JUDGMENT
Mullck, J.
1. The appellant has been convicted by the Sessions Judge of Champaran in a trial with the aid of two Assessors of an offence under Section 330 of the Indian Penal Code and sentenced to simple imprisonment for one month and a fine of Rs. 50, in default rigorous imprisonment for fifteen days.
2. The story told for the prosecution is that on or about the 7th of December 1917 the appellant Satya Deva Swami was lodging in a garden house in the town of Motihari belonging to one Debi Prasad of that town. The appellant appears to be a gentleman who has had an education in America and who now spends his time in this country in religious pursuits and goes about from district to district preaching and lecturing. It appears that he had come to the District of Motihari for this purpose and that while he was lodging in the garden house above mentioned, some of his property was stolen, including, as he now says, a valuable manuscript in Hindi. Information was given to the Police of the theft, but without any result. It is admitted that suspicion fell upon the complainant Mahabir Mali, who is in the service of Debi Prasad and looks after the garden on his behalf. It is also admitted that in consequence of the information given by the appellant the house of Mahabir was searched by the Police and it is established by evidence that one Mangal, a disciple of the appellant, went to the house of Mahabir’s father for the purpose of inducing him to return the appellant’s property. On the 30th of December the appellant returned from a lecturing tour and the case for the prosecution is that he sent one Basudeo Narayan Munshi, who also lodges in the garden, to fetch Mahabir to the house which is known as the “cottage;” that Mahabir came and that the appellant called upon him to give up the stolen articles; that Mahabir repeated that he was innocent and that thereupon the appellant struck Mahabir on the buttock with a stick causing a swelling. The prosecutor then goes on to say that his cries attracted Constable Faiz Khan to the spot as also a crowd of some 20 or 25 people, and that under the appellant’s orders his disciple Mangal, one Baidyanath the son of a local Pleader, Ranjiwan the sais of Baidyanath and Basudeo Narayan proceeded to take him (complainant) to the house of Gorak Prasad for the purpose of looking him up there for the night. It is further alleged that the constable accompanied the party but that when they were passing the house of Sub-Inspector Qurban Ali, the constable raised an alarm; that thereupon all those who were holding the complainant ran away and that the complainant was then able to relate his story to the Sub-Inspector. It is said that this took place at 7 p.m. and that the Sub-Inspector after learning the complainant’s story sent him in charge of three constables to the house of Mr. Marsham the Superintendent of Police and himself followed shortly afterwards; and that at 9 P.M. the first information of Mahabir Prasad was recorded in the presence of Mr. Marsham. On the 31st of December the Police arrested Satya Deva Swami, Basudeo Narayan, Mangal, Baidyanath and Ramjiwan. Basudeo made a statement before Mr. Ritchie, Deputy Magistrate, pending the investigation, but the other accused refused to make any statements. Eventually all the five persons were placed on their trial before the Court of Session on charges under Sections 330 and 348 of the Indian Penal Code. The Assessors were both of opinion that there was no evidence against., any of the accused. The learned Sessions Judge, however, while disbelieving the greater part of the story for the prosecution and being of opinion that the case so far as it related to Baidyanath and his sais and Basudeo and Mahgal was false, convicted the appellant under Section 330 Indian Penal Code, holding that he had assaulted the prosecutor with a lathi for the purpose of either extorting a confession or constraining him to restore or cause the restoration of the stolen property. It is against this conviction that the appellant comes here in appeal.
3. It is to be mentioned that while some of the accused in the Sessions Court were defended by competent Counsel, the appellant declined either to cross-examine the witnesses or to address the Court. He did not, either in the Committing Magistrate’s Court or before Mr. Ritchie, make any statement with a view to explain the circumstances against him. In the Sessions Court, however, he filed a written statement setting out his account of what took place on the 30th of December, He states that he did call the prosecutor to the cottage and that he demanded from him his property, in particular the manuscript which he valued most. He admits that he struck the complainant one blow with a lathi but his excuse is that the prosecutor became abusive. He then says that the prosecutor, seeing that a Police constable was standing by, took the aggressive and attempted to strike him with a danta (or stick); that he in self-defence wrenched this danta from the hands of the prosecutor and thereafter suggested to those who had come to the spot that the prosecutor should, in order that he might do no harm to him, be taken to the house of his master, Debi Prasad, and kept there for the night and that for this purpose Mangal and others started from the garden for Debi Prasad’s house taking with them the prosecutor. As to what took place afterwards there is no affirmative evidence on the side of the defence because no witnesses have been called. We have in the statements of those accused who were charged with the offence under Section 348, Indian Penal Code, an account of the part which the Constable Faiz Khan played in the matter. If these statements are to be believed, the constable was a consenting party to the taking of the prosecutor to Debi Prasad’s house; and it was only upon reaching the house of the Sub-Inspector Kurban Ali that the thought struck him that it was a good opportunity of securing the arrest of so many undesirable persons. However, with what took place after the prosecutor left the gates of the garden we are not much concerned, because the persons who are said to have confined him on the way for the purposes of obtaining a confession or causing restoration of stolen property have been acquitted by the Sessions Judge. The question before us now is whether or not there was an assault in the cottage under circumstances which would bring the appellant within the purview of Section 330 of the Indian Penal Code. Now, the two eye-witnesses called by the prosecution on this point, namely, a ploughman named Dhaju Dusadh who worked under the prosecutor, and Baldeo Kurmi who is a cousin of the prosecutor, have been disbelieved by the Court below. So that we have only the word of the complainant as against the word of the accused; and the question is whether upon the testimony of the prosecutor alone coupled with the admissions of the accused above referred to a case under Section 330 of the Indian Penal Code has been made out. In my opinion it has not.
