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Criminal Appeal No. 232 of 1965, decided on 20th March 1969.
‑A read with S. 96‑Private defence, right of‑Free fight between both parties over right of pas sage through land‑Preponderance of evidence in favour of accused's possession of disputed land‑One person on complainant's side killed and several on both sides receiving injuries‑Held, possibility of accused acting in assertion of their right of self defence of person and property on reasonable apprehension of death or grievous hurt not unlikely‑No offence established in circumstances.
Syed Ali Beparl v. Nibaran Molla and others P L D 1962 'S C 502 ; Jamshed Ali's case 5 D L R 369 and Ram Rup's case A I R 1939 Oudh 38 distinguished.
Safdar Ali v. Crown P L D 1953 F C 93 and Woolmington's case L R 1935 A C 462 rel.
P. C. Bose and Haradhan Sarkar for Appellants.
A. W. Mallick for the State.
Date of hearing : 2nd January 1969.
.‑There are 10 appellants before us in this appeal who together with five others were tried by the Additional Sessions Judge of Sylhet with the aid of four assessors. The offences are alleged to have been committed in course of an :incident that took place at about 2 p.m. on the 9th of February 1964, at Goneshwarpur Bharang within P. S. Jagannathpur District Sylhet. Appellant Tota Mia was convicted under section 304, Part I, of the Pakistan Penal Code and sentenced to rigorous imprisonment for seven years appellant Rajab Ali was .convicted under section 326 and sentenced to 5 years' rigorous .imprisonment; appellants Abdus Samad, Sunnu Mia, Ayez Alias Ayaz Ali, Saifullah, Mafiz alias Mafiz Ali, Abarak Ali and Jahui Ali were convicted under section 324 and each sentenced to :rigorous imprisonment for 1 year and 6 months. Besides, all the appellants were convicted under section 148 and sentenced to, rigorous imprisonment for 1 year and 6 months. The sentences passed upon the appellants, excepting appellant Sekendar Ali were directed to run concurrently. It may be mentioned that the assessors were divided in their opinion regarding the guilt of the appellants.
The incident took place in and at the southern bank of Goneshwarpur Bharang, a ditch 20 to 30 nals in length and 4 to 5 nals in breadth, one nal being equal to 6 cubits. The incident has not been disputed by the accused persons. According to the prosecution case, it arose out of dispute over the right of the complainant party, who belong to village Provakarpur, to take cattle of their village through the Dharang to a gochar to its north. On the other hand, according to the accused persons, who belong to village Mohammadpur, the incident arose out of catching of fish in the Bharang. As the facts of the case would show the incident resulted in the death of one Gazi Baksh and five other persons on the side of the complainant‑party, and eight persons on the side of the accused being injured. The injuries on two persons, one of each side, were grievous.
It is the case for the prosecution that on the day preceding the date of occurrence, Nimruj Ali (P. W. 8) and Kader A (P. W. 10) and two others of village Provakarpur were taking cattle of their village to the gochar through the Bharang. They were asked by some of the accused persons not to take the cattle through the Bharang. At this the former remonstrated saying that as they always used to take cattle through the Bharang to the gochar, they would do so in future. On the date of occurrence four cowherds, including deceased Gazi Baksh, were taking about 100 or 125 heads of cattle of village Provakarpur to the gochar to the north of the Bharang. As soon as some to the cattle got down into the Bharang the accused persons numbering about 50, or 60, obstructed them and asked them not to take cattle through the Bharang. An altercation ensued. The accused persons who were variously armed with kochshalas, suds and lathis attacked the cowherds. Appellant Tota struck Gazi Baksh with a kach shala. The other three cowherds were also assaulted by them. At the cries of the cowherds, a number of persons came to the place of occurrence. Two amongst them, namely, Surat Ali and Martuza were also assaulted by the accused persons. The accused persons then left the place. Deceased Gazi Baksh died on the way, while being carried to the thana.
