1. These two appeals were heard together as both arise out of the same judgment The two appellants have been convicted for various offences in connection with an occurrence, which took place at about 9 a. m. on 6-9-63 at Chhakauri Khanda in village Barni, 2 miles away from Masaurhi Police Station, in course of which twelve persons sustained gun-shot injuries and one of whom, namely. Hanslal Gope, succumbed at the spot as a result of the injuries. All the injured persons are residents of village Ashrafganj, and there is a pyne in village Barni, which is recorded under plot No. 498. The prosecution case is that the lands of village Ashrafganj also are irrigated by the water of this pyne, and for this purpose, the water comes from village Malkana. which is to the south and west of village Barni. A day or two before the occurrence Hirday Gope (P. W 20) and some others had gone to village Malkana to arrange for the flow of water in the pyne from that village, as there was a severe drought in that area at that time and the paddy crop was drying up for want of water. On the day prior to the date of occurrence, water was actually flowing along the pyne from village Malkana towards village Ashrafganj, but some time during the night before the occurrence, the flow of water was blocked by the appellants and others by putting a bundh in the pyne at Chhakauri Khanda in village Barni. On the morning of the day of occurrence, i. e., on the morning of 6-9-63, P W. 20 Hirday Gope and several other persons of Asharafganj went to Chhakauri Khanda and found that a mob of about 40 to 50 persons including the present appellants present at the Khanda and among them the two appellants were armed with guns, and the rest of the members of the mob were armed with falsa, garasa, bhala, lathi, etc. Appellant Ramanand was a gun-licensee, but the other appellants had no licence for having any such gun.
2. The Ashrafgani people further found three or four of the members of the mob engaged in putting earth on the bundh in order to strengthen it. They requested the members of the mob to allow the water to flow towards their village, but it was refused on this, some of the men of Ashrafganj cut the bundh and the water began to flow south-ward. As soon as this was done, some of the members of the mob ordered assault, and on this, the two appellants, Ramanand and Kripal started firing their guns upon the Ashrafganj people. According to most of the witnesses, Ramanand fired four rounds while Dripal fired three rounds and as a result of the firing of bullet by Ramanand. Hanslal was killed on the spot while eleven other persons, namely, P. W's. 1. Ramjatan Gowala, 2. Ram Briksha Prasad, 3, Lala Prasad, 4 Bandali Mian, 5. Bandhu Gope, 6. Rajendra Prasad, 7. Kripal Prasad, 8. Mehi Gope, 9. Dahu Gope, 10. Jugesbwar Prasad and 20, Hirday Gope, sustained various injuries some of them having sustained injuries as a result of firing by Ramanand and the others as a result of firing by Dripal. The appellants and other members of the mob fled away after this.
3. The Assistant Sub Inspector of Police, Jainarain Singh (P. W. 26), was returning at the aforesaid time from village Dhanarua, where he had gone on the preceding day, in connection with some investigation. At about 9.15 a. m. he arrived at a place a little west of village Barni, and then he heard a hulla corning from the north, and on looking to that direction, he found that some people had assembled at that place. He thereupon proceeded to the place, and on reaching Chhakauri Khanda met Friday Gope and other injured persons and also found the dead body of Hans-lal lying on a cot on the western alang of the pyne, where it had been removed in the meantime. This Assistant, Sub Inspector of Police then recorded the fardbeyan (Ext 2) at 9.30 a. m. on the basis of the statement of Hirday Gope (P. W. 20), and at this stage, a Sub-Inspector of Police of Masaurhi Police Station, namely, Gangadhar Sinha (P. W. 28), also reached there. It appears that prior to the above occurrence, an information had been received by Masaurhi Police Station about there being an apprehension of the breach of peace in village Barni and thereon Gangadhar Sinha (P. W. 28) had been deputed by the Officer-in-charge to this place. On his arrival at the spot, this officer took up the investigation of the case and under his direction, the Assistant Sub Inspector (P. W. 26) held inquest on the dead body of Hanslal and sent the same for postmortem examination. Sub Inspector Gangadhar Sinha then sent the other injured persons as well as the fardbeyan to Masaurhi police Station with a requisition to the Officer-in-charge to get the injuries of the injured persons examined by the doctor. From Masaurhi Police Station all the injured persons were sent to the State Dispensary at Masaurhi, where they were given first aid by Dr. B. D. Pandey (P. W. 12), who referred all of them to the Patna Medical College Hospital. These injured persons were subsequently examined at the Patna Medical College Hospital by P. W. 21, Dr. Bhu-pendra Jha. whose evidence as recorded in the court of the committing magistrate has also been tendered and admitted in the court of session under Section 509 of the Code of Criminal Procedure.
4. After sending the injured persons to Masaurhi Police Station. Sub Inspector Gangadhar Sinha inspected the place of occurrence and thereafter, at 6 p. m., B. C. Pandey (P. W. 27), who was then the Officer-in-charge of Masaurhi Police Station, reached the place of occurrence. This Officer then took up the investigation and again inspected the place of occurrence and then recorded the statements of some of the witnesses on that day and of others on subsequent dates. This officer, namely, B. C. Pandey (P. W. 27) submitted charge sheet on 3-10-63 as against the two appellants as well as sixteen other persons, who were all committed to the court of session after the usual enquiry under Chapter XVIII of the Code of Criminal Procedure.
5. The defence of the appellants as well as the other accused persons in the court below was that the Asharafganj people had no right to irrigate the lands in their village by the water of the pyne in question. They further alleged that the water flowed in this pyne not from village Malkana as alleged by the prosecution but from village Sanda and the lands of village Barni are irrigated from this pyne. According to them the Bundh in question was in existence from a long time and had not been newly put up by them. Most of the accused persons further alleged that they were not present at the time of the alleged occurrence. During his examination under Section 342 of the Code of Criminal Procedure, appellant Ramanand further stated that he had gone to see the Hudru Falls in the district of Ranchi three or four days before the date of occurrence and he had fallen ill while he was returning back and he was admitted for treatment in a hospital at village Angara. No evidence was, however, adduced in support of this plea of alibi nor was it pressed before us at the time of the hearing of the appeal.
