proper authorities. In this view of the matter he thought that the right of private defence under Section 99 of the Indian Penal Code was excluded. In this view I am unable to concur. It is true that on the 23rd of March 1923 an attempt had been made to saw the tree on behalf of the zemindar but as after protest the carpenters came away the accused persons, the owners of the tree, were not bound to go to any Court. When a fresh attack on their right wasi intended on the 2nd of April they also had a fresh right to defend their property. The Police Station is admittedly situated some 15 miles away from the place and it is hardly conceivable that there was time to send a man to the Police Station and bring help before the tree could be cut or removed. At the same time no right of private defence could extend to the inflicting of more harm than it was necessary 'to inflict for the purpose of defence. I have therefore, to see whether the accused persons did not exceed their right to defend their property in causing so many injuries on the agent's party. No less than 38 injuries were caused on the persons belonging to the agent's party. One of them received two serious blows on the head resulting in a partial fracture of his skull, and the other named Udiai Ram got his finger broken. Having regard to these injuries there can be no doubt that the number of persons on the accused's side was much larger than five. After all, even if the zemindars men had succeeded in sawing the tree or removing it from the field there was a remedy open to the tenants. In view of all these things I am of opinion that the right of private defence was certainly very much exceeded in the present case and that, therefore, the accused cannot get the conviction set aside.
6. The next point to consider is whether the conviction under Section 304 of the Indian Penal Code was correct. It is true that Bansi received two very serious blows on his head and was felled down on the ground and had to be taken on a charpoy to the zemindar enclosure. Nevertheless it is also clear that he remained in hospital for some days and when he left it he was progressing well. It was pneumonia following the injuries he received, which ultimately caused his death, but death did not take place till the 23rd of May 1923 which is certainly a month and-a-half afterwards. It is true that pneumonia does supervene in cases of serious injuries on the head, but the medical evidence does not show that in this particular case it was the injury only which brought on the pneumonia. The death having taken place long afterwards I am of opinion that it is very difficult to say in this case that it was the accused who caused Bansi's death. In this view of the matter the conviction imder Section 304 of the Indian Penal Code must be set aside. The fact however, still remains that grievous injuries were caused on Bansi as well as on the chaukidar Udai Ram, one of the agent's party, the common intention of all the accused being to protect their property and at the same time to cause hurts to those who were asserting a contrary right. Even though, therefore, it is not quite clear whose blows actually caused these grievous hurts on the persons who took part in the riot the accused are guilty under Section 325 read with Section 149 of the Indian Penal Code.
7. The next point to consider is as to whether all or which of the accused persons took part in the riot. It has been pointed out that the prosecution case is that soon after the riot the agent and his men went to the zemindar Kunwar Karan Singh and consulted him at his enclosure and that it was riot till after such a consultation and not till some 20 hours after the occurrence that a report was made at the Police Station. It is therefore, argued that much stress cannot be laid on the circumstance that the names of all the accused were mentioned in the First Information Report. This argument certainly has some force. At the same time my attention has not been drawn to any part, of the evidence which would suggest that appellants Nos. 5 to 16 are persons against whom Kunwar Karan Singh had any grudge or previous enmity which would justify the inference that they were falsely implicated by the prosecution witnesses. Baldeo Singh, Sriram, Udai Ram, Chhuttan, Chhidda, Nanha, Zaharya and Shib Charan have mentioned all these 16 accused; and they were also mentioned in the dying declaration of the deceased Bansi. I, therefore, find mo ground for distinguishing the rase of any of these accused persons accordingly set aside-the-conviction of all the appellants under Section 304 of the Indian Penal Code, but alter it to one under Section 325 read with Section 149 of the Indian Penal Code.
8. The last matter to consider is the question of sentence, Umrao was admittedly the person to whom the field belonged and he was obviously the ring-leader Bhima is his nephew and Heta also is his relation. Nanhua is the man who according to the prosecution story went to the village and brought the other appellants. These four appellants admit their presence on the spot. I have no doubt in my mind that they are the persons who took the leading part and must, therefore, be dealt with more severely than the others who rushed to their help. I sentence the accused Umrao, Bhima, Nanhua and Heta to two (2) years rigorous imprisonment each and the rest of the appellants to one year's rigorous imprisonment each. In other respects the appeal fails.