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Judgment
R.J. Bahadur, J.—In Sessions Trial No. 30 of 1966 four brothers were tried for various offences under the Penal Code. Appellant Shamsul has been convicted u/s 324 of the Penal Code for causing hurt to Safiruddin (P.W. 6) by a pharsa and sentenced to suffer rigorous imprisonment for three years, Appellant Sk. Rafique has been convicted u/s 302, Penal Code, for the murder of his brother Yakub and sentenced to undergo rigorous imprisonment for life. He has also been convicted u/s 326 for causing grievous hurt to P.W. 6 but no separate sentence was passed under this count, Appellant Sk. Saidul Rahman alias Saidu has been convicted u/s 302 of the Penal Code for the murder of Sk. Hafizuddin, his step-brother and sentenced to suffer rigorous imprisonment for lie. The 4th accused Abul Hussain was tried u/s 302/34 of the Penal Code and was acquitted. It appears that in village Pokharia, within the jurisdiction of Police Station Azamnagar, in the district of Purnea, Sk. Karamat Ali, father of these appellants, died in 1963. He left behind three sons by his first wife, namely, Tamiruddin, Hafizuddin (deceased) and Safiruddin (P.W. 6); and also two daughters. By his second wife Karamat Ali left five sons, namely, Yakub (deceased), Abul Hussain (since acquitted) and appellants Shamsul, Rafique and Saidul Rahman. The prosecution case is that at about 9 A.M. on the 9th May, 1965, when Hafizuddin, Safiruddin, Yakub and five other members of their family were ploughing the southern portion of plot no. 410, which had fallen to their share by private partition amongst the brothers, Shamsul, armed with a pharsa, and Abul Hussain, Saidul and Rafique, armed with a suli (sharp pointed iron rod fitted to a lathi) went upon the land where Saidul inflicted a suli blow on the chest of Hafizuddin; Abul Hussain inflicted a blow by the lathi portion of the suli on his head as a result of which Hafizuddin fell down and died instantaneously. Rafique is said to have inflicted a suli blow on the chest of Yakub and as the latter was falling down, he inflicted another blow with it near the armpit, while Abul Hussain inflicted a blow by the lathi portion of the suli on Yakub''s head, who also died. Shamsul inflicted a pharsa blow on the head of Safiruddin (P.W. 6) and Rafique attempted to inflict a suli blow on him but he warded it off by his left hand and in doing so the suli blow fell on his left hand causing punctured wound and fracture. It is said that while the occurrence was taking place, a co-villager, named, Gayasuddin, ran to the Mukhiya of Ruhia Gram panchayat named Naziruddin (P.W. 4) and gave him the information about the occurrence, P.W. 4 came to the place of occurrence and found the dead bodies of Hafizuddin and Yakub lying in the south eastern corner of the land near a tatti. He found eight ploughs and 2 pitchers of water and also noticed blood-like marks on the earth in the field and on the tatti. He sent a written report to the officer-in-charge of the Police Station Azamnagar through a Chaukidar, Rupan Rai, which was handed over to the Assistant Sub-Inspector of Police (P.W. 11), in absence of the officer-in-charge. P.W. 11 drew up formal first information report and forwarded the information to the officer-in-charge through the said Chaukidar and left for the place of occurrence where he reached at 11.30. A.M. He held inquest over the two dead bodies.
The officer-in-charge of the Police Station, Brahmdeo Narain Singh (P.W. 14) reached the place the same day at 12.30. He found the place of occurrence to be the southern portion of plot no. 410 (the disputed land), which was situated about 150 yards to the east of the houses of the parties. To the west of the disputed land was a bansbari. The entire plot was the charan of river Kankhan. He found the disputed land ploughed previously and in the northern portion of the plot there were jungles and the land was lying parti. The disputed land appeared to be freshly ploughed. He noticed santhi tattis on the eastern and southern boundaries of the disputed land. He found blood-like marks on the tatti. He found trampling marks on the ground, which was wet. P.W. 14 handed over charge of the investigation on the 7th August, 1965, to his successor Kameshwar Prasad Singh (P.W. 15), who submitted charge sheet against the four accused persons.
