Farid Shekh and Others vs The State and Another

Mitter, J.—The appellants and several others were placed upon their trial upon, inter alia, a charge under sec. 307 read with sec. 34 of the Indian Penal Code before a learned Sessions Judge sitting with a jury. After the Public Prosecutor''s address to the jury was over, the learned Judge, for reasons which were recorded by an order of the 6th January, 1956, altered the charge from one under sec, 307 read with sec. 34 to one under sec. 326 read with sec. 84. A fresh plea to the charge was taken from the accused, who pleaded not guilty. They were then offered an opportunity for further cross-examination of prosecution witnesses. They declined this offer and desired that the defence address to the jury should follow. This was done and, thereafter, the learned Judge summed up the case. The jury returned an unanimous verdict of guilty against the present appellants under sec. 326 read with sec. 34 of the Indian Penal Code. The prosecution case, which reveals a cruel attack upon a man called Atahar Rahaman, was as follows :

On the 13th July, 1955. Atahar Rahaman of village Kumarsanda, P.S. Kandi, was returning home from his jute field with a small load of grass. As he went along the pathway in front of appellant Farid''s house, he was questioned and caught hold of by the waist by Farid, while appellant Kalu and Bipad caught hold of him from his right and front sides. A man called Moslem Sekh came from a neighbouring house with a lathi and gave a blow with it on Atahar''s leg. He fell down crying. Other persons came from Farid''s house, lifted Atahar and took him inside Farid''s house. This incident on the pathway was witnessed by Atahar''s small son named Badaruddin, aged 11 to 12 years. Consequent upon Badaruddin informing his mother and brother of what he had seen, Atahar''s wife and son hurried to Farid''s house. In the meantime, the appellant tied Atahar with a piece of rope round his waist to a date-palm post and beat him mercilessly with sabal, atar and lathis. Atahar''s wife, Badaruddin and other son Iman Ali were obstructed when they attempted to enter Farid''s house. Badaruddin managed to slip in and hide himself in a cowshed, from where he saw his father being assaulted. News soon spread about the incident and a man called Sarat Ghose turned up and tried to intervene. The local Daffadar also turned up. Frustrated in his attempt to prevent any further attack on Atahar, Sarat Ghose returned to his house, took his gun and as he approached Farid''s house, he fired a blank shot. This caused the appellants and their associates to disperse. The attack inside the house was seen by Badaruddin from the cowshed. When the police arrived, this boy Badaruddin came out of the cowshed.

The injuries upon Atahar were so numerous and severe that it was a wonder that he survived. It appears that though grievously wounded, Atahar himself lodged the First Information.

The appellants'' defence was that Atahar, along with several men. including Sarat Ghose, trespassed into Farid''s house to forcibly take away a quantity of crops as his daughter''s share and that while inside the house, Atahar was caught and given a good beating. His associates were scared away by throwing of brickbats. None of the appellants, however, admitted'' that he was in any way responsible for the assaults.

Mrs. Mukti Maitra appearing on behalf of the appellants has contended that the charge having been altered after the address to the jury had commenced, and there being no fresh examination of the appellant under sec. 342 Cr. P.C., the entire trial was vitiated and that, accordingly, the verdict of the jury should be set aside. She has also contended that a sentence of 4 years'' rigorous imprisonment was, in the circumstances of the case, too harsh.

That the learned Judge had power, in the circumstances of this case, to alter the charge from one under sec. 307 read with sec. 34 to one under sec. 326 read with sec. 34 is not disputed before us. The material portions of the evidence in support of the prosecution case were brought to the notice of the appellants when they were examined under sec. 342 Cr. P.C. After the charge had been amended as aforesaid, the appellants were asked if they desired to have the prosecution witnesses recalled for further cross-examination. This they declined, and at their request the defence address to the jury followed. In view of the examination under sec. 342 Cr. P.C. which had already taken place, it was, in our view, wholly unnecessary to question the appellants again upon the self-same evidence. We cannot conceive that in the circumstances of this case any of the appellants could in any way have been prejudiced by not being examined afresh under sec. 842 Cr. P.C.

A point suggested by Mrs. Maitra, though not pursued, was that this was a case where the accused had a right of private defence, which they exceeded, and that they should, therefore, be treated leniently. As to this, all we need say is that there was no evidence that the entry on the part of Atahar into Farid''s house constituted a trespass or that he or any one on his behalf committed assault or any form of violence upon any of the inmates of the house. The defence case never went beyond the stage of suggestion. Therefore, there could not have been any case of exceeding any right of private defence. The attack, in our view, was wanton and without any ostensible provocation.

In our view, no ground has been made out for interfering with the verdict of the jury. The sentence imposed in each case was not, in our view, excessive. The appeal is, accordingly, dismissed. The order for compensation will stand.

Sen, J.

I agree.