(1) This is a criminal appeal filed on behalf of nine persons (1) Durga Das, (2) Banarsi Das Gupta, (3) Chaila Ram Garg, (4) Kewal Krishna Gupta, (5) Chaman Lal Bhatia, (6) Ram Baran, (7) Sukhdev, (8) Agya Ram and (9) Amar Nath, residents of Yamuna Nagar, District Ambala, from their convictions under S. 147, and S. 332 read with each accused has been sentenced to six months' rigorous imprisonment. The sentences for the two offences were ordered to run concurrently.
(2) The charge against the accused was that on or about 30-3-1958, at Yamuna Naga, they were members of an unlawful assembly and in prosecution of the common object of which they pelted stones on the police officers, present at the Police Post Yamuna Nagar and thereby committed an offence punishable under S. 147 of the Indian Penal Code.
(3) The second charge was that they on or about 30-3-1958, at Yamuna Nagar, were members of an unlawful assembly and in prosecution of the common object of which, they voluntarily caused simple hurt by pelting stones at 13 police officers, including the Superintendent of Police, a Head constable, and foot constables, and thereby committed an offence punishable under S. 332 read with S. 149 of the Indian Penal Code.
(4) There was also a third charge under S. 436, Indian Penal Code, but they were not found guilty under it.
(5) Originally sixteen accused were prosecuted to stand their trail but seven of them were given the benefit of doubt and acquitted. The remaining nine were convicted and they have come up in appeal to this Court.
(6) One Chohal, a Harijan, had died under suspicious circumstances while in the custody of the police. He was suspected to have been tortured to death by the police and his father Sonu wanted to get a criminal case registered against ht offender police officer but his efforts were said not to have borne any fruit. He approached two public men, Durga Das and Chaman Lal Bhatia, accused, who accompanied Sonu to the residence of the Sub-Divisional Magistrate Shri J. D. Khanna P.W. 2, and presented a written complaint to him at his residence on 30-3-1958, and he ordered an inquiry into the subject-matter of the complaint under S. 202 of the Code of Criminal Procedure.
(7) That Chohal had been done to death in consequence of torture while in police custody was generally believed and his death had greatly agitated the public of Jagadhri and Yamuna Nagar. A large number of people had gathered near the hospital when the doctor in charge was performing autopsy. There was also a demand that the post-mortem examination should be done by a Civil Surgeon and not by the Assistant Surgeon (P.W. 1). After the autopsy, the body was made over to the relations of the deceased for cremation and a very large crowd accompanied the body from the hospital to Yamuna Nagar where it was to be cremated.
It was 5 p.m. that the funeral procession left the hospital and there was a very large concourse of people following the body. They were undoubtedly in an angry mood as appears from their slogans which were being raised against the police. One of the slogans was 'Punjab police murdabad' and the other slogan was 'Bar jo ke apne chaman ki hifazat nahin kar sakti us ko ukhar do' (Uproot the hedge which cannot protect its garden). The reference obviously was to the police.
(8) The prosecution case was that among the accused-appellants, Durga Das, Chaman Lal Bhatia, Banarsi Das, Chaila Ram, Kewal Krishnan, and Sukhdev were the leaders. The numbers swelled as the procession reached Yamuna Nagar Police Post to a good few thousand people. In anticipation of an outbreak of disturbance, there were present at the police post, P.W. 2 Shri J. D. Khanna, Sub-Divisional Magistrate, Jagadhri, and also the Superintendent of Police, and the Assistant Superintended of Police, Ambala, with some police force.
The procession was raising slogans against the police and when it came in front of the Police Post Yamuna Nagar, it stopped. The leaders of the procession at that place were Durga Das, Chaman Lal and Kewal Krishan, and some other persons. The demonstration in front of the Police Post, according to P.W. 2, lasted for about two hours. Soon after reaching the Police Post, the crowd uprooted the bamboo trellis there and set fire to it. After setting fire to it, it was thrown towards the place where the police force and the police officers were standing. Stone were also pelted by the crowd at members of the police fore and thirteen of them were injured including the Superintendent of Police and head constable Hari Singh P.W. 9. As the situation had become critical and the Sub-Divisional Magistrate apprehended danger, he stood up on a table and declared the assembly to be unlawful and ordered the crowd to disperse.
This order was repeated two or three times but as the mob was in no mood to obey his order and as it continued to pelt stones, seven or eight teargas cells were fired. The processionist then began to disperse and sixteen persons were taken in custody. There was also a seventeenth person (Chaila Ram) who had slipped and he was arrested the next day. Among the accused, three person, Ram Baran, Amar Nath and Agya Ram were injured.