The defence of the accused persons at the trial was that they were in possession of the disputed land and that the manner of occurrence as alleged was false. Their further plea was, as can be gathered from the trend of cross-examination of the prosecution witnesses, that on the day in question the prosecution party came to the place of occurrence to take forcible possession of the land, which was actually in physical possession of the accused persons.
The findings arrived at by the learned Judge are: (a) the prosecution had failed to prove its case of private partition by cogent and reliable evidence, (h) the prosecution was in actual physical possession of the southern portion of plot no. 410 in which they had grown onions about a month before the occurrence and had ploughed it 15 to 20 days before the present occurrence, and (c) when the prosecution party went to plough the said piece of land with eight ploughs on the day in question, the occurrence took place. Upon the occurrence in question the learned Judge has accepted the evidence of the prosecution witnesses, namely, P.Ws. 1, 3, 5 and 6 and has held that the prosecution case regarding the occurrence has been proved. He has also held that Saidul had inflicted a suli blow on Hafizuddin as a result of which he died instantaneously at the place. He further held that Rafique had committed the murder of Yakub by inflicting suli blow on him and, therefore, both the said accused persons were guilty of murder punishable u/s 302 of the Penal Code. The evidence of the prosecution witnesses regarding the assault on Safiruddin (P.W. 6 ) has also been accepted; as also their evidence in regard to the assault on P.W. 6 by Shamsul.
Learned counsel appearing on behalf of the appellants has not questioned the findings arrived at by the learned Judge in respect of the occurrence. His contention is that some kind of occurrence did take place on the day in question at the place and at about the time suggested by the prosecution in which two persons died as a result of the injuries sustained by them. He, however, contended that the manner of occurrence, as alleged by the prosecution, could not possibly be accepted. Learned counsel has further urged that the findings of the court below regarding possession over the field of occurrence are wrong inasmuch as the field was coming in possession of the accused persons and on the day of occurrence the prosecution party wanted to take forcible possession of the same to which there was resistance whereupon the prosecution party started the assault. Thus, the second finding, referred to above, has been challenged before us. We have not been invited to reverse the other findings by either party and, therefore, it is unnecessary to deal with the evidence on those points as I see no reason to differ from the conclusions reached by the court below, which, in my opinion, appear to have been correctly arrived at.
Let me, therefore, first deal with the question of possession. The learned Judge has accepted the evidence led by the prosecution in this respect and it is urged by learned counsel that he was in error in doing so. There is no doubt that a number of witnesses have consistently stated that they were in possession of the disputed land; for instance, Safiruddin (P.W. 6) has said that the southern portion of the disputed land was ijmal between them and Yakub. Many had seen Yakub growing onions. Similarly, Jaliluddin (P.W. 1) has said that they were in possession of the southern half of the field, which they had got by private partition. Tamiruddin (P.W. 2) has said that by private partition they had got the southern portion of the plot and remained in possession of the disputed land after partition. It was suggested to him in cross-examination that the accused persons were in possession but he denied. He further denied that he had made any statement before the police, though he had done so, that the accused persons wanted to have the southern portion and hence the trouble arose. He has further admitted that before the occurrence, the accused persons had filed a partition suit and had obtained ex-parte decree for the land in dispute, which was not included in the partition suit. It was further suggested to him that they were enraged on account of the said ex parte decree and, therefore, took a mob on the day in question to dispossess them from the southern portion of the land, which he denied. It is difficult to accept the prosecution evidence on this point in view of the fact that an independent and responsible person, like the Mukhia of Ruhia Gram Panchayat, namely, Naziruddin, (P.W. 4) has stated that the southern portion, which was about 2 or 2� bighas, was in possession of accused Rafique, Shamsul, Saidul and Abul. This finds support from the evidence of the investigating officer as the case of growing of onions set up by the prosecution appears to be false. Besides, the southern portion of the plot not having been included in the list of properties in the partition suit is a further circumstance to show that the prosecution party could not be in possession and indicates that the accused persons were in possession of the same. There is further the evidence of Qaiyum (P.W. 7), who is the son of deceased Hafizuddin, that prior to the date of occurrence the accused persons used to cultivate their disputed plot. It has been said on behalf of the State that this witness was declared hostile and was permitted to be cross-examined by the prosecution and so no reliance should be placed on his evidence. There is, however, this difficulty that his evidence also finds support from the evidence of the Mukhia (P.W. 4), who also has his own land near the land in question. I see no reason for accepting the view taken by the court below that the Mukhiya has tried to help the accused persons as there is not sufficient material in justification of the said view. There is another indication to show that it was the accused persons, who were in possession, and not the prosecution, because contiguous south of the disputed land is the khas land of Safiruddin (P.W. 6) and Tamiruddin (P.W. 2) and there is tatti in between the two, which shows demarcation of the disputed land from the aforesaid land of the prosecution party. This is supported by the evidence of the Investigating Officer (P.W. 14). For these reasons I accept the contention raised on behalf of the appellants and hold, in disagreement with the view taken by the court below, that the accused persons were in physical possession of the disputed land, namely, the southern portion of plot no. 410 on the day in question.
