Judgement

BHAGWATI J. - The appellants Nos. 2 and 3, who are the surviving appellants after the death of appellant No.1 during the pendency of this appeal were charged with having committed offences under Ss. 435 & 436, Penal Code, and were tried by the second Assistant Sessions Judge of Saran, Chapra, with the aid of a jury. The jury returned a majority verdict that both of them were guilty of the offence under those sections. The Assistant Sessions Judge disagreed with the said verdict and made Court a reference to the High Court of Judicature at Patna under S. 307, Criminal P.C. The said reference was heard by a Division Bench of that High Court. The learned Judges of the High Court overruled the contentions which were urged before them in regard to the charge to the jury being defective and further hold that the reference was, in the circumstances, not competent. They, however, without anything more accepted the majority verdict and held the appellant guilty of the offences under Ss. 435 & 436, Penal Code, and sentenced them to six months rigorous imprisonment each. The appellants obtained from this court special leave to appeal under Art. 136 of the Constitution and hence this appeal.

2. The facts leading up to this appeal may be shortly stated as follows - There was a dispute between the parties as to title to plot No. 1100 of village Rampur, Tengrahi. One Kailash Rai claimed to be the owner of that plot and also claimed to be in possession of a Palani standing in a portion of that plot as also of a Punjaul, i.e., a haystack in its vicinity. There had been proceedings under S. 144, Criminal P.C in regard to this area loading up to a title suit being T.S. No. 58/8 of 1948/50 filed by Kailash Rai against the appellants in regard to the same. A decree had been passed on 16th December 1950, in that title suit dismissing the claim of Kailash Rai. An appeal had been filed by Kailash Rai against that decree and that appeal was pending at the date of occurrence. On 4th March 1951, Kailash Rai was sitting in the Palani and at about 3 to 4 p.m. a mob consisting of about 100 to 125 persons including the appellants all armed with lathis, bhallas and pharsas came to the Palani and began to demolish the same. Kailash Rai remonstrated and the deceased appellant No. 1 ordered that the Palani should be set on fire. The appellant No. 2 thereupon set fire to the Palani with a match stick and the appllent No. 3 set fire to the Panjaul. The First Information Report of this occurrence was lodged at Gopalganj Police Station at 8 p.m. the same night. The Officer-In-Charge of Gopalganj Police Station investigated the case and challaned the appellants charging them with having committed offences under Ss. 435 and 436, Penal Code.

3. The Committing Court found a prime facie case made out against the appellants and sent them up for trial by the Assistant Sessions Judge, Second Court Chapra, who tried them by a jury. One jury returned a majority verdict of guilty against the appellants. The Assistant Sessions Judge, however, disagreed with that verdict and made a reference to the High Court stating in the letter of reference that off the evidence recorded before him the appellants had been in possession of the Palani and the Panjaul but were disposed of the same some time prior to the passing of the decree in the title suit on 16th December 1950, and were therefore justified in taking steps for recovery of the possession thereof from Kailash Rai on 4th March 1951, and if in that process the appellants set fire to the Palani and the Panjaul they were only destroying their own property and were not guilty of the offence of committing mischief by fire as alleged by the prosecution. The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they did and though he agreed with the alleged findings of fact reached by the jury in regard to the possession of the Palani and the Panjaul, disagreed with th