The defence, as suggested to the prosecution witnesses in cross‑examination, and as sought to be made out through the defence witnesses, is one of right of private defence of person and property. The defence case is that there is no gochar at all on the north of the Bharang and there is no pathway leading from village Provakarpur to the Bharang. The defence claims that the accused persons were in possession of the Bharang. It is further claimed that on the day prior to the date of occurrence Torab Ali (P. W. 3) and Maniruddin (P. W. 17) came to catch fish in the Rharang. The Bharang was in possession of the accused persons. Kala Miah (D. W. 2), appellants Abarak Ali, Abdul Bari and Abdus Salam did not allow Torab Ali and Maniruddin to catch fish. It is said that having snatched away the nets and fishing implements from Torab Ali and Maniruddin, these appellants drove them away and while going away Torab Ali and Manirud din threatened Kala Miah and the above‑mentioned appellants that they would teach them a good lesson. On the date of occurrence, at about midday, P. Ws. Torab Ali, Maniruddin, Gyasuddin, Ghand Ali, Surat Ali, deceased Gazi Baksh and others numbering about 50 or 60 being variously armed with such weapons as sulfi, koch shala and lathis went to the Bharang and began catching fish from there. Appellants Abarak Ali and Sikandar Ali raised protest, whereupon the complainant party attacked them. Deceased Gazi Baksh hurled a koch shala at D. W. 2 Kala Mia who was not injured by it. Kala Mia took up the weapon, and in self defence he struck Gazi Baksh with that koch shala. The complainant party also assaulted appel lants Abarak Ali, Saifullah, Abdus Samad and Sikandar besides 4 other persons, on their side, namely, Abdul Bari, Ataullah, Salam and Kala Mia. Over the incident appellant Abarak Ali filed a criminal case against some of the prosecution witnesses under sections 326, 324 and 148 of the Pakistan Penal Code, which was pending trial.
Of the twenty witnesses examined by the prosecution besides one being tendered, fourteen are eye‑witnesses, namely, P. W. 1 Ghand Ali, P. W. 2 Akik Meah, P. W. 3 Torab Ali, P. W. 4 Surat Ali, P. W. 5 Martuza Ali, P. W. 6 Khalil Mia, P. W. 7 Modaris Ali, P. W. 8 Nimruj Ali, P. W. 10 Kader Ali, P. W. 15 Aftab Mia, P. W. 16 Idris Ali, P. W. 17 Maniruddin, P. W. 18 Israil Ali and P. W. 19 Abdul Khaleque. The Substance of the evidence of these eye‑witnesses is that while the four cowherds of village Provakarpur were taking the cattle of their village to the gochar through the Bharang to its north, the accused party being variously armed attacked them and in course whereof appellant Tota Miah struck Gazi Baksh on the left side of the chest with a koch shala. Gazi Baksh fell down and Tota took out the weapon from his body. Their further evidence is that appellant Mafiz injured Chand Ali (P. W. 1) with a sulfi, appellants Samad, Shunu Saifullah, Ayaz injured Akik (P. W. 2) with koch shala and sulphi, appellant Rajab Ali injured Torab Ali (P. W. 3) with koch shala. Evidence is also to the effect that appellant Abarak injured Surat (P. W. 4) and appellant Jahur injured Murtuza Ali (P. W. 5) with sub. After the accused persons and their men left, Gazi Baksh made a statement to the effect that Tota Mia assaulted him. Gazi Baksh died in course of the day, while he was being carried by some of these witnesses that the people of village Provakarpur used to graze their cattle on a gochar situated on the north of Ganeshwarpur Bharang and that they always used to take the cattle there through the Bharang. Some of them again sought to prove the prosecution story of the incident of the‑day before.
P. W. 11 Dr. A. K. Khalilur Rahman, Assistant Surgeon, who held the post‑mortem‑examination, found on the dead body of Gazi Bakhsh, "One punctured wound on the left side of the chest on the 3rd outer coastal space 2 " lateral to the midline, " x " cavity". The 3rd rib (left) corresponding to the injury was found fractured. Death of the deceased, according to the opinion of the doctor was due to shock and haemorrhage as a result of the injury which was ante-mortem and homicidal in nature.