6. The learned Additional Sessions Judge came to the finding that there were two bundhs in the pyne in question at Chhakauri Khanda from before the date of occurrence and he further held that the prosecution had failed to prove that the Asharafganj people had any right to irrigate their lands from the water of this pyne. According to him further, the water of this pyne comes from the river Sanda as alleged on behalf of the accused and not from village Malkana as alleged by the prosecution. He also held that one of the aforesaid two bundhs had been cut by the Asharaf-ganj people prior to the date of occurrence. His further finding was that on the morning of the day of occurrence, two mobs had gathered at the Chhakauri Khanda near the bundh in question, one of the mobs comprising the 2 appellants and several others and the other mob comprising the various prosecution witnesses and other men of village Asharafganj. He further held that the people of Asharafganj had gone there with the object of cutting the bundh and it was, therefore, not likely that they had gone unarmed, and they had actually cut the bundh in spite of opposition by the members of the other mob. His further finding was that after the bundh was cut by the Asharaf-ganj people, both the present appellants. namely, Ramanand and Dripal, fired at the Asharafganj mob, as a result of which twelve persons received gun-shot injuries, and among them Hanslal died at the spot. In view, however, of the finding that the Asha-rafganj people had no right to irrigate the lands from this pyne, the learned Additional Sessions Judge came to the finding that the charges under sections 147, 148 and 302/149 of the Indian Penal Code, which had been framed against all the accused persons, could not be substantiated as the alleged common object of the unlawful assembly was to obstruct the flow of water to Asharafganj. All the accused persons other than the two appellants were accordingly acquitted by him as they had been charged only under Section 302/149 of the Indian Penal Code and either under Section 147 or 148 of the Code.
7. So far as the two appellants are concerned, the learned Additional Sessions Judge came to the finding that Hanslal had been killed as a result of gun-shot injury caused by firing of gun by appellant Ramanand and he was accordingly convicted and sentenced under Section 302 of the Indian Penal Code to undergo rigorous imprisonment for life. Three of the injured persons, namely, Ramjatan (P W. 1), Kri-pal (P. W. 7) and Dahu (P. W. 9) were further held to have sustained their injuries as a result of firing of gun by this appellant, and he was accordingly convicted under Section 324 of the Code and sentenced to undergo rigorous imprisonment for two years. Similarly, three other injured persons, namely, Mahi Gope (P- W. 8), Jugeshwar Prasad (P. W. 10) and Hirday Gope (P W 20) were held to have sustained their injuries as a result of firing of gun by the other appellant Dripal, and he was accordingly convicted and sentenced under Section 324 of the Indian Penal Code to undergo rigorous imprisonment for two years. It was further held that this appellant was in possession of an unlicensed gun. and he was accordingly convicted under Section 25(1)(a) of the Arms Act also and sentenced to undergo rigorous imprisonment for two years. The sentences under the different sections were directed to run concurrently
8. The fact that twelve persons were injured as a result of gun-shots in course of the aforesaid occurrence, which took place at Chhakauri Khanda at the time alleged by the prosecution and that among them Hanslal died at the spot, as a result of the injuries, was not disputed before us. The prosecution case on this point is amply supported by the evidence of the injured persons, namely, P W's. 1 to 10 and 20 and the other witnesses of Asharafganj examined in this case, namely, P. Ws. 11, 13, 16 to 18 and 23, who all claim to have seen the occurrence. It may be added that the fact that all these persons are eye witnesses was not disputed before us. This version of the witnesses is further amply supported by the evidence of the investigating officers and the medical officers who examined the injured persons and held postmortem examination on the dead body of the deceased. As already stated, the Assistant Sub Inspector of Policy, Jainarain Singh (P. W. 26) found the dead body of Hanslal lying in Chhakauri Khanda and he found other injured persons also there when he leached the place at about 9-30 a. m. that is, within about 30 minutes after the occurrence. P. W. 27, B. C. Pandey, who was the then Officer-in-charge of Masaurhi Police Station deposed about having found injuries on P. Ws. 1 to 10 and 20 when they reached the police station after being sent by the aforesaid Assistant Sub Inspector of Police and he thereafter sent them to the Masaurhi hospital after preparing injury reports. Dr. B. D. Pandey (P. W. 12), who was then in-charge of the Masaurhi Hospital merely rendered first aid to the injured persons and then sent them to the Patna Medical College Hospital where they were examined by Dr. Bhupendra Jha (P. W. 21). The evidence of this doctor, as recorded by the Committing Magistrate and tendered under Section 509 of the Code of Criminal Procedure, shows that he found multiple punctured wounds on different parts of the bodies of eight of the injured persons, namely, P. W. 1 (Ramjatan Gowala), P. W. 6 (Rajen-dra Prasad). P. W. 10, (Jugeshwar Prasad) P. W. 4 (Bandali Mian), P. W. 5 (Bandhu Gope), P. W. 3 (Lala Prasad), P. W. 8 (Mehi Gope) and P W. 20, (Hriday Gope). He further found one punctured wound on the person of P. W. 2, two penetrating wounds on the person of P Ws. 7 and 4 penetrating wounds and 2 punctured wounds on different parts of the body of P. W. 9. All these persons except P. W. 10 were examined by him on 7-9-63 at about 2 A. M. while P W. 10 was examined at 7 A. M. on the same date. According to this doctor, the injuries found by him on all these persons were caused by gun shots within 24 hours. P W. 19, Dr. K. Singh, who was a Police Surgeon at Patna and whose evidence, as recorded by the Committins Magistrate. has also been tendered and admitted into evidence under Section 509 of the Code of Criminal Procedure, held post-mortem examination on the dead body of Hanslal at 2 P M. on 7-9-63 and found the following injuries on his person:
1. Oval charred margin wound on the right temple 1/2" diameter x skull cavitv
2. Abrasion on the left side of the neck 1/2" x 1/2".
3. Swelling on the left temporal and mastoid region 2" x 2"
4. Bleeding from both ears.
5. Brain was lacerated and a track of lead shot was found from the right temple to left temple and masloid region
6. A hole of 1/2" diameter was present in the right temporal bone and bout 2" diameter in the left temporal bone.
The doctor further stated that one lead shot of about 1/2" diameter was removed from the skull cavity of the deceased. According to him, all the injuries were caused by fire arm, may be gun shots, and the death was due to shock as a result of haemorrhage from the above injuries. During his examination in the sessions court, he further stated that injury No. 1 was sufficient to cause death in the ordinary course of nature and injury No. 2 could have been caused by fall also. In view of all the above evidence, there cannot be the slightest doubt as to the truth of the prosecution case about as many as 12 persons having sustained various injuries as a result of the firing of guns during an occurrence which took place at Chhakauri Khanda at the time as alleged by the prosecution and as to one of these persons, namely, Hanslal having died at the spot as a result of the injuries sustained by him.
