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Kalil Munda and ors. Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal797
AppellantKalil Munda and ors.
RespondentKing-emperor
Excerpt:
conspiracy - abetment of conspiracy, what amounts to evidence of--attempt to murder--mischief by fire--indian evidence act (i of 1872) section 10--penal code (act xlv of 1860) sections 107,108, 109,117, 307, and 436. - 1. the appellants before us, who are twenty-three in number, have been convicted by the judicial commissioner of chota nagpore under section 436 coupled with section 109, section 307 coupled with section 109, and section 117 coupled with section 109 of the indian penal code, and each of them has been sentenced in respect of each of the charges under sections 436 and 307 read with section 109 to five years' rigorous imprisonment, the sentences running concurrently.2. the appellants are mundas or kohls in the district of chota nagpur, eighty-seven persons were committed to the sessions upon the charges already referred to, and upon certain other charges to which it is not necessary to refer. of these persons only twenty-three have been convicted by the learned judicial commissioner, the.....
Judgment:

1. The appellants before us, who are twenty-three in number, have been convicted by the Judicial Commissioner of Chota Nagpore under Section 436 coupled with Section 109, Section 307 coupled with Section 109, and Section 117 coupled with Section 109 of the Indian Penal Code, and each of them has been sentenced in respect of each of the charges under Sections 436 and 307 read with Section 109 to five years' rigorous imprisonment, the sentences running concurrently.

2. The appellants are Mundas or Kohls in the District of Chota Nagpur, Eighty-seven persons were committed to the Sessions upon the charges already referred to, and upon certain other charges to which it is not necessary to refer. Of these persons only twenty-three have been convicted by the learned Judicial Commissioner, the rest being acquitted.

3. The history of the district, the insurrection of the Kohls in 1831 the disturbances which broke out in the year 1858, the agitations which took place subsequently, and the grievances which the Mundas laboured under have been set out in the very careful judgment of the learned Judicial Commissioner, and it is unnecessary to recapitulate them. It will be sufficient here to mention that in the year 1895, a Munda named Birsa proclaimed himself to be an incarnation of the Deity, and established a sect known as the Birsa Bhagwani sect in that part of the country. The persons joining such sect would wear a thread, such as the higher castes of Hindus wear, and were forbidden to work on certain days of the week, to use leathern thongs for yoking oxen, to eat beef or to eat with those nob belonging to their own sect. It would further appear that Birsa impressed upon the followers of his sect the grievances under which the Mundas generally were labouring and that it was necessary to redress such grievances, and he preached that the British Raj had come to an end and that his kingdom had come. The result of all this was that shortly afterwards he was arrested and convicted under Section 505 of the Indian Penal Code and sentenced to two years' rigorous imprisonment. He was released in the year 1897, and he then held various meetings between February 1898 and the 24th December 1899, at various places; such as the Dumari Hill, the Sembura Hill, Geraiuit Banda Jaipur, Balo, Jalasur, Sattal, Poje, Kotogarah, Bhartodih, Bichakuti, and at other places, not necessary to mention; and the evidence shows, as has been correctly found by the Judicial Commissioner, that the employment of force and arson was advocated from the very earliest meetings, and that bloodshed was also contemplated and preparation of weapons was directed and in some of the more recent meetings, Christmas time, beginning with Christmas Eve, was fixed as the time of rising, and what was preached at these meetings was that Christians and officials and those not following his sect should be killed and their houses burnt.

4. The occurrences, with which we are immediately concerned in the present case are those which occurred on Christmas Eve at Sorwada Bungalow, where an outhouse was burnt, and Father Carbery was shot with an arrow, at Jamri village, where the house of one Joypal Singh was burnt, and at Muohia where Ghassi Ray's house was set on fire. That these occurrences actually took place there can be no doubt whatsoever; and the real questions that we have to determine in this appeal are, first, whether these occurrences were the result of a conspiracy, secondly, whether the appellants or which of them were members of that conspiracy.

5. On the same Christmas Eve, and during a few days following there were series of outrages, as the evidence indicated, and as the learned Judicial Commissioner has found over a large tract of country. Simultaneously, as it were, various houses were set on fire at night apparently without any special cause for enmity, and congregations of Christians assembled for their devotions on Christmas Eve were attacked with arrows, and other people were similarly attacked and wounded. There seems to have been several cases of murder, attempts at murder by means of arrows and axes, and there were many cases of arson.

