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Ganga Singh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All647; 155Ind.Cas.541
AppellantGanga Singh and ors.
RespondentEmperor
Cases ReferredMadat Khan v. Emperor
Excerpt:
.....of the learned sessions judge clearly means merely 'not proved. 2 of the revision which states that the refusal of the trying magistrate to supply the defence after the framing of the charge sheet with even such copies of the statements of witnesses to the police as had been examined for the prosecution resulted in failure of justice. the court said that it would have been better, if the magistrate had allowed the request......were these two cross-complaints before the magistrate, one by udai singh and the other by ganga singh. the magistrate has stated that the prosecution in the one case is the defence in the other. the evidence produced by the parties does both for the prosecution in one and defence in the other case excepting that udai singh, etc., have examined three more witnesses in defence besides the nine witnesses examined as prosecution witnesses. ganga singh and others have examined six witnesses both for the prosecution purposes and in their defence. the counsel in each case agreed to this course. it is not alleged for the applicants that there was any irregularity in the recording of the prosecution evidence in the present case or that there was any defence evidence which they desired to.....
Judgment:
ORDER

Bennet, J.

1. This is an application in criminal revision on behalf of six persons who were sentenced by a Magistrate under Sections 147 and 452, Penal Code to 3 months' rigorous imprisonment and Rs. 50, fine. On appeal the lower Court altered the conviction to one under Section 143, Penal Code, and set aside the sentence of imprisonment and maintained the sentences of fine. The case for the prosecution was that the accused objected to the complainant, Udai Singh, employing a Brahman called Khiali Ram as his priest and because they had out-casted Khiali Ram, the accused in a body forcibly entered the house of the complainant in order to overawe the complainant and threatened to beat the complainant and complainant ran away. The first ground which is argued was No. 3 in revision that the joint trial of the applicants along with the accused in the cross-case filed by Ganga Singh was illegal as prosecution evidence in one constituted the defence evidence in the other. There were these two cross-complaints before the Magistrate, one by Udai Singh and the other by Ganga Singh. The Magistrate has stated that the prosecution in the one case is the defence in the other. The evidence produced by the parties does both for the prosecution in one and defence in the other case excepting that Udai Singh, etc., have examined three more witnesses in defence besides the nine witnesses examined as prosecution witnesses. Ganga Singh and others have examined six witnesses both for the prosecution purposes and in their defence. The counsel in each case agreed to this course. It is not alleged for the applicants that there was any irregularity in the recording of the prosecution evidence in the present case or that there was any defence evidence which they desired to produce and which was not allowed. Their objection merely is a technical one. Learned Counsel relied on the case of Allu v. Emperor 1924 Lab. 104 where it was held that any irregularity of this nature could not be cured Under Section 537, Criminal P.C. No other ruling was produced in support of the contention. On the other hand it has been held by a Bench of this Court in Sukhai Ahir v. Emperor 1928 All. 593 in a similar case that it was not necessary for the Court to interfere unless it were shown that the accused were prejudiced by the procedure. Similar rulings were given in Queen-Empress v. Chandra Bhiniya (1893) 20 Cal 537. There was also a case reported in Madat Khan v. Emperor 1927 P.C. 26 in which there were two trials but the evidence for the prosecution was similar to a substantial extent in each case and each party was a witness against the other. The High Court of Lahore gave one judgment and the Sessions Court had also given one judgment. Their Lordships of the Privy Council found that although technically it might have been better to keep the evidence entirely distinct and to have delivered two separate judgments, no injustice has followed from what was done. Therefore there was no interference. Following this ruling, I consider that it has not been shown in the present case that there was any prejudice to the case for the accused. I consider that no ground for interference in revision has been made out on this point.

2. The next point which was argued was in regard to the charge which is as follows:

That you on or about 19th May 1934, at village Pastora War with the common object of overawing Udai Singh who had sent for and employed Khialiram, a Brahman, against your wishes at Puja that be offered that day, forcibly 1 entered the house of Udai Singh and there created a riot and thereby committed an offence 1 punishable under Sections 147 and 452, I.P.C. and within my cognizance.

3. The learned Sessions Judge was under the impression that the Magistrate intended to make charges under two sections and he made comments on the form of the charge. The ground of revision is No. 4 that the charge did not disclose the common object. In Section 141 (third), Penal Code, it is, laid down that a common object of an unlawful assembly may be to commit any mischief or criminal trespass or other offence. The prosecution evidence shows that there was a common object of the accused persons to commit the offence of Section 452. Penal Code - house trespass - after preparation for hurt or assault, consider that the charge sheet is intended to show that the offence of riot was committed with a common object of committing the offence of Section 452, Penal Code. I do not consider that the charge sheet is in any way defective. I do not think that the Magistrate intended to frame separate charges under each section and he has not in fact framed separate charges. Some further comments were made by the Sessions Judge on the use of the word 'overawe' and he considers that the word 'overawe' can only be applied to Section 141 (first) where the overawing is of certain branches of Government, etc. But the word 'overawe' is tantamount to the word 'intimidate' which enters into the definition in Section 441, Penal Code, of the offence of criminal trespass which is involved in the offence of Section 452, Penal Code. The use of the word therefore was correct; I find nothing in this ground.

4. The next ground argued was ground No. 5 that the Magistrate, having disbelieved the prosecution evidence m material particulars, ought to have discredited the entire evidence and acquitted the applicants. The alleged disbelief is contained in a passage which says:

It is possible that there has been some exaggeration as there often is in these cases, and the story that the appellants, or some of them entered the complainant's house and threatened) his son and daughter-in-law may not be altogether reliable.

5. In Section 3, Evidence Act, there are definitions of 'proved' ''disproved' and 'not proved.' The finding of the learned Sessions Judge clearly means merely 'not proved.' The ground of revision turns this round into an allegation of 'disproved.' This is incorrect. The ground as stated does not correspond to the judgment. I therefore consider this ground has nothing in it.

6. Ground No. 6 argued that the fines of Rs. 50 on each accused were severe as no force was used. But the accused are found to have committed the offence of Section 143, Penal Code, being members of an unlawful assembly the punishment for which may extend to six months' rigorous imprisonment and it has also been found that the common object of the unlawful assembly was to prevent Udai Singh from employing Khiali Ram as his priest. An interference in this manner with religion is not to be treated lightly. Accordingly I do not think that the amount of fine is excessive.

7. The last point argued was ground No. 2 of the revision which states that the refusal of the trying Magistrate to supply the defence after the framing of the charge sheet with even such copies of the statements of witnesses to the police as had been examined for the prosecution resulted in failure of justice. No such point was taken in the grounds of appeal to, the lower Court. The judgment of the lower Court on p. 3 shows that an objection was orally made to the lower Court that a general application was made before the trial commenced for copies of all statements made by witnesses from whom the police had enquired and that the application was refused. The Court said that it would have been better, if the Magistrate had allowed the request. But that application was not one which could come under Section 162 as it had not been made when the witnesses were called for the prosecution. Learned Counsel has not been able to find the application mentioned to the lower Court but he finds an application of 2nd August which was the date when the prosecution evidence was heard and when the charge sheet was framed. That application asks for copies of the statements of such prosecution witnesses whose evidence has been recorded. The order of the Magistrate was that the diary should be sent for and it would then be seen which witnesses' statements had been recorded. There was thus no refusal by the Magistrate on the application in question. Learned Counsel has not been able to find any further reference in the record of this matter. It is possible that when the statements were produced, they proved to be of no use to the defence and copies were not required. There is nothing to show that when the diary came, the Magistrate made any refusal. I consider that no ground for revision has been made out. In the result I dismiss this application.


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