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Criminal Appeal No. 268 of 1964 decided on 9th March 1967.
Ss. 147 & 148‑‑Rioting Conficting claims put to title to land leading to free maramaro between parties‑Important question to be considered‑Which party was in possession‑Party in possession entitled to be acquitted of charge under Ss. 147 & 148‑Criminal Procedure Code (V of 1898), S. 145.
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---Interested witness‑Respectable witness sitting in Court during trial by side of defence lawyer No suggestion that he was instructing lawyer or taking unusual interest for party represented by him‑Mere sitting, held, no circumstance affecting his impartiality.
S. 145‑Courts concerned with question of possession only, and not of title Background of prosecution case cannot, however, altogether be lost sight of‑Oral evidence as to possession‑To be considered in context of case sought to be made out on basis of documentary evidence adduced.
Abdus Salam Khan for Appellants.
Birendra Nath Chowdhury for the State.
Dates of hearing : 6th and 7th March 1967.
‑17 accused including the 15 appellants were placed on their trial under various sections of the Pakistan Penal Code in the Court of the Additional Sessions Judge, Faridpur. Amongst them appellant Mufijuddin Matbar alias Mahijuddin has been convicted under sections 304, Part II and 148 of the Pakistan Penal Code and sentenced to rigorous imprisonment for 4 years and 1 year respectively with a direction that the sentences should run concurrently. Appellants Kalai Matbar, Felu Matbar and Mansur Matbar have been convicted under sections 324 and 148 of the Penal Code and sentenced to rigorous imprisonment for 2 years and 1 year each respectively, the sentences to run concurrently. Appellant Abdur Rehman has been convicted under section 148 of the Code and sentenced to rigorous imprisonment for 1 year. The remaining 10 appellants stand convicted under section 147 of the Code and sentenced to rigorous imprisonment for six months each.
The two other accused who were tried along with the appellants, namely Motaleb Matbar and Kalu Fakir were also convicted Motaleb under sections 148 and 324 and Kalu Fakir under section 147 of the Code. Motaleb, a boy of about 14/15 years, was ordered to be released on his entering into a bond with one surety to appear and receive sentence when called upon during the period of one year and to be of good behaviour under section 562 of the Criminal Procedure Code, and Kalu Fakir was sentenced to be detained in Court till the rising of the Court on account of his extreme old age. These two accused, it may be noted, have not preferred any appeal.
The case for the prosecution is that complainant Saijuddin Matbar and his co‑sharers went to weed in their jute land in plot No. 206 of mauza Khaiyerbahanga after their mid‑day meal on 9th Jaistha, 1370 B. S. corresponding to 19th May, 1963 with 12 hired labourers. At Ashar prayer time some of the accused armed with dhal, sorki, lathi and katra came from the East and one of them namely Alimuddin, cried out saying that they would take revenge for the institution of a case under section 188 of the Pakistan Penal Code against them by Saijuddin. At this they ran towards their house leaving the hired labourers in the field. Other accused came armed with deadly weapons from the West and at the order of Kalu Fakir, Alimuddin dealt a lathi blow on the knee of Derajuddin whereupon he fell down on the border of plot No. 206. Accused Mafijuddin then struck Derajuddin on the right chest with a katra and pressed it till he drew it back after a few moments. When Saijuddin advanced to the rescue of Derajuddin appellant Mataleb gave him a katra blow on his neck and also struck Abdul Kader with a katra on his left cheek. Felu stabbed Abdul Kadar on the chest with a sorki and Kalai Matbar dealt a katra blow to him at the root of his throat. Rahman struck Samad on his left thigh with a katra. Derajuddin died instantaneously on plot No. 177 bordering plot No. 206. He was taken home and then Saijuddin went to thana and lodged ejahor at 9‑30 p. m. Police after investigation submitted charge‑sheet against the accused under several sections of the Penal Code.
A preliminary inquiry under Chapter XVIII of the Criminal Procedure Code was held by Mr. M. A. Matin; Magistrate 1st Class, Madaripur, who committed the accused to the Court of Sessions to stand their trial there.