(9) P.W. 2 could identify accused Durga Das, Kewal Krishan, Chaman Lal, Chaila Ram, Sukhdev and Agya Ram and also Ved Parkash, who has been acquitted by the trial Court. He denied the suggestion made in cross-examination that Durga Das, Chaman Lal, Kewal Krishan, Sukhdev and Chaila Ram had gone with the dead body to the cremation ground. This witness could not say who were the particular persons who uprooted the trellis or set fire to it or threw the burning trellis insider the Police Post. He was also present outside the mortuary during the postmortem examination of the dead body.
(10) From among the members of the police fore, P.W. 4 Shri Baljit Rai, A. S. P., P.W. 7 Krishan Lal foot-constable, P.W. 9 Hari Singh Head constable, P.W. 10 Phul Chand foot constable, and P.W. 11 A. S. I. Nand Lal deposed to the occurrence in front of the Police Post. Out of these, P.W. 7 Krishan Lal, P.W. 9 Hari Singh and P.W. 10 Phul Chand had been injured.
(11) The prosecution has also produced P.W. 3 Nanak Chand, a shopkeeper, who claims to have witnessed the occurrence at the Police Post and had named accused Durga Das, Chaman Lal, Kewal Krishan, Chaila Ram and Sukhdev as the leaders of the procession who were raising slogans. He also stated that the Sub-Divisional Magistrate, declared the assembly to be unlawful. He said that Amar Nath accused was a paralytic and that accused Durga Das, Kewal Krishan, Charman Lal, and Sukhdev, when they were brought to the Police Post, stated that they had been arrested from their houses. According to this witness, half of the procession had passed the Police Post when the trouble started. With respect to this witness, at the request of the Public Prosecutor that he had turned hostile, permission to cross-examine him was given and he stated that he had been challaned for gambling at the previous Dewali as well.
(12) P.W. 1 Dr. Sham Singh, Assistant Surgeon, had examined the several persons who had been injured and besides the three prosecution witnesses named above, the other members of the police force who has sustained injuries, were the Superintendent of Police, Ambala, Shri B. R. Chadha, and foot constables Nasib Singh, Ratan Chand, Ganpat Singh, Shadi Lal, Waryam Singh, Tara Chand, Chhota Ram, Het Ram, and Daya Nand. Their injuries were simple, being in the nature of abrasions and contrusions. He also examined accused Agya Ram, Amar Nath and Ram Baran, who had sustained marks of contusions and abrasions and their injuries were also simple. Amar Nath accused is said to be a paralytic and Dr. Sham Singh said that he was suffering from some 'spastic nervous disorder'.
(13) Accused Durga Das admitted that he was in the procession, but denied raising any slogans or halting in front of the Police Post, but stated that they proceeded straight to the cremation ground with the deal body of Chohal. He denied being present on the spot and said that he was arrested from his house early next morning. He stated that he was being falsely implicated on account of his being a General Secretart of the Jan Sangh and of the Hindi Raksha Samti. He denied that any hostile demonstration in front of the Police Post was raised. He remained at the cremation-ground from 8-30 p. m. to 11 p. m.
(14) The statement of accused Chaman Lal is on similar lines.
(15) Accused Kewal Krishan said that he was not in the procession and he had been arrested from his house.
(16) The statement of Chaila Ram accused is to the same effect and he has also added that he was an active member of Jan Sangh and had been sent to jail twice in connection with Hindi Raksha Samti agitation and for his reason he has been falsely implicated.
(17) Accused Sukhdev Singh has denied his presence in the procession and has stated that being an active member of Jan Sangh and having been jailed in connection with Hindi Raksha Samti movement, he has been falsely implicated.
(18) Accused Banarsi Das has denied his presence and stated that he had been arrested, next day from the Paper Mill gates and on account of his being a member of Jan Sangh workers, he was being falsely prosecuted.
(19) Accused Ram Baran denied his presence and stated that he was a member of Indian National Trade Union Congress. When asked to explain his injuries, he said that he had been beaten by the police after his arrest.
(20) Accused Amarnath denied his presence and stated that he was beaten by the police after his arrest. He also said that he was a paralytic and could not walk properly.
(21) Accused Agya Ram stated that he was beaten with lathis at the Police Post after his arrest from the Paper Mill Gate and that he was not present in the procession,
(22) Thus all the accused have denied their presence outside the Police Post and with the exception of accused Durga Das and Chaman Lal, the others deny having been in the procession. A number of defence witnesses were called by the accused.