P. W. 14 Dr. A. M. M. Hossain, examined on 9‑2‑64 P. W. 1 Chand Ali P. W. 2 Akik Mia, P. W. 3 Torab Ali, and P. W. 5 Mortuza Ali. He also examined on 12‑2‑64 P. W. 4 Surat Ali. He found various injuries on their persons caused by "sharp pointed weapons."
The learned Additional Sessions Judge believed the pro secution story that the accused persons assaulted deceased Gazi Baksh as well as five other persons on the side of the complainant.
In support of its case the defence examined four witnesses and exhibited several documents, of which Exh. B is the settlement map of mouza Goneshwarpur in which the Bharang in question is situated. The learned Additional Sessions Judge disbelieved the defence version of the incident. He reached the conclusion that the accused persons had no legal right, title or interest in the Bharang and that at best they could claim a right of easement. The learned Additional Sessions Judge finally held that the accused persons were not entitled to the right of private defence.
Mr. Bose has appeared before us on behalf of the appellants. He has sought to question the conviction of the appellants principally on the following grounds:
(1) That all the material witnesses in support of the pro secution case are very closely related to one another, and consequently their evidence could not be safely relied on for conviction of the appellants.
(2) That the prosecution has suppressed material facts of the case which, if fully disclosed, would go to establish that the appellants are not guilty of the offence they have been convicted of; and lastly.
(3) That the learned Additional Sessions Judge wrongly con victed tire appellants for acts done in the exercise of the right of private defence of person and property.
We have been referred to the relevant evidence which show that of the eye‑witnesses, P. Ws. 1, 2, 5, 7, 17 and 19 are co- accused in the counter case brought by appellant Abarak, that P. W. 10 is the couson of Asaddan, who is another co‑accused in that P. Ws. 1, 2, 3, 4, 5, 6, 7, 8, 15 and 18 are very closely related to one another. The remaining eye‑witness P. W. 16, however, denied enmity with some of the accused persons, we have also been referred to the evidence of P. W. I who admitted in cross- examination that there are about 80 families in Provakarpur village. He admitted that sixty families out of them and some cattle owners were not related to him. Mr. Bose has argued that true it is that the evidence of these witnesses in support of the prosecution case is somewhat overwhelming, but what is notice able, is that there is no corroboration of the above evidence by any independent witness even from village Provakarpur.
Dr. A. K. Khalilur Rahman, P. W. 11 said in cross‑examina tion that on the 9th February 1964, that is to say on the very day of the occurrence he examined appellants Abarak Ali, Saifullah, Abdus Samad and Sikander Ali, besides Abdul Bari, Ataullah, Salam and Kala Mia (D. W. 2). The doctor found injuries on these persons caused by sharp‑pointed weapons. Some of these patients were admitted in the hospital. He found two injuries on the person of Abarak Ali and injury No. I according to him was grievous in nature. Mr. Bose has contended that not a word had been said by the prosecution to explain how these appellants, together with four other persons on their side, received injuries in course of the incident. Mr. Bose has argued that the complainant party being fully armed came upon the land in possession of the accused persons and began forcibly catching fish in the Bharang and that on the protest raised by the accused, they began to assault the latter. He contends that it was in the exercise of right of private defence that the appellant assaulted the complainant party and were not therefore guilty of any offence in the eye of law.
There being no dispute regarding the occurrence and having regard to the prosecution and the defence versions of the incident, the vital question that falls for our determination is whether the appellants are at all entitled to the right of private defence and to what extent.
To understand the defence case it is convenient to set out the relevant portion of the evidence of D. W. 2 Kala Mia, a man from village Mohammadpur. The witness said:
"We erected a bundh on the west of the said Bharang. After erection of the said bundh we grew boro paddy in the Bharang for less than two years from date. We catch fish in the doba and we water our boro lands with water in this doba. Ananga Ash is the owner of the Bharang. We the villagers of Boro Mohammadpur possess the Bharang. There is no gochar of Provakarpur to the north of the Bharang. There is no path way or gopat from Provakarpur upto this Bharang. Goehar of Provakarpur is to the east of the Bharang.