Before I take up the evidence of actual assault on the two deceased persons, and Safiruddin (P.W. 6), I may refer to the medical evidence in the case. Dr. R.L. Sinha (P.W. 10), who was the Civil Assistant Surgeon of Kishanganj hospital, held post mortem examination on the dead body of Hafizuddin on the 10th May, 1965, at 9 A.M. and found the following ante-mortem injuries on his person:
(1) One vertical punctured wound �" X 1/3" X chest cavity deep in front of the chest by the right side of sternum over the medial part of the fourth right intercostal space puncturing the pericardium right auricle, left auricle puncturing further the pericardium, the left pleural cavity, the left lower lobe of the lung and pleura, with a vertical cut on the sixth rib on its posterior portion. The wound directed left backwards. The pericardial cavity contained half pound of dark liquid blood and the left pleural cavity contained two pounds of dark liquid blood.
(2) One lacerated transverse wound of size 2" x �" x scalp deep over the back of the right side of skull.
(3) Ecchymosis of size 2" x 1" lying antroposteriorly over the right temple.
The death was due to shock and haemorrhage as a result of injury no. 1, which was caused by as sharp, long and pointed weapon such as suli. Injury no. 1 was sufficient to cause instantaneous death. Injury nos. 2 and 3 were caused by hard and blunt weapon such as lathis. The death appeared to have occurred in between 18 and 36 hours before the post-mortem examination.
The same day P.W. 10 held post-mortem examination on the body of Yakub, and he found the following ante mortem injuries on his person
(1) Vertical punctured wound of size �" x 1/3" chest cavity deep over the front of the left side of the chest by the side of the left margin of the sternum cutting vertically, the medial and of the third left coastal cartilage puncturing the pericardium and the left auricle, further puncturing the left pleural cavity and the medial surface of the left lung. The wound directed backward and to the left. Pericardial cavity contained 1/4 pound of dark liquid blood and the left pleural cavity contained 1� pound of dark liquid blood.
(2) One vertical punctured wound of size 1" x 3/4" x chest cavity deep, below the right axilla cutting on its way the third right rib, puncturing the right pleura and the upper lobe of the right lung. The pleural cavity contained one pound of dark liquid blood. The wound directed to the left and backwards.
(3) One lacerated wound of size of 1" x �" x scalp deep, over the back of the middle of skull.
The death, in the doctor''s opinion was due to shock and haemorrhage due to injury nos. 1 and 2, which were caused by a sharp and long weapon such as suli. The injuries were sufficient to cause instantaneous death. Injury no. 2 was caused by hard and blunt weapon, such as lathi, and the death occurred in between 18 and 36 hours of the examination.
Dr. Madanjee (P.W. 13), who was Medical Officer at Azamnagar, had examined Safiruddin (P.W. 6) on the 9th May, 1965, at 7.30 P.M. and had found the following two injuries on his person:
(i) Incised wound 3" x �" x bone deep on the left parietal bone at its back.
(ii) Punctured wound �" x 1/6" x �" on the lower third and inner side of left forearm.
(iii) Simple fracture of the lower end of left ulna all above the wrist joint.