(23) D.W. 4 is Shri G. C. Joshi, Secy. of Indian National Trade Union Congress, Yamuna Nagar. He said that Chohal deceased was a worker in the Paper Mill and had been tortured to death by the police. The dead body of Chohal was taken in procession through Yamuna Nagar to the cremation-ground and out of the accused only Durga Das and Chaman Lal were with the procession and they went along with the dead body and remained at the cremation-ground up to 10-30 p.m. along with him.
(24) D.W. 5 is Jangiri Lal Badhawan who said that he was President of the Congress Committee, Yamuna Nagar, and when the procession went towards Jagadhri town, he went to his house which is in Model Colony, Yamuna Nagar. He said that Durga Das and Chaman Lal were leading the procession. He then joined the procession at the Model Colony at 7.30 or 8 p.m. and the procession went straight to the cremation-ground and Durga Das and Chaman Lal were going along with it and he and they remained at the cremation-ground up to 10 p.m. He admitted that the processionists were raising slogans but said that there was no demonstration or any other incident in front of the Police Post. According to him, the slogan was 'Qatal ko saza do aur maqtul ka insaf karo (Murderer should be punished and justice should be done to the person murdered).
(25) D.W. 6 is Dr. Ram Lal Gandhi, a medical practitioner of Yamuna Nagar, who made a similar statement as the previous witness and said that the procession did not stop in front of the Police Post, and that there was no incident of pelting stones or setting fire to the trellis.
(26) D.W. 7 Dr. Puran Chand stated that Durga Das and Chaman Lal Bhatia went with the procession up to the cremation-ground.
(27) Statement of D.W. 9 Sonu, father of Chohal deceased, was also to the same effect and he added that no stones were thrown and nothing was set on fire.
(28) D.W. 14 said that the accused Durga Das was arrested by the police from his house.
(29) D.W. 15 stated that Sukhdev Singh was arrested from his house in the early hours.
(30) D.W. 16 Madan Lal also said that Kewal Krishan accused was arrested by the police form his house.
(31) Similar statement was made by D.W. 17 Raj Kumar as to the arrest of Chaman Lal accused from his house in the morning.
(32) D.W. 22 stated that Ram Baran accused was arrested by the police on his way to the office of Shri Joshi D.W. 4.
(33) D.W. 25 Muni Lal deposed that he saw the police arresting Agya Ram accused near the gate of the Paper Mill.
(34) The statements of the defence witnesses mentioned above do not carry conviction with me. I cannot accept their statements when they say that there was no incident outside the Police Post and no stones were pelted and the trellis was not set on fire. In making his statement, D.W. 6 Dr. Ram Lal has uttered a deliberate falsehood and has completely forfeited any claim to being regarded as a credible or a truthful witness. Similarly, D.W. 5 Jangiri Lal has also indulged in unabshed lies when he said that there was no demonstration or any other incident in front of the Police Post.
(35) I cannot accept the testimony of D.W. 4 Joshi when he stated that out of the accused only Durga Das and Chaman Lal were with the procession. According to him, near the Police Post Yamuna Nagar, the procession consisted of about 5,000 or 6,000 persons and he cannot say with any confidence that the other accused were not with the procession. It may be that he did not see them but I cannot accept his statement that only Durga Das and chaman Lal were with the procession and not the other accused. By indulging in barefaced lies, D.W. 4 Joshi, D.W. 5 Jangiri Lal and D.W. 6 Dr. Ram Lal Gandhi, have not served the accused but have stamped themselves as untruthful and unreliable witnesses.
(36) I cannot readily accept the denial of the accused especially of those who claimed that as office holders or active workers of political parties they had earned the ill-will of the local police, but they did not care to join the procession. This conduct of these accused strikes to me as strangely inconsistent. The minds of a very large number of persons had been worked up against the local police in consequence of the death of Chohal under suspicious circumstances and a big demonstration was organised when the body of Chohal was being taken over a route of nearly four miles for cremation.
It is not believable that those accused who were asserting their local importance and leadership, would have preferred to sit at home and not be seen in the procession even as ordinary sympathisers and thereby jeopardising their public position and local importance. They have attributed to the police their false implication on the ground that they have been voicing opposition to the authorities, though on this occasion they deny having done any such thing and contend that they did not go with the procession. This contention of their has struck me as a clumsy and coward device to assert their leadership and yet deny participation in the procession. This plea is singularly unconvincing.
