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Judgment
Renupada Mukherjee, J.—The fifteen respondents of this appeal were placed on their trial before the Sessions Judge of Nadia, sitting with a jury on various charges, - respondent No.1, being tried on charges under Sections 302, 148 and 324 of the Indian Penal Code and the remaining fourteen respondents under Sections 147, 302/149 and 324/149 of the Indian Penal Code. The following is a brief summary of the prosecution case:
Senpara and Sisha are two contiguous villages - Sisha being to the north of Senpara. Some culturable lands of the two villages intervene between the inhabited portions and a patit bhita, called Fakirer Bhita, lies in the midst of the culturable lands of the two villages. The cowboys of Sisha used to graze their cattle on the above bhita which was objected to by the people of Senpara on account of damages caused by the cattle to their crops. On the day of occurrence, namely, on the 10th of Ashar, 1360 B.S., corresponding to the English date, the 24th June, 1953, three cowboys of Sisha village, namely, deceased Abhoy Charan Biswas, Rabindra Nath Biswas (P.W. 1) and Nirapada Biswas (P.W. 2) came to graze six heads of buffaloes on the above bhita, each being in-charge of two heads of buffaloes. At about 2 or 2.30 P.M., four of the accused respondents, namely, Kalipada Mandal, Parsha Mandal, Khokaram Mandal and Fakir Mistry came to that place and asked the cowboys to take away their cattle. This they refused to do whereupon some altercation followed. Following the altercation accused Kalipada struck a blow with a lathi on the head of Abhoy which was, however, warded off by the Mathail or indigenous umbrella which Abhoy was carrying upon his head. Abhoy snatched away the lathi and struck a blow on Kalipada and Fakir with the lathi. Thereafter the four accused persons named above went away towards Senpara. At about 3.30 P.M. on the afternoon of the same day the respondents came to the place again with many other people numbering about 30 or 40 in all. Respondent Bhupati carried a gun and respondent Sanat a Tangi and the other persons were also armed with various weapons such as falas, lathis, etc. Under orders of accused Sanat, accused Bhupati forthwith opened fire on deceased Abhoy, who fell down Bhupati fired another round injuring Nirapada. Rabindra fled away. In the meantime some people of Sisha, who were working on their land in the neighbourhood came to Fakirer Bhita, on hearing the gunshots. Accused Bhupati indiscriminately fired 5 or 6 rounds of shots injuring as many as ten persons viz., Dhirendra Nath Biswas (PW 3), Jay Krishna Mandal (PW 4), Gobinda Chandra Biswas (PW 5), Nrisinha Pada Biswas (PW 7), Sasadhar Mandal (PW 8), Dukhiram Mandal (PW 9), Kalipada Mandaln (PW 10), Dulal Chandra Mandal (PW 11), Dhiren Mandal (PW 12) and Kshitish Mandal (PW 14). Abhoy, who had been very seriously injured was dragged away to the house of accused Bhupati. His uncle Jadu Biswas, who got information of the occurrence came to the house of Bhupati and made necessary arrangements for removing him to his own house. In the meantime, an A.S.I., viz., Ramesh Chandra Chatterjee. PW 25, who had obtained information that there was an apprehension of a breach of the peace in this locality, came to the house of accused Bhuptai Biswas, who happened to be the President of the Union Board of this locality. He took charge of the situation and made arrangements fro sending such of the injured to the Hospital at Krishnagar. A written complaint was made over to him by Jadu Biswas, at 10 P.M., in the night. Abhoy had expired in the meantime. Ramesh Chatterjee, also sent information about this occurrence to Circle Inspector Nripendra Lal Roy Choudhury, PW 26, who visited the locale in the following morning and made some investigation. Thereafter he made over the investigation to Sudhangshu Kumar Mitra, PW 27, who submitted a charge sheet against the accused respondent after completion of investigation. The accused persons were thereafter placed upon their trial on the charges mentioned above and after preliminary enquiry before a Magistrate there were committed to the Court of sessions.
In their examination u/s 342 Cr. P.C. all the accused persons excepting accused Bhuptai Biswas simply pleaded their innocence denying their knowledge of, and complicity in the occurrence. The defence of accused Bhuptai Biswas, as it transpires from his statement u/s 342 Cr. P.C., was that at about 3.30 p.m. in the afternoon of the day in question, he heard a row at Fakirer Bhita. He went there alone with a gun which he had taken with him for scaring away some monkeys from his garden. When he went to Fakirer Bhita he was surrounded by 40/50 men of Sisha who attacked him and he fired in order to save his life. He further stated that he only fired two rounds and there were no other men of Senpara with him.
The Jury unanimously found all the accused persons not guilty of all the charges and the learned Judge who expressed his disagreement with the verdict was of opinion that no Reference was called for in the interests of justice because he did not consider the verdict to be plainly perverse or manifestly wrong. So he accepted the verdict of the Jury and acquitted all the accused persons of all the charges levelled against them. The State has appealed from this order of acquittal.