I saw the occurrence. This occurrence did not take place over leading cattle to gochar but it took place over catching fish from the Bharang."
It is desirable that a portion of the evidence of D. W. 4 Ananga Bijoy Ash, be quoted in his own words. The witness said:
"We the Ash families are proprietor of Goneshwarpur Bharang. There is a doba or water portion in this Bharang. A bundh was erected on the western boundary of the Bharang. Before erection of bundh Aman Paddy used to be grown on the sourroundings of the doba. After bundh boro paddy is grown on the surrounding .of the doba, villagers of Mohammadpur catch fish from the doba and water the boro lands by water of the doba. Bharang is plot No. 231 of Goneshwarpur Mauza."
This witness (D. W. 4) further said that plots Nos. 34, 35, 41 and 230 of Mouza Goneshwarpur shown in the settlement map, Exh. B, immediately adjacent to the north of the Bharang, were boro lands and the lands on the further north were Aman land. On the southern side of the Bharang there were boro lands and further south Aman lands. The witness also said in cross- examination that plot No. 316 to the north of the Bharang was also Aman land, although it was pant land about 7 or 8 years ago this witness was not cross‑examined in the least by the prosecution as to his statement that plots Nos. 34, 35, 41 and 234 were bora lands and that the lands towards the further north were Aman lands or that to the north of the Bharang there was no gochar. In this regard the witness was cross‑examined only with reference to plots Nos. 316, 4,7,29 and 9 as to their character, whether they were paddy growing lands or patit lands. We have examined the C. S. map Exh. B (which seems to have been marked as Exh. C as well), we do not think that the latter plots, namely, plots Nos. 316, 4, 7, 29 and 9 would really be the lands to the north of the Bharang. D. W. 3 Abdul Kadar also claimed that there was no gochar on the northern bank of the Bharang nor there was a 'pathway or gopat from Provakarpur up to the Bharang. We do not find any reason why we should not accept the testimony of these witnesses. From what has been found by us in the settle ment map, Exh. B. And the evidence of D. Ws. 2, 3, 4 we have no hesitation in saying that the prosecution story that there is a gochar to the north of the Bharang has no legs to stand upon.
The learned Additional Sessions Judge held, as noted before; that the accused persons, if at all, had only an easement right. According to the learned Additional Sessions Judge they had no right of private defence of such a right and sought support in that respect from the case of Ram Rup (A I R 1939 Oudh 38). We do not agree. True it is that the accused persons had no title to the Bharang, which in fact they never claimed. It was testified to by P. W. 1 Chand Ali in unfolding the prosecution case, that this Bharang belongs to Jogendra Das Ash. Annya Bijoy Ash, son of Nogendra Kumar Ash, figuring as D. W. 4 in the case seems to support the defence claim of possession of the Bharang whose evidence we have already referred to. We have to bear in mind that the complainant‑party does not claim any right or interest in the Bharang except the right to take their cattle through it. We think it is reasonably possible to conclude from the above evidence, that the accused‑party were in possession of the Bharang. They used to grow paddy in ex‑portion of the Bharang and catch fish in the remaining portion the doba. They also used water of the doba for cultivation. The accused persons undoubtedly had a possessory right. In this view of the matter the decision in the case of Ram Rup referred to above has no manner of application to the present case.
It is also relevant to note that P. W. 3 Torab Ali admitted in cross‑examination that "except on the day of occurrence and on the previous day, none opposed" them "taking cattle through the Bharang at any other time". The prosecution has failed to prove the existence of the gochar to the north of the Bharang. Accordingly, we find it difficult to accept the testimony of the 13 eye‑witnesses regarding the manner of occurrence. We are constrained to doubt the main burden of the prosecution case, namely, that the occurrence took place over the question of taking cattle of village Provakarpur to the gochar through to Bharang to its north.