(37) On the side of the prosecution, I must not lose sight of the fact that so far as the police witnesses are concerned, there would be a natural proneness to exaggerate the incident when members of the police force were targets of the processionists, displeasure who were raising slogans against them. But certain features of this case, the truth of which does not depend upon the acceptance or rejection of the word of mouth of witnesses remain indisputable. The large procession was organised in order to give vent to the popular indignation against the members of the police force who were believed to be responsible for torturing Chohal who succumbed to hi injuries. It is equally undeniable that slogans were being raised which disparaged the police and were intended to rouse feelings of hatred and indignation against them. It cannot be denied that stones were pelted freely as this is borne out by a number of injuries on the persons of the Superintendent of Police, a Head constable and several foot-constables.
The testimony of P.W. 2 Shri J. D. Khanna, the Sub-Divisional Magistrate, suffers from no lacuna or blemish and his statement could not be said to have been tinged with any feelings of partisanship. No satisfactory reason has been advanced for not accepting his testimony with respect to matters which he had himself witnessed. He saw the crowd and heard the slogans. According to him the crowd demonstrated in front of the Police Post for nearly two hours when they not only indulged in raising provocative slogans but also uprooted the trellis and burnt it and also indulged in indiscriminate stone throwing at the police. I accept his testimony when he says that he saw the accused Durga Das, Chaman Lal, Kewal Krishan, Chila Ram, Sukhdev and Agya Ram in the crowd. He also stated that at the top of his voice he declared the assembly to be unlawful and asked them to disperse but they would not.
(38) The above conduct of the assembly in front of the Police Post is indicative of its determination and resolution to indulge in rioting and in generally engaging themselves in objectionable activities with the primary purpose of inspiring terror in the minds of the police by acting in a concerted and tumultuous manner. Apart from denunciatory slogans, the conduct was threatening and to a substantial extent the threats had been carried out.
(39) I am not disposed to hold that the assembly from its very inception was unlawful from the place near the hospital from where they marched with the dead-body towards Yamuna Nagar and traversed a distance of about four miles. The processionists were no doubt in an agitated mood, they were uttering slogans which were provacative. I do no think that the metaphor made their language less objectionable as the incitement was ill-concealed and the members of the procession knew that the target was no imaginary fence (bar) but the local police. I will, however, not attach much importance to the effectiveness of the slogans in inciting persons to riot because even the most objectionable slogans may be parrot-like repetition lose their provocative character and the edge of irritation and exasperation is considerably blunted when objectionable words are repeated ad nauseum for a considerable length of time.
The aimless repetition of even dangerous slogans takes away the element of terror or awe. If the conduct of the assembly was confined to the shouting of the slogans I would have been diffident in spelling out the ingredients of S. 141 of the I.P.C. and would not have held that the police force would have felt overawed merely because of mouthing of the catch phrases by a clumsy crowd. I am of the view that such denuciatory exhortations or similar sing-song declarations by a tumultuous crowd ordinarily are not likely to inspire terror.
But in this case there were a number of other manifestations of the crowd's attitude and determination. Not being satisfied by a demonstration outside the Police Post for nearly two hours, they resorted to pelting of stones which actually injured a number of members of the police force including the Superintendent of Police and they also removed the trellis and burnt it. This Act of the crowd brought their conduct within the four corners of S. 141 I.P.C., 'First and Third Clauses'.
(40) It was argued by Shri Jagan Nath Kaushal that the assembly was lawful when it assembled and it refusal to disperse when asked to do so by the Sub-Divisional Magistrate will not make it unlawful. He also said that the common object of the assembly was to express its righteous indignation against the conduct of the police towards Chohal by raising shouts. If a few individuals were to take into their head to damage the trellis or to throw brick-bats on members of the police fore, their individual action could not be confused with the 'common object' of the persons composing the assembly.
In order to determine common object of the assembly, circumstances of the case, the attitude and deportment of the persons assembled very often furnish key to their mental bent. A person who encourages, or promotes, or takes part in rioting, whether by word, signs or gestures, or even by wearing the badge or ensign of all rioters, he becomes a rioter, for in this case all are deemed principals. On the other hand, a mere presence without encouragement is not enough to establish criminality. Vide R. v. Atkinson, (1869) 11 Cox CC 330. An incitor is in pari delicto with an acutal participator.
(41) I am alive to the great care that Courts should take in coming to the conclusion that the accused were members of an unlawful assembly and had for their common objects one or more matters as enumerated in S. 147 of the Indian Penal Code. A distinction, though sometime difficult, should always be made between mere lookers-on and participants. Courts should not fail to take note of the fact, that human curiosity is so strong that generally law abiding and well disposed citizens are attracted by the excitement It is difficult for people to curb their instinct of being drawn to a place which, for some unknown reason draw to a place which, for some unknown reason may have become a centre of excitement or unusual activities or happening.