The finding of the learned Additional Sessions Judge as to the circumstances in which the firing of the guns causing injuries to the aforesaid persons took place was not challenged before us either on behalf of the appellants or on behalf of the State and, as a matter of fact, both the parties made their submission before us on the basis that these findings are correct. The evidence on the point has been elaborately discussed in the judgment of the learned Additional Sessions Judge and it is, quit unnecessary to refer to all these evidence in our judgment as we fully agree with the finding that in the morning of the day of occurrence two mobs had assembled at Chhakauri Khanda, one comprising the people of Ashrafgani who had gone there with an intent to cut the bandh on the pyne for the purpose of making the water flow on for irrigation of their lands in village Ashrafganj, while the other mob had gathered for preventing the cutting of the bandh; and that the bandh was actually cut by some men of Ashrafgani in spite of objections by the other mob and then the firing of guns on Ashrafgani people took place.
9. The point next to be considered is whether the two appellants were the persons who fired guns causing injuries to the aforesaid 12 persons and if the firing by appellant Ramanand caused the death of Hanslal and injuries to P. Ws 1, 7 and 9 (Ramjatan, Kripal and Dahu respectively) and if the firing by Dripal Gope caused the iniuries to P. Ws. 8. 10 and 20 (Mehi Gope. Jugeshwar Prasad and Hriday Gope. respectively As already mentioned, although a plea of alibi was raised by appellant Ramanand during his examination under Section 342 of the Code of Criminal Proce-cedure in the court below, no evidence was adduced in support of this plea and this was also not Dressed before us. The fact that these two persons were actually present in the mob and that it were they who fired the Runs was also not disputed before us. All the surviving injured persons, namely, P. Ws. 1 to 10 and 20 as well as the other witnesses of Ashrafganj examined in the case, that is. P. Ws. 11, 13, 16 to 18 and 23 have deposed as to these appellants being the two persons who fired their guns on Ashrafganj people, as a result of which 12 persons sustained injuries. There is no cogent reason whatsoever for disbelieving their evidence on this point and hence there cannot be the slightest doubt that the two appellants were the persons who fired guns on the Ashrafgani people, as a result of which as many as 12 persons were injured and one of them succumbed to his iniuries at the spot.
10. It was, however, contended on behalf of the two appellants that the evidence of the witnesses about appellant Ramanand being the person whose shots killed Hanslal and injured P. Ws. 1, 7 and 9 and as to appellant Dripal Gope being the person whose shots injured P. Ws. 8, 10 and 20 should not be accepted in view of certain contradictory statements made by the witnesses as to whose shot hit which person and as to the order in which these two appellants fired their guns and the number of shots fired by each of them. It appears that most of the witnesses have deposed about appellant Ramanand having fired four rounds and appellant Dripal Gope having fired three rounds, but some of the witnesses have specified the number of rounds fired as being larger. It also appears that there is some discrepancy in the statements of the witnesses as to the order in which the different shots were fired by appellants Ramanand and Dripal. Such discrepancies however, are bound to occur when different witnesses depose about such an incident from their memory sometime after the occurrence In this connection it may be mentioned that these witnesses were examined in the sessions court in September and October, 1964 that is. more than a year after the occurrence As regards the contradictory statements of witnesses on the point as to whose shot hit which person, it appears that appellant Ramanand has been charged under Section 324 of the Indian Penal Code for causing iniuries to four persons, that is. P W 1 Ramiatan Gowala. P W 7 Kripal Prasad. P . W . 9 Dahu Gope and P W 3 Lala Prasad while appellant Dripal Gope has been charged under Section 324 of the Indian Penal Code for causinp iniuries to four other persons besides P W 8 Bhekha Gope, P. W. 10 Balgovind Gope and P. W 20 Hriday Gope. The court below did not accept the version about the injuries on Lala Prasad (P. W 3) having been caused by appellant Ramanand and those of the four persons other than P. Ws. 8. 10 and 20 having been caused by Dripal. on a consideration of the contradictory statements of the witnesses as to the persons who caused injuries on these per- sons and other features. That Court, however, accepted the version about P. Ws. 1, 7 and 9 having been injured by appellant Ramanand and P. Ws. 8, 10 and 20 having been injured by appellant Dripal. It appears that so far as P. W. 1 Ramjatan was concerned, he himself as well as five other witnesses, namely, P. Ws. 2, 3, 5,7 and 13 have deposed that he was hit by gun shot of appellant Ramanand. As regards the injuries on P. W. 7 and P.W. 9, however, the only witnesses who have deposed about the injury on P. Ws. 7 Kripal having been caused by Ramanand are Kripal himself and P. W. 5 Bandhu Gope and, similarly, the only witnesses who have deposed about the injuries on P. W 9 Dahu Gope having been caused by appellant Ramanand are Dahu himself and P. W. 4 Bandali Mian. It may, how ever, be mentioned that none of the other witnesses had made any statement as to which of the appellants caused injuries on Ramjatan, Kripal and Dahu. As for the prosecution case regarding the appellant Dripal being the person whose gun shots caused the injuries on P. Ws. 8, 10 and 20, it appears that the only witnesses who deposed about P. W. 8 Mehi Gope and P. W. 10 Jugeshwar havine been injured by gun shots of appellant Dripal are those two Injured themselves, while so far as P. W 20 Hriday Gope is concerned, the only witnesses who have deposed about Hriday having been hit by gun shot as a result of the firing by Dripal are Hriday himself and P W. 2 Ram Briksha Prasad. It appears, however, that according to P. Ws. 6 