The defence plea was that accused Mafijuddin Matbar has been in possession of the disputed land as a care‑taker on behalf of the owners, Babu Sarat Chandra Das Gupta and Satish Chandra Das Gupta inasmuch as Sarat Babu died 11/12 years ago and Satesh Babu left this country 7/8 years ago. Satish Babu made over possession of the disputed plot to Mafijuddin to possess the same on condition of returning land to Satish Babu whenever he could come back to Pakistan the complainant party never possessed this land. Further case of the defence was that on the date of occurrence the complainant party attacked the accused party being armed with dangerous weapons when the latter were engaged in weeding their jute in the land after taking their mid‑day meal and consequently there was a mutual fight between the parties in course of which men of both sides sustained injuries including Mafijuddin who fell down on the ground. Derajuddin was going to give a katra blow to Mafijuddin and at that time Mafijuddin's son Mansur hurled a katra on Derajuddin to save his father's life and having received this katra blow Derajuddin fell down on the ground and died.
The learned trial Judge rightly observed that if the accused party was found to be in possession of the disputed land, then the whole prosecution, so far as the charge under section 148, P. P. C. was concerned would fall to the ground and the accused would be entitled to be acquitted of that charge. The most important question for our consideration with regard to the convictions under sections 148 and 147 of the Penal Code is whether the complainant Saijuddin was in possession of the disputed land, namely plot No. 206 of Mouza Khairbahanga or whether this land was in possession of the accused party on the date of occurrence.
It is an admitted fact that plot No. 206 was the homestead of two brothers Babu Sarat Chandra Das Gupta and Satish Chandra Das Gupta and that while Sarat Babu who was a renowned pleader of Faridpur used to live in Faridpur Town Satish Babu used to reside in that homestead.
P. W. I Saijuddin Matbar, the complainant, has deposed that be took settlement of moiety share of this land along with Kitabuddin and Abdul Kader from Satesh Babu and Sarat Babu on the basis of an amalnama in the year 1353 B. S. on payment of Rs. 400 as premium. Kitabuddin, his wife Chhotobibi and his brother Farman took settlement of the remaining 8 annas share from the admitted owners. After taking settlement of the entire plot, the homestead was converted into agricultural land by cutting trees and removing their stumps. They grew jute and Rabi crops there. It is in evidence that the contiguous western land is plot No. 177 known as Akhoyer Bbita and this was also possessed by them.
Prosecution produced an amalnama and a receipt showing payment of premium for the settlement of plot No. 206 from, Sarat Babu and Satish Babu. Evidence was sought to be adduced to the effect that these documents were written by Sarat Babu but this fact has been belied by the evidence of D. W. 1 Rai Bahadur B. L. Bhadra, a respectable and very senior pleader of the Faridpur Bar, whose evidence is that Sarat Babu did not write this amalnama and the receipt. Similar evidence has been adduced by D. W. 2 Hemendra Chandra Das Gupta, a cousin of Sarat Babu: There is no reason whatsoever why the evidence, particularly of Rai Bahadur Bhadra, should not be accepted. In fact, the finding of the Court below that the amalnama and the receipt were not written by Sarat Babu has not been challenged before us by the learned Advocate repre senting the State. It follows from this that these are not genuine documents but have been created for the purposes of this case.
We propose to consider oral evidence with regard to possession of the disputed plot of land against the above back ground. P. Ws. 1, 2, 3 and 6 have spoken to Saijuddin's possession of this land. P. W. 1 has stated that he grew Bagi jute in the disputed plot and the winter crop was masuri. He has further stated that he also grew jute in Baisakh, 1369 B. S. P. W. 2 Abdul Kader Matbar has deposed that Derajuddin and Saijuddin cut trees standing on this land previously. It has been elicited from him by the defence that he was not present when the jute was grown and that in winter the land was vacant. According to P. W. 3 Abdus Samad Matbar, Derajuddin and Saijuddin removed the trees and trunks from the disputed plot. He has, however, stated in cross‑examination that he does not know who had grown the jute. The evidence of the P. W. 6 Islam Howladar who was tendered by the prosecution and cross -examined by the defence is that Saijuddin, Kitabali and others possessed the disputed plot.
P. W. 2 is nephew of P. W. 1 and as such he is not a disinterested witness. P. W. 6 Islam Howladar is brother of P. W. 7 Kalai Howladar. P. W. 1 has himself admitted in cross examination that Kalai Howladar is his distant Mama (maternal uncle). It follows from this that P. W. 6 is also his relation and as such P. W. 6 is also not an independent and disinterested witness. The only other witness of possession who remains to be considered is P. W. 3 Abdus Samad Matbar. He did not speak a word with regard to the possession of this land in his examination‑in‑chief, but in his cross‑examination he made the statement that Derajuddin and Saijuddin removed the trees and trunks there from. As already mentioned, he could not say who had grown the jute.