In a crowd there usually are mere spectators and those who by their words, gestures or even by conduct encourage the riot. The latter class are without doubt participants. But on a large stage where the crowd assembles it is not always easy to distinguish between actors, who have assigned to themselves some active role, and others, who form the audience and content themselves by merely gazing on. But after an assembly is declared unlawful and asked to disperse, failure to do so is a sufficient indication of a behaviour from which it can justifiably be concluded that the persons assembled were members of unlawful assembly. But when an authorised person like a Magistrate commands an assembly to disperse after declaring it to be unlawful, so far as persons who are voluntarily and deliberately remaining there in disobedience to the proclamation, are no neutrals or curiosity smitten spectators.
(42) It is not necessary that the intention or the purpose which is necessary to render an assembly an unlawful one, need not come into existence at the outset. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time thereafter is lawful, may subsequently become unlawful, or even riotous. To constitute a riot, the original intention need not be riotous. The unlawfulness of an assembly depends on its behaviours, purpose for which it meets, the manner in which it expresses itself, and the means which are used by its members to consummate the common object, though the actual consummation of its purpose is not essential and it may remain unexecuted.
(43) In this case, both force and violence were used by members of the unlawful assembly. The use of force against the police and violence done to their property was in the prosecution of the common object of the persons assembled while engaged in voicerously denouncing the police and demonstrating against them. Whether force or violence were resorted to by one or more of those assembled there, the penal consequences apply equally to all, and the accused cannot escape from their liability. In my view, the accused were members of an unlawful assembly and were guilty of rioting, an offence punishable under section 147, Indian Penal Code, which is an aggravated form of the offence punishable under section 143 of the Code.
(44) While I have no misgivings as to the participation by all other accused, I, however, entertain some doubt regarding accused Amar Nath. He was a paralytic and he was injured in the melee. In his case there is a likelihood that it might have become difficult for him to obey the orders of dispersal given by the Sub-Divisional Magistrate. It is also probable that owing to his physical incapacity, having got into the crowd, he could not get away. His guilt does not appear to have been satisfactorily established and his conviction deserves to be set aside. I, therefore, find that the accused, other than Amar Nath, were rightly convicted under section 147, Indian Penal Code.
(45) The next question is whether the guilt of the accused under Section 332 read with Section 149. Indian Penal Code, has been established beyond reasonable doubt. When criminality is sought to be fastened vicariously with the aid of the provisions of Section 149, Indian Penal Code, the Courts have to scrutinise with anxious care, whether the offence of the accused falls within the four corners of Section 149, Indian Penal Code. In this case, the evidence against accused Durga Das, Chaman Lal, Kewal Krishan, Sukhdev and Banarsi Das is that they were pelting stones at the members of the police force and uprooting the trellis which was set on fire. As against Chaila Ram and Agya Ram, there is evidence that they were pelting stones at the police.
So far as the individual acts of stone-throwing and uprooting of the trellis are concerned, I feel satisfied as to the truth of the prosecution version. Regarding accused Amar Nath, I have already expressed my view that he was not a member of the unlawful assembly. No at of pelting of stones or of uprooting of the trellis has been imputed to him. I cannot reject the prosecution a evidence on the ground that not all but only a few of the prosecution witnesses had made reference to the pelting of stones, the uprooting of trellis and setting it on fire by the accused. This, to my mind, is an indication that they were not tutored witnesses but were stating what they had individually noticed as to what the different accused were doing.
It is true that if one member of an unlawful assembly suddenly takes into his head to commit offence which does not appear to have been in furtherance of any common intention, the other members of the assembly cannot be fastened with liability for the offence committed by that member. But according to the requirements of Section 149 a member of an unlawful assembly becomes vicariously liable if he has committed an offence either in prosecution of the common object of that assembly knew to be likely to be committed in prosecution of that object. The facts and circumstances of this case leave me in doubt whatsoever that the provisions of Section 149, Indian Penal Code, are attracted and the charge under Section 332 read with Section 149, Indian Penal Code, is established beyond all reasonable doubt.
(46) I, however, think that the deterrent effect of the punishment awarded to the accused other than Amar Nath, will not suffer if their sentences are reduced. I maintain their conviction under Section 332 read with section 149, Indian Penal Code, but reduce the sentence of each accused from one year's rigorous imprisonment to six months' rigorous imprisonment. The convictions and sentences imposed on these accused under section 147, Indian Penal Code, do not call for interference. The respective sentences under both the offences shall run concurrently. These accused are on bail. They are required to surrender to their bail-bonds and undergo the unserved portion of their sentences. As Amar Nath is acquitted, his bail-bond is cancelled.
(47) Order accordingly.