and 13, Hriday sustained his injuries as a result of the firing by appellant Ramanand; according to P. W. 7, both Hriday and Jugeshwar sustained their injuries as a result of the firing by Ramanand and according to P. W. 5, Jugeshwar sustained his injuries as a result of the firing by Ramanand. It would thus appear that apart from the fact that no witnesses except injured Mehi Gope and Jugeshwar themselves have deposed about their respective injuries havine been caused by Dripal and no witness except injured Hriday himself and one P. W. 2 Ram Briksha Prasad have deposed about the injuries on Hriday having been caused by Dripal, there is evidence of other witnesses to the effect that the injurie on Jugeshwar and Hriday were caused as a result of the firing by appellant Ramanand. In face of these conflicting statements, it will not be safe to act or the testimonies of Jugeshwar and Mehi about the injuries on them having been caused by the firing of Dripal and the evidence of Hriday and P. W. 2 Ram Briksha Prasad about the injuries on Hriday having been caused as a result of the firing of gun by Dripal. The possibility of these three persons having sustained their injuries as a result of firing of the gun by appellant Ramanand cannot be excluded in the cir- cumstances. The prosecution case about Ramjatan having sustained his Injuries as a result of the firing by appellant Ramanand, is, however, quite consistent, for as already mentioned, as many as five witnesses besides injured Ramjatan have deposed to this effect and their /ersion on the point has not been contradicted by any other witness. It is, no doubt, true that two of them, namely, P. Ws. 3 and 5 did not mention about the injuries on Ramjatan having been sustained as result of the firing of gun by appellant Ramanand during their examination by the Investigating Officer, but even if their evidence on this point is excluded, this version is supported by three other witnesses besides Ramjatan. There is thus no cogent reason for disbelieving the evidence of these witnesses on the point and accordingly I agree with the finding of thp court below about Ramjatan having sustained these injuries as a result of the firing of gun by appellant Ramanand As regards the injuries on P W. 7 Kripal Prasad and P. W. 9 Dahu Gope, only one witness besides each of the injured has supported the version that these persons sustained injuries as a result of the firing of guns by appellant Ramanand. It, however, appears that neither P W. 4 Bandali Mian nor P. W. 5 Bandhu Gope, who have deposed in court about the injuries on Dahu (P. W. 9) and Kripal (P. W. 7) respectively having been caused by appellant Ramanand, has made any statement to that effect during their examination by the Investigating Officer. In these circumstances, it would be unsafe to act on the testimony of the witnesses about the injuries on Dahu (P. W. 9) and Kripal (P W. 7 havine been caused as a result of the firing of the gun by appellant Ramanand. It must, however, be pointed out that although on the evidence, discussed above, the prosecution case about Ramanand having caused injuries to P. Ws. 7 and 9 and Dripal having caused injuries to P. Ws. 8. 10 and 20 cannot be held to have been established, and the possibility about P. Ws. 7 and 9 having been injured as a result of the firing of sun by Dripal and P. Ws. 8, 10 and 20 as a result of the firing of gun by Ramanand cannot be excluded, this is hardly of any importance. As it is fully established that both appellants Ramanand and Dripal fired their guns upon the mob comprising Ashrafganj people, there cannot be any doubt that they did so in furtherance of a common intention to cause injuries on these persons thereby and the fact that they had such a common intention is amply proved by the fact that each of them fired more than one round and their acts resulted in the injuries to a targe number of persons. Hence, appellant Ramanand must be held to have committed an offence under Section 324 read with Section 34 of the Indian Penal Code to far as the injuries on Kripal (P. W. 7) and Dahu (P, W. 9) are concerned and, similarly, appellant Dri-pal must be held to have committed an offence under Section 324 read with Section 34 of the Indian Penal Code so far as the injuries of P. W. 8 Mehi Gope, P. W. 10 Jugeshwar Prasad and P. W. 20 Hirday Gope are concerned, unless it is found that they are protected by right of private defence.
11. Coming now to the question as to whether the injuries on Hanslal were caused as a result of the firing of sun by appellant Ramanand, it appears that the prosecution version on this point has been supported by all the eye witnesses examined in this case except P. Ws. 11 and 18 who have" not said anything as to whose shot injured which of the injured persons. It was contended that the evidence of the aforesaid witnesses should not be relied upon as there was almost simultaneous firing of guns by the two appellants and it was, therefore, not possible for the witnesses to see whether Hanslal sustained any injury as a result of the firing of gun by appellant Ramanand or by appellant Dri-pal. The incident, however, took place in a broad day light and most of the witnesses had seen the incident from a close distance, for as many as 11 out of them had themselves sustained injuries as a result of the firing of guns. In these circumstances as Hanslal was the only man who was killed at the spot as a result of the firing of the gun, there is no cogent reason for disbelieving the positive testimony of all the witnesses about having seen Ramanand firing the shot which hit and killed Hanslal. There is. no doubt, some discrepancv in the statements of the witnesses as to which shot of Ramanand hit Hanslal, but as already mentioned above, such a discrepancy is bound to occur when witnesses depose about such an incident from their memory some months after the incident This by itself is no ground for discarding the positive testimony as to Ramanand being the person whose shot hit Hanslal. I, therefore, fully agree with the finding of the learned Additional Sessions Judge that if was the shot of Ramanand which hit Hanslal and caused the injuries resulting in his death.
