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Dasarathi Mahapatra Vs. Raghu Sahu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1909)ILR36Cal158
AppellantDasarathi Mahapatra
RespondentRaghu Sahu
Cases ReferredPoresh Nath Sircar v. Emperor
Excerpt:
rioting - common object of unlawful assembly--necessity of express finding on the point by the lower courts in their judgments--criminal procedure code (act v of 1898) sections 367 and 424--indian penal code (act xlv of 1860) sections 141 and 147. - .....the principal of which is that there is no finding in the judgments of the lower courts as to the common object of the unlawful assembly. he relies on the rulings in the cases of sabir v. queen-empress (1) and poresh nath sircar v. emperor (2) as authorities for holding that this is essential. the charge in this case was, however, properly drawn. the common object was therein stated to be to enforce a right or supposed right. now there was no contest in either of the lower courts as to the common object. nobody ever contended that the common object of the assembly, if any, was not to enforce a right or supposed right. the lower courts have, therefore, not discussed this question, and have come to no express finding, couched in so many words, on this point, but it is clear that they both.....
Judgment:

Rampini and Sharfuddin, JJ.

1. This is a Rule to show cause why the conviction of, and sentences passed on, the accused should not be set aside. The accused have been convicted under Section 147 of the Indian Penal Code of rioting, and sentenced to undergo rigorous imprisonment for a month and to pay a fine of Rs. 20. They have been found to have attacked the complainant and others, while cutting their paddy. The accused party were about 30 in number. This complainant was beaten and wounded and taken to the thana in a dhuli.

2. The main question debated in the lower Courts was as to the possession of the land. Both the Courts below found that the complainant had been in possession of the land since 1905. His predecessor-in-interest, that is, his father-in-law,. had obtained a decree in the Civil Court and had been put in possession of the land by the Civil Court, and an under-raiyat, named Shibo Jana, who had been in actual possession till then, had gone out and the complainant's father-in-law and the complainant had been ever since in direct possession and cultivation. The accused, had, therefore, no possible right to interfere with the complainant when cutting the paddy. They have been rightly convicted of an offence under Section 147 of the Indian Penal Code.

3. The learned Counsel for the petitioner impugns the conviction on technical grounds, the principal of which is that there is no finding in the judgments of the lower Courts as to the common object of the unlawful assembly. He relies on the rulings in the cases of Sabir v. Queen-Empress (1) and Poresh Nath Sircar v. Emperor (2) as authorities for holding that this is essential. The charge in this case was, however, properly drawn. The common object was therein stated to be to enforce a right or supposed right. Now there was no contest in either of the lower Courts as to the common object. Nobody ever contended that the common object of the assembly, if any, was not to enforce a right or supposed right. The lower Courts have, therefore, not discussed this question, and have come to no express finding, couched in so many words, on this point, but it is clear that they both impliedly have found that the common object of the unlawful assembly was as stated in the charge.

4. In the case of Sabir v. Queen Empress (1894) I.L.R. 22 Calc. 276 it is only said that 'there should be a clear (not an express) finding as to the common object,' and the reason for that expression of opinion was that in that case there were two possible common objects of the assembly, and it was not apparent which of them had been accepted by the Judge and the Jury. In the case of Poresh Nath Sircar v. Emperor (1905) I.L.R. 33 Calc 295, according to Mr. Justice Mookerjee, the judgment of the Magistrate contained no finding what the common object of the assembly was, and the facts found by the Sessions Judge completely negatived the common object set out in the charge, which, it is pointed out, was not stated with due precision. The accused were, therefore, held to have been prejudiced. The facts of the present case are very different. As has been already explained, there is no defect in the charge. It was never contended that the common object of the assembly was or could be other than that set out in the charge. No plea on the point was raised in either of the lower Courts, and from the judgments of both Courts it is clear that they found the common object of the assembly to be the same as stated in the charge. The accused have in no way been misled or prejudiced.

5. We discharge the Rule. The petitioners must be remanded to jail to undergo the remainder of their sentences.


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