Against such evidence of possession on the side of the prosecution there is evidence of D. W. 2 Hemendra Chandra Das Gupta, D. W. 3 Abdul Kader Matbar and D. W. Saijuddin Sarkar that the disputed land has been in possession of accused Mafijuddin and it was Mafijuddin who grew the jute in 13 10 B. S. D. W. 4 is a relation of Mafijuddin as admitted by him in cross‑examination, but D. Ws. 2 and 3 are independent and disinterested witnesses. D. W. 2 being a cousin of Sarat Babu and Satish Babu is expected to have knowledge about the possession of plot No. 206. According to him they sold this land together with huts thereon and made over possession of the same to accused Mafijuddin on condition that he would return the same if and when Satish Babu returned to this country. This witness has specifically stated that Mafijuddin cut the trees and removed their trunks and converted the homestead into agricultural land. Evidence shows that this witness is a Thana Agricultural Officer and was in service for 20 years at the time of his deposition. This is no ground for disbelieving his testimony with regard to possession of the land, particularly having regard to the fact that he has affirmed that he looks after his land at home where his family resides, considering that his family resides at home it is only natural and probable that he comes home at times and looks after his family and cultivation of his lands. This is more probable because he is an officer of the Agricultural Department. D. W. 3 is Chairman of Mustafpur Union Council to which office he was elected uncontested. He has testified that Satish Babu left this country 7/8 years ago and appellants Mafijuddin and Kalai possessed the disputed land since Satish Babu left this country. They cut the trees and removed the trunks and they possessed it by growing jute. The house of this Chairman of Union Council is only about quarter of a mile from the disputed land and he is expected to know as to who possessed this land. The only circumstance pointed out against him is that he was sitting in Court during the trial by the side of the defence lawyer and that accused Kalai is a member of the Union Council. This witness candidly admitted that he was sitting in Court during the trial by the side of the defence lawyer. That is nothing wrong. It was not the suggestion of the defence that he was instructing the defence lawyer or taking any unusual interest for the defence. As a respectable person holding a responsible position it was quite natural that he would sit somewhere and the mere fact that he sat beside the defence lawyer gives no indication of the fact that he was interested in the defence. As he came to depose for the defence, he could not be expected to sit with the prosecution side. This, in our opinion, is no circumstance affecting his impartiality in the least. The fact that accused Kalai is a member of the Union Council was stated by D. W. 3 in his examination‑in‑chief. He did not suppress any fact within his knowledge. Simply because one of the accused happens to be a member of the Union Council of which he is the Chairman it cannot be contended that he is interested in the defence. It is significant to note that no such suggestion was made by the prosecution in his cross‑examination. We are inclined to give weight to the evidence of this impartial and respectable witness.
Although in a criminal case we are concerned with the question of possession only, and not of title, the back‑ground of the prosecution case cannot be altogether lost sight of. Wee have already held that the complainant created documents in order to support its case and it is on the basis of such documents that possession has been claimed. In fact, evidence has been led to the effect that complainant Saijuddin has been possessing this land on the basis of the alleged pattan. It is to be borne in mind that ordinarily possession follows title although there may be cases where man comes into possession of a property without valid title. Oral evidence with regard to possession cannot but be considered in the context of the case sought to be made out by the prosecution on the basis of the pattan evidenced by the amalnama and the receipt which have finally turned out to be forged documents.
Even if only the oral evidence of both sides is carefully compared and scrutinised, we find it difficult to accept the prosecution story that plot No. 206 of mouza Khairbahanga has been in possession of the complainant. There is no disinterested witness to support this story of possession with the solitary exception of P. W. 3 and even this P. W. 3 Abdus Samad Matbar was unable to say who had grown the disputed jute. On the other hand, there is unimpeachable evidence of D. Ws. 2 and 3 that appellant Mafijuddin has been in possession of this land that it is he who bad grown the jute. We have, therefore, no hesitation in coming to the conclusion that accused Mafijuddin was in possession of the disputed land on the date of the occurrence. It follows from these findings that the convictions of appellants under sections 148 and 147 of the Pakistan Penal Code are not maintainable and should be set aside.
So far as the conviction of appellants 2 to 4, namely Kalai Matbar, Felu Matbar, and Mansur Matbar under section 324 of the Penal Code is concerned. It has transpired that there was a free fight between both sides and that both the parties were well‑armed. The evidence of P. W. 3 that fierce fighting was going on when he reached the place of occurrence may be referred to. He has further stated that the accused also had Konaches (spears) in their hands. There is also other evidence as regards the mutual fight between the parties but it is needless to point out such evidence in details inasmuch as this fact is not challenged by either side. Since possession of the land was with the accused party, they would be entitled to maintain their possession by driving out the complainant party who were trespassers and in doing so, if these struck blows to the a complainant or his witnesses causing injuries not culminating in the death of any person, they cannot be said to have committed an offence. In this view of the matter, we hold that the conviction under section 324 of the Pakistan Penal Code as well is not maintainable and is liable to be set aside.