Injury no. 3 was grievous and the other two were simple in nature. Injury no. 1 was caused by a sharp cutting instrument such as pharsa and injury no. 2 was caused by a sharp pointed weapon such as suli, while injury no. 3, by hard and blunt substance, such as lathi. The age appeared to be within 12 hours. Injury no. 3 could be the result of injury no. 2, if the blow were severe and the blow fell on the bone.
P.W. 13 examined Saidul Rahman alias Saidu on the 14th May, 1965, at 11.30 A.M. and found the following two injuries:
(i) One healed up abrasion �" x �" on the lower third and inner side of the left forearm.
(ii) One healed up lacerated wound �" x 1/6" on the right parietal bone at its back.
Both the injuries were simple in nature, having been caused by hard and blunt substance, the age being within six days of the examination.
The same day at 11-40 A.M. P.W. 13 examined appellant Shamsul and found the following two injuries on his person:
(i) One healed up abrasion �" x 1/6" on the bridge of the nose.
(ii) One healed up lacerated wound 1/6" x 1/6" on the tip of right great toe.
Both the injuries were simple in nature and appeared to have been caused by hard blunt substance, the age being within six days.
As I have said earlier, learned counsel for the appellants has not challenged the factum of the murder of Hafizuddin and Yakub nor has he attacked the finding arrived at by the learned Judge in this connection, which is established by the testimony of the witnesses and which also finds support from the medical evidence. The finding in respect of the injuries caused to Safiruddin has also not been questioned, which also is established by the evidence of the eye-witnesses and supported by the medical evidence. The evidence tendered by the prosecution, however, does not explain the insignificant injuries caused to two accused persons, namely, Shamsul and Saidul Rahman, but that, in my opinion, would hardly be sufficient reason by itself for rejecting the prosecution evidence in the case, as suggested by learned counsel for the appellants. On the other hand it shows that both sides took part in an occurrence, which took place on the day in question.
Let me now deal with the actual evidence of assault. Jaliluddin (P.W. 1) is the son of Tamiruddin (P.W. 2), the eldest son of Karamat Ali by the first wife. He is only 20 years old and has described himself to be a student. The substance of his evidence is that at about 8-30 A.M. in the morning in question he along with Hafizuddin, Yakub (both deceased). Safiruddin (P.W. 6), Quaiyum (P.W. 7), Khalil (P.W. 3), Safique (P.W. 5) and Mannan had gone to plough their field. After they had ploughed three furrows all round, the four accused persons came up. Rafique, Saidul and Abul Hussain had a suli each and accused Shamsul had a pharsa. As soon as they reached the disputed land, Saidul inflicted a suli blow on the chest of Hafizuddin. Abul Hussain inflicted a lathi blow on the head of Hafizuddin on which the latter fell down on the ground just by the side of the tatti. The tatti also fell. He died instantaneously. Rafique inflicted suli blow on the chest of Yakub and when the former attempted to inflict a second blow, Yakub tried to move away and in that process the blow struck him on his chest below the arm-pit. He fell down. Abul Hussain then inflicted a blow by the lathi portion of the suli on his head. Shamsul inflicted a pharsa blow on the head of Safiruddin (P.W. 6). Rafique attempted to inflict a suli blow on the chest of Safiruddin but the latter tried to ward it off by his left hand and the suli pierced his left hand. Thereafter the accused persons fled away, After a few minutes Yakub died at the place.
The criticisms against the evidence of P.W. 1 are that he being young and a student could not possibly have been sent to plough the disputed land, Besides the story given by him about the occurrence appears to be improbable because when he just arrived the assault started. It is said that when the Mukhiya came, the witnesses could not give the details and as such it must be held that they had not actually seen any occurrence. It is said that in cross-examination the witness has stated that he sat at a distance of 10 or 15 cubits from the place of assault. He said that the other eye-witnesses also saw the occurrence. But it was suggested to him, which he denied, that those witnesses did not fly away or leave the place. It is not, however, clear that P.W. 1 himself left even before the assault took place. It is said that there is an indication from the written report of the Mukhiya that at the time of occurrence the witnesses, namely, P.Ws. 1, 3, 5, 6 and 7 were present but it does not say that they had seen the occurrence. On the other hand the evidence shows that the witnesses ran away before the assault started and, therefore, they did not see the occurrence. It is said that there is another curious feature to support the contention raised by learned counsel that immediately after the occurrence the villagers arrived at the place and yet the witness did not give the details of the occurrence and about the individual assaults. We have been referred to the evidence of Khalil (P.W. 3) to show that according to the evidence of this witness he (P.W. 3) was afraid on seeing the accused persons coming and then he along with Jalil (P.W. 1) and other persons left their ploughs and bullocks and stood at a distance of 20 to 25 cubits towards the north from where they saw the occurrence. It has been pointed out from the evidence of the investigating officer (P.W. 14) that he and the witnesses fled towards their house and he did not see the marpit. The house on the evidence is towards south while he stood towards north and, therefore, it is said that he could not have seen the individual assault.