6. Having regard to the similarity of these outrages and the large tract of country over which they occurred, there can be no doubt that the occurrences, with which we are immediately concerned, were the result of some conspiracy, and there can equally be no doubt that it was the preaching and exhortations of Birsa that brought about the said conspiracy.

7. Conspiracy is not a substantive offence in India. Section 107, however, of the Penal Code lays down the law of abetment of a crime, which incorporates in it the crime of conspiracy, and it runs as follows:

A person abets the doing of a thing who

First--Instigates any person to do that thing; or

Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy; and in order to the doing of that thing, or

Thirdly - Intentionally aids by any act or illegal omission the doing of that thing.

8. And there are two explanations of the section to which it is not necessary to refer.

9. Under the second Clause of the section it will be observed that, when the abetment is by conspiracy, the elements which constitute the offence are, first, the combining together of two or more persons in the conspiracy, and secondly, that an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Section 108, however, in explanation 2 provides that to constitute the offence of abetment 'it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused,' and in explanation 5 we have it that: 'It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the persons who commit it. It is sufficient, if he engage in the conspiracy in pursuance of which the offence is committed,' for in Russel on Crimes and Misdemeanours, Vol. I, 6th edition, page 492, conspiracy is stated to be a crime, which consists either in a combination and agreement by persons to do some illegal act or a combination and agreement to effect a legal purpose by illegal means, and that the crime of conspiracy is complete, if two, or more than two, should agree to do an illegal thing; that is, to effect something in itself unlawful or to effect by unlawful means something which in itself may be indifferent or even lawful. And further (page 528)--'Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan and with reference to the common object is in the contemplation of law the act of the whole party, and therefore the proof of such act would be evidence against any of the others, who are engaged in the same conspiracy; and further any declarations made by one of the party at the time of doing such illegal act, seem not only to be evidence against himself, as tending to determine the equality of the act, but to be evidence also against the rest of the party, who are as much responsible, as if they had themselves done the act.'

10. In this connection we desire to refer to Section 10 of the Evidence Act, which runs as follows: - 'Where there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy, as for the purpose of showing that any such person was a party to it.'

11. It will be observed that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence, and that being shown, anything said, done or written by any one of such persons in reference to their common intention may be proved both for the purpose of proving the existence of the conspiracy as also for showing that any such person was party to it.

12. The evidence in this case has to be considered, and we have considered it from the points of view which have been just indicated.

13. As already said there can be no doubt upon the evidence in the case, that there was a conspiracy for the purpose of doing such acts as formed the subject matter of the charges preferred against the appellants. They were charged with, and convicted of, abetment of the offence of arson committed in the three places mentioned, also of abetment of the attack on Father Carbery, and also of abetment of the commission of the various offences included in the charges by a number of persons exceeding ten; and the question which we have now to consider is whether each and' every one of these persons was a party to the conspiracy, which resulted in the acts referred to.

14. The evidence bearing upon the case of each and every one of these appellants has been so fully and dearly referred to, and discussed in the able judgment of the learned Judicial Commissioner that our task is rendered comparatively easy. The Judicial Commissioner and the assessors were agreed about a large majority of the persons who have been convicted, it is only in two or three instances that he differed from the assessors, and in two instances he, differing from the assessors, acquitted certain of the accused.

15. The first batch of persons with whom he deals are Chamra Kali, Malgu and Hatiram. There is another person whose case was also considered at the same time, namely, Soma; but we need not refer to that person any further, because he has been acquitted. The evidence shows that these persons attended the meeting held by Birsa at Kotagarrah on the 22nd December 1899, that is to say, two days before the outrages commenced; and it also appears that Kali, Chamra and Malgu were specially ordered by Birsa to particular places, viz., Chakradharpore, Chaibassa and Songraperch for the perpetration of the outrages contemplated, and we have it that Chamra actually went to Chakradharpore though nothing seems to have been done there. As to Kali, we have also the fact that within a few days before Christmas Eve he was keeping company with Birsa; and as to Malgu, there is evidence showing that on Christmas Day he invited other people to join him in the contemplated expedition.