We are now left with the conviction of appellant Mafijuddin Mather under section 304, Part II of the Penal Code for causing th4 death of Derajuddin knowing that his act of assaulting him was likely to cause his death. The fact that Derajuddin was struck with a katra by appellant Maijuddin has been testified to by P. Ws. 1, 2, 3, 4, 8 and 9. Their evidence is to the effect that Alimuddin first struck a lathi blow on the knee of Derajuddin whereupon the latter fell down and then Mafijuddin struck him with katra on the right chest and pressed it till he drew it a few moments after. The fact that Derajuddin received a fatal blow during the occurrence has not been challenged by the defence. The medical evidence shows that his death was due to haemorrhage and shock as a result of an injury which was ante‑mortem and homicidal in nature and which was caused by a sharp and pointed weapon such as katra. This opinion has been given by P. W. 11 Dr. Anwarul Haque Assistant Surgeon of Madaripur Hospital who conducted post‑mortem examination on the dead body of Derajuddin on 20‑5‑63 at 12‑30 p.m. and who found the following injuries on the dead body.
"Ono punctured wound 3" x " x 5 " situated on the right exiteory border from near axiliary fold, passing underneath skin and the pectoral muscle, slight oblique cut and pierced the 3rd and 4th ribs near the right border of the right externum bone transversed behind the sternum bone pierced the pluera, pericardium and punctured the right heart through which the index finger passed freely the pericardial back and the right plural cavity was full of dark fluid blood. The injury contained clotted blood also. No other mark of injury was found."
The defence case with regard to the causing of death of Derajuddin has been put through the mouth of D. W. 4 Sajiuddin Sarkar. His evidence is that complainant party attacked the accused party who were weeding jute in the disputed plot after taking their mid‑day meal on the date of occurrence, and that both parties were armed with weapons and there was maraneari between the parties. When Derajuddin was going to give a kolra blow on Mafijuddin whom he found in lying condition, Mansur hurled a katra on Derajuddin whereupon Derajuddin fell down and died. This solitary witness who came to support the defence case regarding the causing of death of Derajuddin is, as already pointed out, a relation of Mafijuddin. We are not inclined to place reliance on his testimony in this respect.
On an assessment of the evidence of both sides on this point, we are convinced that appellant Mafijuddin Matbar caused the death of Derajuddin by striking him with a katra knowing that his act was likely to cause death of the victim. He has been rightly convicted under section 304, Part II of the Penal Code.
We are constrained to observe that the learned Additional Sessions Judge Mr. C. F. Karim did not properly put questions to the Assessors to obtain their opinions in this case. He only obtained the opinions of the Assessors regarding the charges under sections 302, 302/ 109 and 148, P. P. C. The Assessors unanimously held Mafijuddin Matbar not guilty under section 302 and 9 others not guilty under section 148 of the Pakistan Penal Code; but disagreeing with such opinions he convicted Mafijuddin under section 304, Part. II, P. P. C. and the other mentioned above under section 147, P. P. C. though he did not ask the Assessors. After they had returned their opinion of not guilty under the major sections referred to above whether they were guilty under section 304 or 147, P. P. C. as the case might be.
A duty is cast on the Sessions Court to ask opinion of the Assessors about lesser offences when the Assessors have major offences they have been charged with. The opinion of the Assessors is entitled to due consideration and this postulates that their opinion with regard to minor offences should be elicited when according to them the accused are not guilty of the major offences with which they are charged. The omission to elicit such opinion does not vitiate the judgment or invalidate the conviction, but, nevertheless, it is important to remember that such opinion should always be obtained as it carries considerable weight and helps the Court to arrive at correct conclusions.
In view of the findings recorded above, the appeal of all the appellants with' the exception of Mafijuddin Matbar is allowed and their convictions and sentences under the respective sections of the Penal Code are set aside, and they are directed to be discharged forthwith from their bail bonds. The appeal of Mafijuddin is dismissed but his sentence is reduced to the terms of imprisonment already undergone, considering that he has already suffered imprisonment for nearly three years.
‑I agree.
Appeal partly dismissed.
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