4. The learned Sessions Judge seems to consider that every master who slaps his servant because the servant has stolen some article of trifling value, is liable to have himself committed to the Court of Session on a charge of assault under Section 330, Indian Penal Code, In my opinion he is wrong. Section 330 contemplates that there must be immediate connection between the assault and the restoration of the property; that is to say, the intention of the person causing the assault must be proved to be to obtain, from the person assaulted confession or the restoration of stolen property; and there must be no reasonable ground for explaining the assault otherwise than upon that foundation. If in the present case the appellant is able to show, or if it can be fairly inferred from the facts, that the object of the assault was not to obtain restoration of stolen property, but that the assault was committed in a temporary fit of anger quite independent of any intention to extract a confession or cause restoration of stolen property, obviously the assault would not come under Section 330, Indian Penal Code, but would come under the definition of simple hurt under Section 32 Indian Penal Code.
5. Now what are the facts in this case? As I have said, the complainant has been disbelieved with regard to what took place outside the garden. Have we any guarantee, therefore, of his truthfulness as to the occurrence inside, the garden? Or is there any reason why the version of the accused should not be preferred to that of the complainant? I for my part fail to see why when there are no reliable witnesses, we should be compelled to accept the story of the complainant who has been disbelieved with regard to the greater part of his story. Then as to the constable. He states that he did not see any stick but that what he did see on his arrival at the garden was that the prosecutor was lying on the floor and making a noise, while the appellant was striking him with his fist and was kicking him. He admits that he knew that Baidyanath was a person whom he was required to watch, inasmuch as the father of Baidyanath was an adherent of Mr. Gandhi in connection with whose visit to the Champaran District he was even at that moment on special duty. He tells us that although he saw these two persons and Mangal and Basudeo wrongfully restraining the prosecutor he took no steps to prevent them from doing so. His explanation is that he did not say anything at first, because he thought that when they had actually confined the complainant in Baidyanath’s house he would have a better case against them. He modifies this statement, by saying that on reaching Kurban Ali’s house he changed his mind, as it struck him that that was a good opportunity of calling the Sub-Inspector out and getting the offenders caught red handed. To my mind both these explanations are false. I think the constable was a consenting party at the outset to the taking of the prosecutor to the house of Debi Prasad; that he saw nothing wrong in it; and that on reaching Kurban Ali’s house he asked the others to go away and took the complainant into Kurban Ali’s house merely for the purpose of informing the Sub-Inspector of what he was doing. The idea of instituting a prosecution under Section 330, Indian Penal Code, seems to have then entered the brain of the Sub-Inspector, as the appellant had made himself obnoxious to the authorities for various reasons into which it is not necessary to enter. It seems clear that if the appellant had not otherwise incurred the displeasure of the authorities, no one would have ever thought of committing him to the Sessions on the present charge The appellant arrived at the Police Station shortly after the complainant had been despatched to the house of the Superintendent of Police and he told the Sub Inspector that he was afraid that the prosecutor would do him some injury and requested that either the prosecutor should be delivered into the appellant’s custody or arrangements made by the Police for keeping him in custody for the night. This conduct is consistent with the case put forward by the defence, and in my opinion the appellant did not act with the intention alleged by the prosecution. The fact appears to be that he lost his temper at the somewhat aggressive attitude adopted by the prosecutor and struck him in anger.
6. In my opinion the proceedings against the appellant have from the outset been misconceived. The injury according to the Civil Surgeon’s deposition was very slight and the conviction in this case ought to have been one under Section 323 Indian Penal Code. The conviction and sentence passed upon the appellant Satya Deva Swami are accordingly set aside and in lieu therefor he is convicted under Section 323, Indian Penal Code, and sentenced to pay a fine of Rs. 25 or in default to undergo simple imprisonment for seven days.
Thornhill, J.
7. I agree.