Upon the materials on record we have no reason to disbelieve the defence version that the appellants together with four others on their side sustained injuries on their persons in course of the incident, as were found by P. W. 11 Dr. A. K. Khalilur Rahman. But unfortunately the prosecution has not endeavoured in the least to explain how these eight persons sustained injuries. In fact, the prosecution case, as sought to be made out totally excludes the possibility of such injuries, being inflicted on the accused persons. This aspect of the case does not seem fit have received much attention of the learned Additional Sessions Judge.
We are inclined to hold that the prosecution has not made a full and true disclosure of the whole of the circumstances of the case. We cannot‑ determine with any degree of certainty as to the manner in which the appellants inflicted injuries on the persons on the side of the complainant. We are bound to say, therefore, that this is a case where facts relating to the incident are wanting and the evidence which ought to have led was not led to bring to light the full facts of the occurrence. The doubt obtaining in the situation, in consequence, is of such of character that it renders it impossible for us to draw inferences from the facts sought to be established by the prosecution and to hold safely that the accused are guilty of the offence they were charged with. On the other hand, regard being had to the facts and circumstances, so far as they have been disclosed and, especially, in view of the conclusion we have reached, namely, that the Bharang was in the possession of the people of village Mohammadpur, that is to say, of the accused, that the occurrence took place over catch ing fish in the Bharang is more likely to be true. Indisputably the accused persons had the right to defend their possession of the Bnarang. Instead of heeding to their protest, the complainant party insisted on taking their cattle through the Bharang, which contained standing paddy. The complainant‑party also inflicted penetrating injuries by means of spears on several persons on the side of the accused, including a grievous injury on the chest of accused Abarak (appellant No. 8), as found by and deposed to in cross‑examination by P. W. 11 Dr. A. K. Khalilur Rahman. We are inclined, therefore, to accept Mr. Bose's contention that the accused could legitimately claim right of private defence of person, as of property. The only question that remains to be examined now is whether the appellant exceeded that right.
A person has a right to defend his own body and the body of any other person against any offence affecting the human body and also the right to defend the property whether of himself or of any other person. The right of private defence of tile body extends, subject to certain restrictions which do not apply to the facts of the present case, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right amongst others be an assault which may reasonably cause the apprehension of death or grievous hurt. The right, of private defence of the body or of the property commences as soon as a reasonable apprehension of danger to the body or to the property arises.
The defence case that it was D. W. 2 Kala Mia who, having caught hold of the koch shah thrown at him by deceased Gazi Baksh hurled it back to the assailant may or may not be true. But then if Gazi Baksh, or any one on the side of complainant party sought to cause any harm to any person on the side of the accused party, everybody of the latter party had a right to resist the same; and if the assault or the attempt to commit the same by the complainant party cause the apprehension of death or grievous hurt, the right of private defence of the accused party would extend to the causing of death to the assailant. In the present case Abarak received a grievous injury, and seven others on the side of the appellants sustained incised wounds. Even if we accept the finding of the learned Additional Sessions Judge that it was the accused persons who inflicted the injuries on six persons including Gazi Baksh on the side of the complainant party, we are inclined to hold that it is not unlikely, that the appellants had acted on the reasonable apprehension of death, or grievous hurt and, therefore, did not commit any offence.
The learned Additional Session s Judge was of the view that the accused party, armed with deadly weapons, came ready from their houses to fight with and assault the complainant when the latter would come to the Bharang with their cattle. It further appeared to the learned Additional Sessions Judge that the riot committed by the accused was premeditated and pre‑arranged and that it was a case of free fight. The learned Additional Sessions Judge accordingly held on the basis of the decision in the casa of Syed Ali Bepari v. Nibaran Molla and others (P L D 1962 S C 502) that there was no right of private defence available to the accused persons. The facts of the present case are distinguishable from those of the case cited. The facts in that case were as follows: ‑
"According to the prosecution the accused persons along with others numbering twenty or twenty five trespassed upon Ahmed Bepari's land in Mouza Patrail and started reaping paddy from the said land. On the protest by Ahmed Bepari and his companions Nibaran Molla under the order of Adu Molla, struck Ahmed Bepari with a Katra. The defence version of the incident as suggested to the prosecution was that Adu Mollah had grown paddy on his land of Gobindapur Mouza which adjoins Ahmed Bepari's land to the south. As the complainant party forcibly entered upon that land with a view to reap the paddy grown by Adu Mollah and also assaulted the members of the accused party there was a free fight in the course of which members of both the parties were injured and it was no known who beat whom."