12. The next point to be considered is as to whether the appellants are protected by right of private defence. In this connection, it may be mentioned at, the very outset that the finding of the court below that Ashrafganj people had no right to take water of this pvne for irrigation of their lands in village Ashrafganj was not seriously challenged on behalf of the State. The evidence on this point also has been fillly discussed by the learned Additional Sessions Judge and it is, therefore, unnecessary to refer to the same as we fully agree with the finding on this point in view of the evidence as discussed by him. The court below further found that there were two bundhs in this pyne at Chhakauri Khanda and one of these bundhs was cut by the Ashrafganj people earlier to the occurrence, although they had no right to do so and the other bundh was being repaired by the members of the mob comprising the appellants when the Ashrafganj people came and cut in spite of their protest and then the firing was resorted to. These findings, as already stated, are not disputed and are fully supported by the evidence, as discussed by the court below. As the Ashrafganj people had no right to take water from this pyne and they had apparently committed an offence of mischief by cutting the aforesaid bundh, the appellants and other members of the mob had a right to prevent the commission of further mischief by cutting the bundh any further. The aforesaid act of the Ashrafganj people can also be held to constitute an offence of theft because as a result of the cutting of the bundh the water of the pyne, to which they had no right, began to flow towards the south on its way towards their own village. It must, however, be pointed out that under Section 103 of the Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99. to the voluntary causing of death in case of theft or mischief, when such theft or mischief is committed in such circumstances as may reasonably cause an apprehension that death or grievous hurt will be the consequences if such right of private defence is not exercised. According to the evidence of the prosecution witnesses, the Ashrafganj people were quite unarmed when they went to Chha-kauri Khanda, but the learned Additional Sessions Judge has held that it was not likely that they were unarmed when they had gone there with the intention of cut-ting the bundh. Even if the Ashrafgan.i people had any arms with them, there is no allegation nor even any suggestion that they made any attempt to use their arms upon the members of the other mob or even made any threat or movement which might have caused an apprehension in the minds of the members of the other mob that they are going to use their weapon upon them. In view of this fact, it cannot be said that the theft or mischief in question was committed in such circumstances as might have reasonably caused an apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. It follows, therefore, that so far as causing of death to Hanslal is concerned, this is not protected by the right of private defence of of property and there cannot be any doubt that the offender had exceeded his right of private defence so far as this narticular offence is concerned, as the circumstances of the case did not entitle him to go to the extent of causing death. In view, however of the provisions of Exception 2 of Section 300 of the Indian Penal Code, the offence in question comes under the purview of Section 304 Part I and not under Section 302 of the Indian Penal Code. It was contended in this connection by Mrs. D. Lal that in firing the guns, the appellants had no intention of causing death or such bodily injury as was likely to cause death nor had they any knowledge that this was likely to cause death and their object was only to scare away the people by causing some injuries. This contention, however, cannot be accepted in view of the fact that, as shown by the medical evidence, the injuries to most of the injured persons were caused on the chest and other vital parts of the body while" the fatal injury on Hanslal himself was caused by means of a bullet on the head itself. It is, no doubt, true that the firing took place from some distance for, as shown by the evidence of one of the Investigating Officers (P. W. 28), the place where Hanslal fell down injured was at a distance of 34 steps from the bundh. It is apparent, however, that the distance from which the firing took place was inside the range within which death could be caused as a result of such firing. On a consideration of these aspects, there cannot be the least doubt that the firing of guns was made not merely with the intention of scaring away the people by causing minor injuries, but with the intention of causing death and with the intention of causing such bodily injury as was likely to cause death. Hence, there cannot be the slightest doubt that the offence as committed by appellant Rama-nand in causing the death of Hanslal is an offence which comes under the purview of Section 304 part I of the Indian Penal Code.
13. I may mention in this connection that even if it had been held that the prosecution case about the injuries on Hanslal having been caused as a result of the firing of gun by appellant Ramanand has not been established beyond reasonable doubts, there could not be any escape for Ramanand from conviction under Section 304 read with Section 34 of the Indian Penal Code, for, whether the death was caused as a result of shots fired by him or by Dripal, there cannot be the slightest doubt that this was caused in furtherance of a common intention of both of them. As such, he would have been guilty under Section 304 read with Section 34 of the Indian Penal Code, if it had been found that the prosecution case about Hanslal having been injured as a result of the shot by him has been established. This contingency of convictine him under Section 304 read with Section 34 of the Indian Penal Code, however, does not arise in view of the finding that it was his shot which killed Hanslal.
14. So far as the injuries on P. Ws. 1, 7, 9 and 8, 10 and 20 are concerned, however, neither Ramanand nor Dripal can be convicted under Section 324 or Section 324 read with Section 34 of the Indian Penal Code for causing the injuries, as in view of the findings above, their act of causing such injuries is protected by the right of private defence of property as laid down by Section 97 of the Indian Penal Code, as such right was exercised within the limits prescribed by Section 103 of the Indian Penal Code.
15. The only other point necessary for consideration is the conviction of appellant Dripal under Section 25 (1) (a) of the Arms Act The fact that he was in possession of a gun at the time of the occurrence was not disputed and this is fully established by the evidence of a large number of witnesses who had seen him actually firing the gun. The prosecution case that he had no licence for possession of such a fire arm is not disputed and it was neither suggested that he had any such licence nor was any licence produced by him to show that he was a sun licensee; as such, there cannot be any doubt that he had committed an offence under Section 25 (1) (a) of the Arms Act. It was, however, contended on his behalf that his trial and conviction for this particular offence are altogether illegal as the previous sanction of the District Magistrate in accordance with Section 39 of the Arms Act had not been obtained before the institution of the prosecution against him for this offence
