Aftab Alam, J.@mdashThere are seven appellants in this appeal. They were all convicted by the trial Court u/s 307 read with Section 34 to the Penal Code. Appellate No. 2, in addition to this, was also convicted u/s 27 of the Arms Act. All the appellants were sentenced to undergo rigorous imprisonment for three years u/s 307/34 of the Penal Code. Appellant No. 2 was additionally sentenced to undergo rigorous imprisonment for 18 months for the offence under the Arms Act. His two sentences were directed to run concurrently.
2. It may be noted here that before the trial Court there was one more accused namely Rashid Mian. At the commencement of the trial, he was charged with u/s 307 of the Penal Code and Section 27 of the Arms Act. He, however, died before the conclusion of the trial.
3. The prosecution case was instituted on the basis of the fardbeyan (Ext. 2) of Allauddin (PW 7) which was recorded at Bhabua P.S. by a Sub-Inspector posted there on 1.11.1978 at 3.15 p.m. A formal FIR (Ext. 1) was later drawn up on the same day at 6.30 p.m. incorporating the farbdeyan and giving rise to Mohania P.S. case No. 1(11)78. According to the informant''s fardbeyan, on that day 1.11.1978 he along with his brother-in-law Naimuddin, proceeded for Mohania from his in-laws home at village Bhitti. The informant was going to his home while his brother-in-law was to buy some cloths at Mohania. When they reached a little distance towards the south of the village they saw a large number of persons harvesting paddy from a piece of land belonging to his brother-in-law. They then proceeded towards the land and saw that appellants 1 to 6 along with Rashid Mian (since deceased) and a large number of persons were harvesting the paddy. It was about 8 O''clock in the morning at that time. Rashid Mian was carrying a gun while appellant No. 2 had a country made pistol. The others were armed with Lathi, Bhalla,, Garasa, etc. When they were at a distance of about 1 bigha from the land the informant''s brother-in-law protested and asked the accused why were they indulging in such an act. At this Rashid Mian started indiscriminate firing from his gun. The shots fired by him caused injuries on the informant''s chest, head and left leg and he fell down. His brother-in-law Naimuddin also received gun shot injuries on his right knee and he also fell down. Thereupon appellants 8 and 3, from among the accused, came there and took out Rs. 150/- from the informant''s pocket and also took out the money from the pocket of his brother-in-law. On Hulla being raised a large number of persons assembled including Insan Mian, Ram Dahin Singh and Mohan Singh. They carried the informant and his brother-in-law to the road from where Kalamuddin, another brother-in-law of the informant, brought them to the Bhabua Hospital. There the Doctor advised them to go to Banaras so that their X-ray may be taken. From the hospital Kalamuddin brought them to the Bhabua P.S. where the informant gave his statement.
4. After investigation the police submitted charge-sheet against all the appellants and the deceased Rashid Mian and on that basis they were put up for trial.
5. As noted about Rashid Mian (deceased) was charged u/s 307 of the Penal Code and Section 27 of the Arms Act. As regards the seven appellants charges were framed against each of them as follows ?
First.--That you, on or about the 1st day of November, 1978 at village Bhitti, P.S. Mohania District Rohtas were members of an unlawful assembly in prosecution of the common object of which, viz., in attempting to commit murder, one of the members namely Rashid Mian, caused injuries to Alimuddin Mian (sic) and Naimuddin Mian as a result of gun shot fire and you are thereby u/s 149, IPC guilty of causing the said offence and thereby committed an offence punishable u/s 307/149 of the Indian Penal Code.
Secondly.--That you, on or about the same day arid at the same place committed the theft of paddy crops by taking the same out of the possession of the informant Allauddin''s brother-in-law Naimuddin from his Plot No. 1171 appertaining to Khata No. 99 of the same village and thereby committed an offence punishable u/s 379 of the Indian Penal Code.
6. Appellant No. 2 along with Rashid Mian (deceased) was further charged u/s 27 of the Arms Act as follows:- ''
First.--That you, on or about the 1st day of November 1978 at village Bhitti, P.S. Mohania, Distt. Rohtas were in possession of fire-arm namely gun and pistol respectively for unlawful purpose and thereby committed an offence punishable u/s 27 of the Arms Act.
7. In support of its case the prosecution examined eight witnesses. The appellants, in their defence, also examined seven witnesses.