In the case under reference their Lordships of the Supreme Court observed:
"There is, however, no satisfactory evidence that either party was in exclusive or undisturbed possession of the land. A legitimate conclusion therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property."
In the present case we have already found that the accused persons were in possession of the Bharang and, therefore, they had every right to defend the same. Lie think that the learned Additional Sessions Judge wrongly interpreted Syed Ali Bepari's case which, in our view, has no application to the present case.
The learned Additional Sessions Judge also relied on the case of Jamshed Ali (5 D L R 369). The facts of the present case are clearly distinguishable from the facts of Jamashed Ali's case. That case was decided, amongst others, on the basis of the following finding:
"in view of the evidence on record and the history of the litigation between the parties and in particular to the question of disputed plot of land we have no hesitation in holding that at the time of occurrence a particular plot of land was in possession of the complainant party."
To repeat once again, we have found that the Bharang was in the possession of the accused party.
Their Lordships of the Supreme Court as well as of the High Court, it seems to us, made an obvious distinction between the two categories of cases: (1) a person claiming protection for his acts in defending a property in his possession and (2) a person claiming protection for his acts in enforcing his right or supposed right being out of possession or where possession is in dispute. While in the former case the person in rightful possession may, legitimately raise the plea of right of private defence, in the latter case it cannot be said that there arises a question of right of private defence. And we cannot experts ourselves in more clear terms with respect to this latter category of case than by referring once again to the words of the Supreme Court in Syed Ali's case cited above that in such a situation it is impossible to say that the accused was acting on the defensive merely or acting in the exercise of any right of private defence of persons or property. We would like to observe, however, that the two categories of cases must be seen in clear perspective and the distinction between the two, as of necessity maintained.
The decision in Syed Ali's case, it appears to us, is no authority for the proposition that "in a free fight or premeditated and pre‑arranged fight" as was held by the learned Additional Sessions Judge, no question of right of private defence arises. The person in rightful possession is not debarred from raising the plea of right of private defence merely because apprehending a an attack upon the property, he collects his strength and when the anticipated attack does come, defends his own, though in the resultant situation of a free fight.
In this connection we may respectfully refer to the case of Safdar Ali v. Crown (P L D 1953 F C 93) which was notices by their Lordships of the Supreme Court in case of Syed Alt Bepari. In referring ourselves to the case, we can do no better than to quote what was said by his Lordship Abdul Rashid the Chief Justice of Pakistan. His Lordship said:
"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
It was also observed in the said case by Cornelius, J. as his Lordship then was:
"The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extend to which the charges may be held to have been proved, as it is to examine the prosecution case side by side with the defence case in reaching a decision on the accused's special pleading . . . . . . ."
Such views as above were conceived by his Lordship Cornelius, J. to be the meaning of the illustrious words pronounced by Viscount Sankey L. C. In the leading case of Wootmington (L R 1935 A C 462); "the verdict must be given not on any special pleading but upon and the result of the whole of the case."
Having kept these celebrated authorities in view, we have found the plea of right of private defence of person and property raised by the appellants materially established. The only question whether the right has been exceeded has also been answered by us in the negative. On the same consideration the charge under section 148 equally falls through.
The result, therefore, is that the appeal is accepted. W e set aside the order of conviction and sentence passed upon the appellants and acquit them of the charges.
We direct that appellant No. 1 Tota Mia be set at liberty forthwith, if not wanted in any other connection.
Appellants Nos. 2 to 10 who are on bail are discharged from their bail bonds.
‑‑I agree.
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