16. The evidence as against these three persons seems to us to be conclusive that they not only attended a meeting or meetings held by Birsa, but actually accepted the conspiracy, and acted in furtherance thereof. Their conviction, therefore, seems to me perfectly right. But, as regards Hatiram, the evidence, to our minds, is not quite satisfactory. The learned Judicial Commissioner with regard to this man observed as follows:

17. With respect to Hatiram, besides the evidence of his presence at the meeting at Kotagarrah, there is the evidence of Kandi and Dukhra that he was one of the party who went to Chakradharpore with Chamra for the purpose of killing some one. It is true that on that expedition nothing seems to have been done, but the fact that the men engaged in it shows that they then fully accepted the conspiracy. In this case I consider that the independent evidence of Hatiram's presence at the meeting is sufficient corroboration of the accomplices' evidence against him.

18. It will, however, be observed that Kandi and Dukhra were accomplices, and though it is not illegal to proceed upon the evidence of such persons in convicting an accused person, yet it is a well-understood principle, and so it has been on many occasions held that it is unsafe to proceed upon the evidence of accomplices, unless such evidence is corroborated in material respects by independent evidence. Now the independent evidence that has been given in this case, and that is the testimony of Sangi and Pandi, simply shows that this man was present at the meeting at Kotagarrah.

19. This man was not directed by Birsa to do any particular act or to go to any particular place: and it does not appear that he was one of his procharaks, or inculcatcors of his doctrines, and there is nothing to indicate upon the evidence of those two witnesses that Hatiram accepted the conspiracy. No doubt the two accomplices, Kandi and Dukhra, do say that he went with them, Chamra and certain other persons to a certain place, Kutwatand about a mile from Chakru (Chakradharpore), but there they separated, Chamra, Baurea and the said two accomplices only proceeding on to the Raja's house at Chakradharpore, the rest of the party remaining at Kutwatand. So that upon the evidence of the accomplices themselves, Hatiram did not go to Chakradharpore. However that may be, that the man did accompany the accomplices Chamra and certain other persons in the expedition depends entirely upon the evidence of those accomplices, and there is nothing to corroborate their testimony in this respect. There is, in the first place, nothing to show that, beyond being present at the assembly at Kotagarrah, and that assembly only, Hatiram by his acts, conduct or words showed that he approved of the conspiracy or accepted the position of a conspirator, and we think it would be rather unsafe to convict him of the offence of abetment by conspiracy merely upon the incorroborated testimony of the accomplices and the fact that he was present at the meeting at Kotagarrah, does not in our opinion afford sufficient corroboration of the testimony of the accomplices.

20. In this view of the matter, we are unable to affirm the conviction of Hatiram. We accordingly acquit him.

21. The next man whose case the learned Judicial Commissioner has dealt with is Toke of Balo. The evidence as against this person seems to be quite sufficient. On the evidence, he appears to be a procharak of Birsa. He was present at two meetings, one on the Dumari Hill, and the other at his own house a month before' the day of the occurrences in question; and we have it upon the evidence of Satra Lohar that he purchased from that individual axes and arrow-heads two months before the occurrences.

22. The appeal of this person must, therefore, be dismissed.

23. The next man is Charra of Banda Joypore. He, too, appears to have been a procharak of Birsa. There is evidence that he attended these meetings, one at Jalasur, another at Toti's house, and lastly at his own house, and there is independent evidence showing that this man exhorted others to prepare arms, such as axes, bows and arrows. There can, therefore, be no doubt that this man entered into the conspiracy, and accepted the position of a conspirator.

24. His appeal will accordingly be dismissed.

25. The next man is Chorea of Marcha. He seems upon the evidence to have been an active adherent of Birsa. He exhorted various people to join in the conspiracy, and threatened others, when they would not agree to join. We have also the evidence of Poran Lohar, a blacksmith, who received from him large orders, that is to say, orders for nine battle axes and thirty-five arrow-heads, a month before the occurrences. And in addition to this we have the evidence that he was present at two meetings, one at Sattal and the other at Poji, in the same month when the occurrences took place, and in the month immediately proceeding.

26. Dulu of Dolda. There is no evidence upon this record as to the presence of this man at any of the assemblies, but there is good and satisfactory evidence showing that he exhorted other people to join the Birsaites, and threatened them when they refused to join; and it appears upon the evidence of Birsa Munda that it was upon the threat held out by the accused, that he was led to join the Birsaites, and he (the witness) was apprised of the meeting at Bharthodeh, and was requested by the accused to attend that meeting. The threat that was held out was that, if he did not join the Birsaites, he, the witness, would be killed with the Hakims and Ors. that did not follow Birsa, and that the Kingdom of Birsa would soon be established. We think there can be no doubt of this man's complicity in the conspiracy and his appeal must be dismissed.