16. In order to appreciate this point, it is necessary to refer to some of the facts arising in connection with the trial of appellant Dripal with respect to the charge under Section 25 (1) (a) of the Arms Act. It appears from the charge sheet that after the investigation was completed, the police submitted a charge sheet dated 3-10-63 as against the accused persons under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code as well as Section 25(a) of the Arms Act. The Subdivisional Magistrate, however, did not take cognizance of the case under Section 25 (a) of the Arms Act and. as shown by his order dated 13-10-63. He directed that the case will proceed under Section 302 read with Section 149 of the Indian Penal Code and transferred it to the court of Shri N K. P. Bhagat. Magistrate 1st. Class, for disposal according to the law. After some adjournments for various reasons in the court of Shri N. K. P. Bhagat, Munsif Magistrate order was passed on 18-2-64 to the effect that commitment proceeding would be conducted and the dates 9-3-64 to 11-3-64 were fixed for examination of the witnesses. On 9-3-64, a petition was filed by the A. D. P. for adjournment on the ground that the sanction order of the District Magistrate for prosecution under the Arms Act had not been passed till then and the case was accordingly adjourned to 1-4-64 waiting for the sauction order. On 1-4-64 a prayer was again made by the A. D. P. for further time for bringing the sanction order and time for one week was allowed. On the next date, that is, 8-4-64, the A. D. P. again applied for time on the same ground as well as some other ground and, as would appear from the order passed on this date, it was contended in this connection by the Counsel of the accused persons that the sanction order of the District Magistrate could be obtained even at a later stage. However, the court rejected the prayer for grant of time on the ground that further adjournment would cause harassment to the accused and one of the witnesses was examined on this date. Thereafter, some further witnesses were examined on 17-4-64, 18-4-64 and 7-5-64, when the case was adjourned to 27-5-64 and on this date the case was again adjourned to 9-6-64 as the remaining witnesses did not turn up. In the meantime, the case was transferred to another Munsif Magistrate Shri A. N. K. N. Singh as per order of the Sessions Judge dated 3-6-64. On the date fixed, that is, 9-6-64, the case was adjourned to 10-6-64 as the Munsif Magistrate was absent. Some more witnesses were examined on 10-6-64 and 13-6-64 and on the closure of the prosecution case, the accused persons were examined under Section 342 of the Code of Criminal Procedure on 19-6-64, Thereafter, arguments were heard on 20-6-64 and the commitment order was passed on 2-7-64. It appears that although in the hearing portion of the commitment order, Section 25 (a) of the Arms Act has been mentioned, there is no reference to this section at all in the order itself as passed by the Committing Magistrate and no charge under this section was framed by that court. When the case came up for trial before the Additional Sessions Judge, however, some of the charges as framed by the Committing Magistrate under different sections of the Indian Penal Code were amended as per order passed on 21-9-64 and a fresh charge under Section 25 (a) of the Arms Act was framed against appellant Dripal and some fresh charges under Sections 147 and 148 of the Indian Penal Code were also framed. The trial of appellant Dripal in the sessions court for the offence under Section 25(a) of the Arms Act was thus taken up on basis of the fresh charge as framed in the court of the Additional Sessions Judge, although no such charge had been framed by the Committing Magistrate. It may be mentioned here that the sanction order of the District Magistrate for prosecution of the offence under Section 25 (a) of the Arms Act had been passed in the meantime on 10-5-64, that is, while the case was still pending in the court of Shri N. K. P. Bhagat, Munsif Magistrate.
17. The contention on behalf of the learned Counsel, appearing for appellant Dripal, was that as the sanction order of the District Magistrate had not been passed before the initiation of the proceeding against this appellant, neither the Committing Magistrate nor the Additional Sessions Judge was competent to frame any charge against this appellant under this section and, as such, the trial of the appellant for this offence is altogether illegal. In this connection, reliance was placed on the Full Bench decision of the Allahabad High Court in the case of Emperor v. Md. Mehdi, AIR 1934 All 963 (FB). It appears that in that case, the accused was alleged to have committed an offence under Sections 81 and 82 of the Registration Act and the commitment enquiry was proceeded with without obtaining the previous sanction of the registration authorities, as required under Section 83 of the Registration Act. The sanction order was procured after the commitment of the accused to the sessions court on charges under the aforesaid sections, but before the trial in the Sessions Court. It was held that the commitment itself was altogether illegal and not merely irregular and as the Sessions Judge could take cognizance of a case under when it had been properly committed to his court, he had no option but to refer the case to the High Court for quashing the commitment proceeding. This case is evidently distinguishable from the present case, firstly because, there has been no illegality whatsoever in the commitment order as actually passed by the Committing Magistrate in the present case as no commitment was made by him for the offence under Section 25 (a) of the Arms Act and also because in the present case, the required sanction order had been passed on 10-5-64 long before the commitment order which is dated 2-7-64 (the date 2nd June, 1964 noted on the top of the commitment order is a mistake for 2nd July, 1964). A decision of the Bombay High Court in the case of Emperor v. Bhimaji Venkaji, AIR 1917 Bom 33 was also cited before us. It appears that in this case the accused was a Government employee and sanction under Section 197 of the Code of Criminal Procedure was necessary for his prosecution. The Committing Magistrate started examination of the witnesses before the sanction order was passed and this order which had been passed after examination of some of the witnesses was produced before him on the day on which he passed the commitment order. It was held that as the Committing Magistrate had proceeded to record the whole of the evidence without being aware of the existence of any sanction order, the whole proceeding was without jurisdiction and invalid. It transpires that in this case it was also found that the Committing Magistrate had taken into consideration certain executive instructions in determining whether commitment should be made or not and on this ground also the commitment order was held to be invalid. The position in the present case is, however, quite different, for as already pointed out, when the Sub-divisional Magistrate took cognizance of the case on 13-10-63, he did not proceed for the offence under Section 25(a) of the Arms Act, apparently because no sanction order had been obtained till then. In the commitment court, adjournments were granted for the purpose of obtaining the sanction order and, thereafter, the case was proceeded with as it was found that further adjournment would cause harassment to the accused. That court was evidently entitled to proceed against the accused persons for the offences under the different sections of the Indian Penal Code and it was not necessary for it to wait for the sanction order for conducting the proceeding with respect to the offences under- the Indian Penal Code. There was thus no illegality whatsoever in the commitment proceeding itself. The question, however, arises as to whether in such circumstances the charge under Section 25(a) of the Arms Act could be lawfully framed in the sessions court when there was no order of commitment for the offence under Section 25 (a) of the Arms Act. In this connection, reference may be made to the provisions of Section 226 of the Code of Criminal Procedure, which runs as follows:--
"When any person is committed for trial without a charge, or with an imperfect or erroneous charge the court or in the case of a High Court, the clerk of the State may frame a charge, or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this code as to the form of charges".