Khalil (P.W. 3) is also a student and a son of Safiruddin (P.W. 6). He had also accompanied Jaliluddin for the purpose of ploughing. His evidence in court appears to be contradicted from the statements made before the police just referred to above. It is, therefore, clear to me, on a consideration of the evidence of P.Ws. 1 and 3 that this part of the evidence that they had seen the individual assault with their own eye is not free from doubt and may well be an imagination or exaggeration.
Rafique (P.W. 5) is the son of Hafizuddin and is aged 12 years. The learned Judge satisfied himself by putting questions that the witness was capable of understanding and giving rational answers. His evidence is identical as that of Jaliluddin (P.W. 1) about the manner of occurrence. The learned Judge has accepted his evidence to be true. Learned counsel has, however, attacked his evidence on various grounds and has pointed out to that portion of his testimony where he has omitted that Safiruddin (P.W. 6) had talked to the police officer and then went home. His evidence is also attacked on the ground that he had stated before the police that when the accused persons came, he fled out of fear and the criticisms are identical as have been made in the case of P.Ws. 1 and 3. On a perusal and consideration of the evidence of this witness, along with the evidence of P.Ws. 1 and 3, I have tried to disengage the truth from falsehood or the exaggerated portion of the evidence of the said three witnesses and have made endeavour to shift the grain form the chaff, and I am satisfied that their evidence as a whole is straightforward but the portion where they have claimed to have seen the individual assault as witnesses does not appear to be free from doubt and, therefore, it may not be safe to act on this part of their evidence. (See for instance, (1) Abdul Gani and Others Vs. State of Madhya Pradesh, .) That would not, however, justify in holding the entire case of the prosecution to be untrue because there is still the evidence of Safiruddin (P.W. 6), who is apparently the most competent witness having been assaulted for which there is a charge against Rafique u/s 326 of the Penal Code. There can be no doubt that he was present in the occurrence in question otherwise he would not have sustained pharsa injury on the head.
The substance of the evidence of P.W. 6 is that on the day in question he had gone to plough the land and there were other seven persons (as stated by P.W. 1). The rest of the evidence about assault is identical as that of the other eye-witnesses. He stated that Shamsul had inflicted a pharsa blow on his head and when Rafique wanted to inflict a suli blow on him, he warded it off by his left hand with the result that the suli fell on his left hand causing hurt to his hand. He said that after the occurrence Mukhiya and the police officer came to the place whom he described the occurrence. At the instance of the Sub-Inspector of police he was sent to Azamnagar hospital where his injuries were medically examined. He has denied the suggestion in cross-examination that after the accused persons came to the place, all of them (prosecution witnesses and himself) fled away. He asserted that those persons left the place and stood at a distance of 7 or 8 cubits away. It has been elicited from him in cross-examination that Saiyed did try to unyoke but he could not succeed and then the assault took place. He denied that he had assaulted Saidul with the lathi portion of the ballam. He also denied that Hafizuddin and Yakub had jointly attacked Saidu with suli from right and left. No substantial material has been brought out in his testimony on the point of occurrence. I am satisfied on a perusal and consideration of his evidence that it represents the truth as to what really happened on the day in question and, therefore, I accept the evidence of P.W. 6 in respect of the parts ascribed to each of the three accused persons, who are the appellants here and hold that Hafizuddin and Yakub had died as a result of the injuries inflicted on them by the respective two accused persons aforesaid. The evidence of P.W. 6 is sufficiently corroborated by the evidence of P.Ws. 1, 3 and 5 to this extent that the accused persons were present and took part in the assault and that the two deceased persons, as also Safiruddin received injuries in the occurrence in question. Though I have not accepted the evidence of P.Ws. 1, 3 and 5 as eye-witnesses to the individual assault, yet I am of opinion that their evidence could be treated as corroboration of the fact that the accused persons were connected with the crime for which they had been put on trial.