27. Galua of Balunkel. The evidence shows that this man also exhorted other people to join the Birsaites, and held out threats to them of the approach of some great disaster in the month of Pous. That is to say at Christmas time. We think that there is no ground to interfere with the conviction in the case of this person.

28. Dubkal. The evidence proves that this man exhorted others to join the sect of Birsa, and wanted them to join in the coming disturbances, and that he went with the prisoner Ragga, to the witness, Budhu Lohar, to order the preparation of arrows. There is no reason to interfere with the conviction of this man.

29. Ragga. This man also seems to have been an active conspirator. He refused to pay a rent to the zemindar, because the Birsaites were going to have the kingdom. He exhorted other people to join the sect, and went to the witness Brinda Lohar, and a blacksmith Budhu to give orders for the preparation of arrow-heads and axes. The assessors, we might here mention, were in favour of acquitting this man, but upon a full consideration of the evidence and the judgment of the learned Judicial Commissioner, we think we ought to accept the opinion of that officer and not of the assessors.

30. The appeal of this man will also be dismissed.

31. Dukhu II of Banabera. The evidence shows that he attended the Sattal meeting, and took a leading part in it, and stated at that meeting that, until they began cutting and killing, they would never obtain the kingdom. There is some confusion in the evidence as to whether these words were spoken by this man or by the accused Dilgu, but it is quite clear that it was at the said meeting as also at the meeting at Poje that he took a leading part in asking Birsa for instructions, and promised obedience to the instructions then given. It is not necessary to discuss any further the evidence as against this man. But the Judicial Commissioner and the assessors were agreed in regard to his guilt, and we dismiss his appeal.

32. Suknath. He is the son of Chorea, whose case we have already discussed. It appears that he was present at four meetings, at the second Dumari meeting, at Toke's house, at Sattal and at Poje, and exhorted some other people to go to one of these meetings; and at the meeting at Poje the accused proposed to carry out the orders of Birsa. There can be no doubt as to the guilt of this man and his appeal must be dismissed.

33. Dilgu, Nohas and Baugra. The learned Judicial Commissioner disagreed with the assessors in regard to the two last mentioned individuals. The assessors were in favour of acquittal and the Judicial Commissioner for conviction. We have considered the evidence as against these three individuals, and it seems to us that there is really nothing to distinguish between the case of Dilgu, whom the assessors would convict, and the case of the other two individuals. All these three persons are shown by the evidence to have attended meetings at Sattal and at Poje, and the meetings which are said to have been held in the house of Dilgu himself, and in the house of Nohas; and though there is nothing to show what happened at the meeting in the latter house one may well presume that this meeting could not have been held without the assent of Nohas. The learned Judicial Commissioner has very carefully considered the evidence as regards these three persons, and we see no reason to differ from him. We may add that the evidence of Poran Lohar proves that all these three persons came to him with Chorea, and that the latter gave orders for the preparation of battle-axes and arrow-heads. There is no just reason to interfere with the conclusion arrived at by the learned Judicial Commissioner, and we accordingly dismiss the appeal of these persons.

34. Rankan of Birta Jamtolla. The evidence against this person is not very satisfactory. The first witness is Bhutka Munda. He says that in Kartick last year, that is to say, two months before the occurrences, the accused said to him under a jack-tree near his house, that he (the witness) ought to join the Birsaites; that on being asked for information on the subject the accused replied, that in the event of his joining the sect he would not have to listen to the orders of any one; that the post would be stopped, and all the Hakims, the priests and the procharaks, the Christians and Telis would be killed; that they would have the kingdom, and that this would happen in the month of Pous at the feast of the Christians.