Under Clause (1) of Section 193 of the Code of Criminal Procedure, a court oi session cannot take cognizance of an offence as a court of original jurisdiction unless the accused has been committed to it by a magistrate duly empowered in that behalf. except as otherwise expressly provided by the Code. Hence, in view of the above provision of Section 226 of the Code of Criminal Procedure, there cannot be any doubt that once a commitment to the sessions court is made by a competent court, the sessions court has jurisdiction to amend or add to the charges as framed by the committing magistrate and also frame fresh charges if it finds that the commitment has been made without a charge or with an imperfect or erroneous charge. This section, invests the sessions court with an all comprehensive power of remedying defects arising out of framing of charge or non-framins of charge by a committing magistrate. It must, however, be pointed out that as this section is intended to empower the sessions court for remedying the defects arising out of the failure of the committing magistrate to frame a charge or to frame a proper charge, the jurisdiction of the sessions court under this section must be considered as limited to the framing of such charges only as could have been framed by the committing magistrate himself. Hence, if a particular charge could not have been lawfully framed by a committing magistrate either for want of sanction order or other reasons, Section 226 of the Code of Criminal Procedure cannot be held to empower the sessions court to frame such a charge after the commitment of the accused to his court. It has, therefore, to be seen if in the present case a charge under Section 25(a) of the Arms Act could have been legally framed by tha committing magistrate as against the present appellant in view of the fact that the sanction order as required under Section 39 of the Arms Act had already been passed on 10-5-64 long before the passing of the commitment order itself. It may also be mentioned in this connection that a petition was filed in the court of the committing magistrate on 20-6-64 by the A.D.P. conducting the prosecution with a prayer for taking into consideration the District Magistrate's order or sanction for prosecution under Section 25(1)(a) of the Arms Act as well as various other documents, referred to in this petition for the purpose of commitment. As would appear from the order-sheet of the committing court, the examination of the prosecution witnesses as well as examination of the accused under Section 342 of the Code of Criminal Procedure had already been concluded prior to the date on which the above petition was filed and on this particular date arguments of the parties were heard and in the order as passed on this date there is also a reference to the aforesaid petition filed by the A.D.P. and it was directed to be filed with the record. There cannot thus be any doubt that the attention of the committing magistrate was drawn to the fact that the sanction order had already been passed by the District magistrate some days before the commitment order was passed by him on 2-7-64. It was contended in this connection that although the sanction order had already been passed by the District Magistrate and it had been brought to the notice of the committing magistrate before be passed his com-mitment order, it was not open to the committing magistrate to frame any charge under Section 25(a) of the Arms Act as the prosecution of this appellant had already been initiated prior to the passing of the sanction order and some of the witnesses had also been examined before the order was passed. In this connection, reliance was placed on the decision of the Federal Court in the case of Basdeo Agarwalla v. Emperor. AIR 1945 FC 16. In this case, the accused was proceeded with for an offence under thp Drugs Control Order for which previous sanction was required in accordance with Clause 16 of the Order It was found that the sanction order which was passed on 23-5-44 was not filed before the magistrate concerned until 24-5-44 and prior to that date the prosecution had been set on motion from 2nd May, 1944 onwards and various steps had been taken by the Magistrate It was held, in view of these facts, that the prosecution had been clearly instituted without the previous sanction required under Clause 16 and as it was not possible to sever the proceedings prior to 24th May from those occurring on and after that date, and as, when the sanction was obtained, no new start was made, the whole proceedings were null and void. The position, however, is quite different in the present case for although several steps were taken and some witnesses were also examined in the committing court prior to the passing of the sanction order, the validity of those steps as well as the examination of the witnesses prior to the sanction order is not at all affected by absence of such an order, as the magistrate took these steps in connection with the offences under different sections of the Indian Penal Code, for which no previous sanction was required. There could evidently be no bar to the prosecution of the appellant for the offence under Section 25 (a) of the Arms Act. after the sanction order itself was passed. It is, no doubt, true that some of the witnesses had already been examined in the committing court in connection with the proceeding against them for the offences under different sections of the Indian Penal Code prior to the passing of the sanction order and those witnesses were not examined again in the committing court after the sanction order was passed. This, however, does not affect the position at all in view of the amendment of the provisions relating to commitment proceedings, as made by the Code of Criminal Procedure Amendment Act, 1955. As provided by Section 207A of the Act, as amended, it is open to the committing magistrate to pass an order for commitment after consideration of all the documents referred to in Section 173 of the Act including the statements of witnesses recorded by the police during the investigation and it is not necessary to get the documents formally proved. Hence, as the sanction order had actually been passed long before the passing of the commitment order and the attention of the committing magistrate had also been drawn to the same, it was quite open to the committing magistrate to pass an order for commitment of the appellant for the offence under Section 25(1)(a) of the Arms Act also by framing a proper charge in this very commitment proceeding after taking into consideration the documents and records referred to in Section 173 of the Code of Criminal Procedure including the sanction order itself and without examination of any witnesses on the point. In these circumstances, as the committing magistrate had failed to frame a charge under Section 25(a) of the Arms Act, although he could have lawfully framed such a charge in this very commitment proceeding, it was quite competent for the Additional Sessions Judge to rectify this omission by virtue of the powers vested in him under Section 226 of the Code of Criminal Procedure. On a consignation of all these aspects, it is held that the contention on behalf of appellant Dripal that his trial and conviction for the offence under Section 25(1)(a) of the Arms Act was without jurisdiction and illegal is held to be quite untenable.
18. In the result, the conviction of both the appellants under Section 224 of the Indian Penal Code and the sentences as imposed on them under this section are set aside. The conviction of appellant Dripal Gope under Section 25(1)(a) of the Arms Act and the sentence as imposed under this section by the court below are upheld. The conviction and sentence of appellant Ramanand singh under Section 302 of the Indian Penal Code are altered to a conviction under Section 304 Part I of the Indian Penal Code with a sentence of rigorous imprisonment for ten years.
19. The two appeals are dismissed subject, to the above modification.
Ramratna Singh, J.
20. I agree, But I would like to make some observations regarding the conviction and sentence under Section 25(1) (a) of the Arms Act. Section 39 of the Act lays down:--
''No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the district magistrate."