8. The defence case was that disputed land was sold by Hasnain Ansari, who was admittedly a brother of Naimuddin P.W. 4 and Kamaluddin in favour of the wife of accused Rashid Mian on 20.5.1978. In support of their plea the defence brought on record the registered sale-deed (Ext. A) and a registered deed of rectification executed by Hasnain Ansari on 9.9.1978 (Ext. B). It was the case of the defence that as a consequence of the sale executed by Hasnain Ansari, the disputed land, at the material time, was in their possession and the'' paddy crop being harvested on the date of occurrence was grown by them. It was further their case that at the time of harvesting the members of the prosecution party came there variously armed and tried to forcibly prevent the appellants from harvesting the crop grown by them. As noted the defences examined witnesses and produced documents in support of its case.
9. On an appraisal of the evidence led by the parties the trial Court came to the finding that the prosecution had failed to establish that they were in possession over the land and that the paddy crop being harvested by the appellants was grown by them. The charge u/s 379 of the Penal Code, therefore, failed and the trial Court held that the appellants were not guilty of the charge u/s 379 of the Penal Code and acquitted them of that charge.
10. As regards the offence of attempted murder the learned trial Court took the view that the accused had taken the pleas of the right of private defence and therefore, infliction of injuries on the informant Allauddin Mian and Naimuddin Mian, PW 4 was admitted by them. It went on to hold that the accused had no justification for the use of fire-arm, causing injuries on the persons of PWs 4 and 5 and accordingly held them guilty of the offence u/s 307/34(and not u/s 307/149 according to the charge) of the Penal Code.
11. From the judgment of the trial Court, it appears that it was the defence Counsel who in course of arguments invoked the plea of private defence and the appellants'' conviction u/s 307/34 is thus founded on the arguments advanced by their Counsel. There is no other material on the record to suggest that such a plea was taken by the appellants. In my view, it is quite unfair to convict and sentence the appellants on the basis of the arguments advanced by their Counsel, in complete disregard of the materials on record.
12. When one turns to the materials on the record of this case, specially the statement of the accused recorded u/s 313 of the Cr. P.C. One cannot fail to observe that the mandatory requirement of Section 313 of the Cr. P.C. was hardly complied with in this case and hence, the entire evidence so far as the charge u/s 307/149 or 307/34 is concerned must be excluded from consideration.
13. The statement of appellant No. 1 was recorded u/s 313, Cr PC in the following manner:
Q. Witnesses have said that on 1.11.1978 at village Bhitti you committed theft of Allauddin''s paddy by harvesting it and you committed the offence of rioting; what have you to say ?
Ans. No, Sir.
Q. You wish to say anything ?
Ans. The paddy in Plot Nos. 1171 and 1174 was sown by me. The members of the prosecutor party had harvested our paddy. Allauddin, Naimuddin and Kalamuddin were carrying guns. Insan had a Ballam in his hands. I had remonstrated with them, I was surrounded (by them), I fell down, they were all making indiscriminate firing from their guns. 1 do not know who received injuries, Ram Karan reached there. Getting an opportunity I fled away. There were 20-25 accused but I could identify only four among them.
14. The examination of Appellant No. 2 u/s 313, Cr PC went as follows:
Q. It is said that on 1.11.1978 at village Bhitti you committed theft of Allauddin''s paddy, committed the offence of rioting and you were carrying pistol, what have you got to say ?
Ans. No, Sir.
Q. Do you wish to say anything ?
Ans. The land was purchased in my mother''s name, I have been falsely implicated due to enmity for that reason.
15. As regards the other appellants, only two questions were put to them which were as follows:
Q. It is said that on 1.11.1978, at village Bhitti you committed theft of Allauddin''s paddy and committed the offence of rioting what you have got to say ?
Q. Do you wish to say anything ? All the appellants gave answers in the negative.
16. It is thus to be seen that in the examination of the appellants u/s 313, Cr PC not a whisper was made regarding any evidence concerning their shared intention or common object to commit the murder of Allauddin or Naimuddin.
17. The importance of examination of the accused u/s 313, Cr PC cannot be over emphasized. In
"Apart from the aforesaid comments, there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., Circumstances Nos. 4 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement u/s 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of
"The fact that the appellant was said to be absconding not having been put to him u/s 342, Criminal Procedure Code, could not be used against him.
18. It must, therefore, be held that the entire evidence against the appellants relating to the charge u/s 307/149 must be completely excluded. As a consequence there would be no evidence to maintain the appellants conviction u/s 307/149 or 307/34. All the appellants must, therefore, be acquitted of the charge u/s 307/149 or 307/34.
19. As regards the charge of Section 27 of the Arms Act, I find that there was no sanction for prosecution under the Arms Act and therefore, that charge must also fail.
20. In the light of the discussions made above, 1 find and hold that the charges against the appellants cannot be said to have been legally established and they are accordingly acquitted of the charges. The trial Court''s judgment is accordingly set aside.
21. In the result, this appeal is allowed and the appellants are discharged from the liability of their bail bonds.