35. Nobody was present when this communication is said to have been made, but the witness says he mentioned about it to Mongra Pahan, the uncle of the accused. This witness is the Munda of the village, but he did not inform the zemindar of what the accused had said. He, however, adds that he thought that the words of the accused were those of a lunatic; that there were no disturbances in the village, and that Mongra's son was not wounded in the village. Mongra Pahan, the next witness, and who is referred to by Bhutka, is the Pahan of the village and is the uncle of the accused. He says that he was requested by the accused to join the sect, that he having refused to do so the accused said: 'Look out, in Pous you will be cut down like the rahar, and that the Rajas and the Hakims would be out down at the same time.' The witness adds that his son was wounded on Christmas Eve in the village; that he told Bhutka about this, and the latter replied that the wound might have been caused by one of the Birsaites, and that Bhutka had said nothing to him of the intentions of the Birsaites before his son was pierced with an arrow. It will thus be seen that Bhutka is not corroborated by Mongra Pahan, the uncle. On the contrary the evidence of these two men is conflicting, We observe further that the uncle Mongra has not been on the best of terms with the accused. They have had litigations. The last witness is Lorgo Munda. He is the brother of Bhutka, and he speaks to what the accused told him in last Kartick; the accused then exhorted him to join the sect and that the Birsaites would obtain the kingdom by killing the Christians, the Sausars, the Rajas, etc It is stated that the witness told Mongra about this conversation, but not his brother Bhutka. In this respect neither Bhutka nor Mongra supports him, and we think that the evidence such as it is, is insufficient for a conviction. There is no evidence showing that this man was present at any one of the assemblies, and the only thing attributed to him is that he spoke to these three witnesses requesting them to join the sect; and telling them what was going to happen. We are unable to find upon this evidence that he was a party to the conspiracy, and we might add that the evidence is inclusive and not free from prejudice. He will accordingly be acquitted.

36. Kama alias Kalile II. This man appears to be a schoolmaster. He was formerly a Christian, and the evidence shows that he was present at the meeting at Sattal and Poje, and the witness Balku Mahto, who speaks to having seen the man at the assembly in his own place in Kartick or Aghran, was told by the accused that they were collecting subsoriptions for the fight for the kingdom in the High Court, and that those who did nob pay or join would be involved in the general destruction.

37. The assessors and the learned Judicial Commissioner were agreed as to the guilt of this person. That officer has very fully gone into the evidence so far as it affects him, and we think that that evidence is satisfactory.

38. His appeal must be dismissed.

39. Pilu of Poje. This person seems to have been present at the meeting at Sattal and Poje, and to have exhorted certain persons, who are witnesses in this case, to join the sect, telling them all that was coming on. Both the Judicial Commissioner and the assessors were agreed as to this person's guilt, and we see no reason to interfere with the conviction. His appeal will be dismissed.

40. Soma IV of Titi. The evidence against this man consists of the testimony of three individuals: Madho, Jetha and Johan. Madho Bays that one day in Aghran last year, that is to say, a month before the occurrences, Soma came to his place and exhorted him to join the sect, and he said that in doing so there would be great happiness. Upon the witness' refusal to do so Soma said: 'Look out in Pous the Rajas and the Hakims and you and all will be killed and then we shall have the kingdom.' The witness however did not mention about this to anybody of his own family, nor did he tell it to the zemindar, though he was the Mahto of the village. The witness says that he collects free labourers for the zemindar, and that Soma does not give such free labour; that Soma spoke to him of his own accord, no one else being present on the occasion, and that there were no outrages in his village. It is rather remarkable that the accused should have gone to the Mahto, an employee of the zemindar, for the purpose of persuading him to join the sect, and to a man, who, he must have known, was not very friendly towards him, because he would not give free labour. The next witness is Jetha Mundal. He is the Pahan of the village. He speaks of a conversation with Soma in Assar last year, that is to say, some months before the occurrence, and that he then mentioned about the coming disturbances in Pous. The witness, however, corrected himself by saying that it was not in Assar, but in the month of Aghran when the conversation took place, and that he did not tell anybody else about it except Madbu Mahto. But Madhu Mahto does not support him in this respect. The last witness is Johan Christian. In speaking about the meeting at Sattal in the month of Aghran last year, he says that Soma was there, but he does not say that he took any prominent part in that assembly, or that he by his words or conduct showed that he approved of the object of that assembly. We have considered the evidence against this man with some care, but we regret that we are unable to come to the same conclusion at which the learned Judicial Commissioner has arrived.

41. We accordingly acquit this man.

42. Ghunu. The evidence against this man we think is sufficient.

43. The learned Judicial Commissioner and the assessors were agreed about him. His appeal must be dismissed.

44. Retka of Turundu and Karam Singh of Chatradih. The learned Judicial Commissioner and the assessors both agree about the guilt of these two individuals; and we think that the evidence against them is complete and satisfactory, and there is no reason to interfere with their conviction.

45. Their appeal will be dismissed.

46. In the result the conviction and sentences against Hatiram of Kudabera, Rankan of Birta Jamtollah, and Soma IV of Titi are set aside; they will be acquitted and discharged. The convictions of the rest will be affirmed.


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