In the instant case, the sub-divisional magistrate did not take cognizance of the offence, as no sanction had been obtained up to the date, when he transferred the case to the committing magistrate in respect of the offences under the Penal Code for which no sanction was required. It is well settled--and this was not disputed--that want of sanction with regard to a particular offence is no bar to the cognizance in respect of other offences as also trial in respect of the same, disclosed on the same facts. It is also well settled that, ordinarily, judicial proceedings with reference to an offence involved therein can be initiated under Section 190 of the Criminal Procedure Code only. Hence, it was argued by counsel for the appellant that neither the committing magistrate nor the court of session could, in the instant case, take cognizance of the offence under Section 25(1)(a), even if the requisite sanction had been obtained at the commitment stage. This contention, however, ignores the legal position that Section 190 is not exhaustive of the courts which can take cognizance or of the materials on which cognizance can be taken. Section 190 is one out of a group of sections under the heading ''Conditions requisite for initiation of proceedings." The language of Section 190 is in marked contrast with that of other sections of the group e. g., sections 193 and 195 to 199, which regulate the competence of the court and bar its jurisdiction in certain cases except in compliance with the provisions thereof (see H. N. Rishbaud v. State of Delhi, AIR 1955 SC 196 at p. 204). Thus, Section 198 provides that a court of session can take cognizance of an offence as a court of original jurisdiction on a commitment made to it. Again, when after the initiation of judicial proceedings with reference to one offence or against one person, another offence appears to be involved in the criminal transaction in question or another person appears to be involved therein, the court then, by virtue of its being seized of the case relating to that transaction--not under Section 190 -- takes action by starting proceedings in respect of such offer offence or against such person (see Abdul Rahman v. King Emperor, AIR 1927 PC 44 at p. 46; N. Baksi v. M. Yunus, AIR 1949 Pat 47 at p. 56; and Manik Lal v. State of Bihar, AIR 3950 Pat 500 at p. 502). Hence, the committing magistrate was competent to take action, in the instant case, in respect of the offence under Section 25(1)(a) of the Arms Act.
21. Section 193(1) of the Code of Criminal Procedure lays down:
"Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of sessions shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf."
In other words, no court of session can take cognizance of an offence, unless the accused has been committed to it by a magistrate. This section has, however, to be read with Section 226 of the Code, which provides that, in case a person is committed for trial "without a charge, or with an imperfect or erroneous charge", the court of session, may frame a charge or add to or otherwise alter the charge" Illustration 2 to Section 226 shows that the court of session can add a charge to those framed by the committing magistrate; but such addition to the charges can be made only on the facts disclosed from the materials available before the magistrate during the commitment proceedings. In the instant case, all the facts on the basis of which the charge under Section 25(1)(a) of the Arms Act were framed were available at the commitment stage even in the documents referred to in Section 173, copies of which had been supplied to the accused under Section 207A of the Code; and it is well settled that, where no eye-witnesses of the crime are produced by the prosecution and the magistrate also does not consider it necessary in the interest of justice to examine other witnesses, a commitment can be made, in a proper case, merely on the basis of the police report and the documents referred to in Section 173. It will appear from Section 207A(4) that, except, in the case of eye-witnesses produced by the prosecution whom he is bound to examine, the committing magistrate has a discretion in the matter of examining other witnesses, i. e.. eye-witnesses not produced by the prosecution and witnesses relating to circumstantial evidence; but in exercising this discretion the magistrate must apply his mind to the facts and circumstances of the case and consider, if it is necessary in the interest of justice to take evidence of any witness not produced by the prosecution (see Kirpal Singh v. State of Uttar Pradesh, AIR 1965 SC 712; and Shri Ram Daya Ram v. State of Maharashtra. AIR 196! SC 674). In the instant case, the magistrate did examine some witnesses before the sanction order and he could not have framed a charge under Section 25(1)(a) of the Arms Act on the basis of the evidence of those witnesses. But after the receipt of the sanction order, he could have, on the basis of only the documents referred to in Section 173 framed a charge under Section 25(1)(a) of the Arms Act, even without examining any witness in respect of this charge.
22. Can it be then said that the committing magistrate did not deliberately frame such a charge for want of a sanction? As will appear from the facts stated hereinafter, the answer to this question must be in the negative. On 18-2-64 an order was passed by the magistrate that witnesses for the purpose of commitment enquiry would be examined from the 9th to the 11th March, 1964. On the application of the A.D. P., however, to adjourn the hearing awaiting sanction, the case was adjourned to the 1st April and then to the 8th April. A third application to the same effect was filed by A.D.P. on the 8th April, but it was opposed by counsel for the accused who submitted that sanction could be obtained even later and the magistrate rejected the application for the reason that further adjournment would cause harassment to the accused. One prosecution witness was therefore, examined on that date: some prosecution witnesses were examined on the 17th April; and other prosecution witnesses were examined on the 10th June and the 13th June; the accused were examined under Section 342 on the 19th June: arguments were heard on the 20th June; and commitment order was passed on the 2nd July. But on the 20th June before the commencement of the arguments, a petition was filed by A. D. P. with a prayer for taking into consideration the District Magistrate's order of sanction which had been passed on 10-5-64; and the magistrate merely directed this petition to be filed with the record. It is remarkable that in the heading portion of the commitment order Section 25(1)(a) of the Arms Act is mentioned with sections 148, 302 and 149 of the Penal Code and in the body of the order, though the prosecution case regarding sun shot injuries caused by the two appellants has been accepted, Section 25(1)(a) of the Arms Act has not been mentioned at all Sanction order had been passed and communicated before the examination of some prosecution witnesses on the 10th June and the 13th June and it was brought by the prosecutor to the notice of the magistrate on the 20th June before the hearing of arguments, with a prayer to take it into consideration. The prosecution did not apparently want to examine any witness, when the documents referred to in Section 173 of the Criminal Procedure Code were before him. Hence, there was no legal bar to the framing of a charge by the magistrate under Section 25 (1)(a) of the Arms Act. The magistrate was, therefore, competent to frame a charge under Section 25(1)(a) of the Act, while committing accused Dirpal to the court of session; and, inasmuch as he omitted to do so, the court of session was competent under Section 226 of the Code to add such a charge.
23. The distinction between the facts of the instant case and those of the cases in AIR 1934 All 963; AIR 1917 Bom 33 and AIR 1945 FC 16 have been pointed out by my learned brother. One more distinction is that in those cases prior sanction of some authority was required for prosecution of the accused concerned in respect of the offences alleged to have been committed by him whereas in the instant case prosecution in respect of some of the offences did not require such sanction. It will be further noticed that these cases were decided before 1955, when Section 207A did nut form part of the Criminal Procedure Code, and no commitment could be made without the examination of witnesses by the prosecution in support of the charge before the magistrate concerned. In the instant case however, commitment could be made, in view of Section 207A, on the basis of the material contained in the documents referred to in Section 173 of the Code, without examining any witnesses.