The next question for consideration is what offence has been committed by the appellant nos. 2 and 3, i.e., Rafique and Saidul. On a consideration of the evidence and circumstances, referred to above, and in view of the findings that there was no private partition and that the accused persons were in physical possession of the disputed land on the day of occurrence, it appears to me that there is force in the contention raised on behalf of the appellant. In the circumstances, in all probability the prosecution party were aggressors. That, however, would not exonerate appellants 2 and 3, Rafique and Saidul, for the respective injuries which they caused on Yakub and Hafizuddin. The injury in each case was fatal one from which both Yakub and Hafizuddin expired soon after it was inflicted; and in order to be exonerated from the consequence of inflicting the respective injuries, it is necessary for Rafique and Saidul to prove that they were protected by the right of private defence of property. The question of right of private defence of person does not arise on the materials on record.
The further question that now arises for consideration is whether the two accused persons are protected by the Fourth Clause of Section 103 of the Penal Code. That section protects a person who has caused death, if death has been caused in the exercise of the right of private defence in certain circumstances only. The Fourth Clause deals specifically with cases where the act which causes the exercise of the right of private defence amounts to theft, mischief, or house-trespass. The Clause, however, does not justify the causing of death in all cases in which these offences are being committed. The language of the Clause is quite clear which is as follows:--
Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
The meaning is obvious that when the act, which amounts to theft, mischief or house-trespass is such as per se to cause a reasonable apprehension that death or grievous hurt will be the result then the causing of death in order to prevent the commission of such act is justified. It is equally clear that this clause does not apply when the apprehension of death arises by reason of the intervention of the persons exercising the right of private defence, Section 104 applies in cases where an injury (but not death) is inflicted on the offender in the course of his committing the offences of theft, mischief or criminal trespass by the person exercising the right of private defence. Section 105 defines the commencement and continuance of the right of private defence of property and such a right commences with reasonable apprehension of danger. On a consideration of the provisions of the various sections, referred to above, it is quite clear that in the instant case the accused persons had the right to cause any harm on the prosecution party other than death. The accused persons were, therefore, not justified in causing the death of Yakub and Hafizuddin. The weapon used by Rafique and Saidul was a suli and each of them must have known that an injury inflicted with such weapon was likely to cause death, even though neither of them had any intention either to cause death or grievous bodily injury. I would, therefore, alter the conviction from one of murder to one under the Second Part of Section 304 of the Penal Code. The conviction of Rafique and Saidul u/s 302 of the Penal Code and the sentence of rigorous imprisonment for life passed on them are set aside. They are convicted u/s 304, Second Part, of the Penal Code and each is sentenced to suffer rigorous imprisonment for ten years.
For the reasons already expressed, I am satisfied that Rafique was also rightly convicted u/s 326, Indian Penal Code, which is upheld.
Though the consistent evidence of Safiruddin (P.W. 6), and supported by the witnesses, whom I have accepted for the purpose of corroboration, undoubtedly shows that Shamsul had inflicted injuries on the person of Safiruddin (P.W. 6) for which he has been convicted u/s 324, Penal Code, cannot possibly be sustained on the conclusion that I have arrived at in this case. He cannot be said to have exceeded the right of private defence of property in having inflicted injury caused to P.W. 6. He must, therefore, be exonerated of the charge made against him and must be acquitted. In the result, the appeal of appellant no. 2, Rafique, and that of appellant no. 3, Saidul Rahman alias Saidu, is dismissed subject to the modification in the conviction and the sentence, as mentioned above. The appeal of Sk. Shamsul succeeds and he is acquitted. His bail bond shall stand cancelled.
B.P. Sinha, J.
I agree.