Mr. Banerjee appearing on behalf of the State contended that the verdict returned by the Jury is an erroneous verdict caused by serious misdirection contained in the charge of the learned Judge and the erroneous verdict had resulted in palpable failure of justice. Mr. Banerjee''s submission in this connection was that, either upon the evidence adduced in this case nor upon the statements made by the accused in their examination u/s 342 Cr. P.C., did there arise any case of exercise of the right of private defence of person or property, and yet, the learned Sessions Judge definitely postulated in his charge that the people of Sisha must have come prepared for a fight with Senpara people over the right of grazing cattle in the piece of land known as Fakirer Bhita.
It is now well settled that in taking a plea of exercise of the right of private defence of persons or property an accused person need not take it specifically or in so many terms nor need he adduce any evidence on his own behalf for substantiating such a plea. He may elicit such facts and circumstances from the cross-examination of prosecution witnesses as may support this plea and utilise them in meeting the case of the prosecution. Mr. Banerjee, however, contended on behalf of the State that although in this case no cross-examination of prosecution witnesses from which some reasonable inference might be made as to the existence of the right of private defence of the respondents the Judge virtually gave a direction to the Jury in positive terms that there were grounds for holding that the respondents had such a right. Mr. Banerjee drew our attention in particular to some passages in the charge to which I shall presently refer.
The prosecution story can broadly be divided into two parts : the first part relates to an incident which is alleged to have happened on Fakirer Bhita at 2 or 2.30 p.m. Regarding this part of the incident, the prosecution evidence is that when three cowboys of Sisha were grazing their cattle on this Bhita, 4 accused persons led by accused Kalipada Mandal, came there and protested. The cowboys did not pay any heed to their protest and some lathi blows were given by both sides. The learned Judge has dealt with this portion of the prosecution case at pp. 151 and 152 of the paper-book, a portion of which is quoted here:
"One thing, which you will naturally feel interested to know, is what led these four accused persons to retire from the encounter, which is the first part of the incident. They are all able-bodied men and were armed with lathis, while the three cowboys were unarmed, as will appear from the evidence of the witnesses named above. One of these cowboys, namely, Rabindra Nath PW 1) is a boy aged about 16 years. The deceased Abhay Charan, according to the evidence of the doctor (PW 20), was aged about 19, and the other cowboy Nirapada (PW 2), is aged about 22 years. Abhay Charan, according to the prosecution, snatched away a lathi from the hand of the accused Kalipada and dealt two successive blows with it, one on the head of Kalipada and the other on the head of the accused Fakir Mistri. The other two accused, Parsha Nath and Khokaram were also there with lathis, but they remained standing by as passive spectators of the assault by a boy of tender age like Abhay, and retired from the fight which they themselves started. Apparently, this would not be the normal conduct of a man under similar circumstances, but the fact stands established by the evidence of the said witnesses that thee four accused persons, after the Fakirer Bhita without making any further attempt to resist the cowboys and went towards their village Senpara. This is the picture that has been sought to be placed before you by the prosecution and, to my mind, it was merely a camouflage to cover the persistent or determined attempt on the part of the Sisha people to graze their cattle on the said Bhita and cause damage of the crops of their opponents, that soon followed will also clearly indicate that there were many other persons of Sisha behind the cowboys and that those persons were waiting in readiness on their lands in the neighbourhood to attack the people of Senpara, if and when the latter would come to drive away the cowboys or take away their cattle. The said four accused persons perhaps saw through this game and quietly retired from the fight with the idea of paying the Sisha people in their own coin."
From the above quotation from the charge it would appear that the learned Judge definitely told the Jury that there was a determined attempt on the part of Sisha people to graze their cattle on Fakirer Bhita and cause damage to the crops of their opponents, the people of Senpara. The Judge also told the Jury that there were many other people behind the three cowboys waiting in readiness on the land to attack the people of Senpara. The Judge further told the Jury that the four accused persons led by Kalipada saw through this game and quietly retired from the fight with the idea of paying the Sisha people in their own coin.
Now, on a perusal of the evidence adduced in the Sessions Court, it will be abundantly clear that the above assumptions made by the learned Sessions Judge are not founded upon any evidence and the Jury must have been completely misled by the above assumptions made by the learned Sessions Judge.
Whether an accused person acts or does not act in exercise of the right of private defence is a question entirely within the province of the Jury. Of course a Judge is entitled to express his opinion on such a question and give a suitable warning to the Jury that they are not bound to accept his opinion as they are masters of facts. In the present case not only is such a warning conspicuously by its absence on this important issue, but the learned Judge laid down dogmatically and emphatically that it was the Sisha people who played the role of aggressors and the Senpara people were merely paying them back in their own coin. In my judgment this amounts to a complete misappreciation of the evidence adduced in the Sessions Court. The prosecution version was that after Kalipada and his three associates had come back to the village from Fakirer Bhita being baffled in their attempt to drive away the cowboys, the Senpara people including the 15 respondents mustered strong in a body headed by accused Bhuptai, who carried a gun. It was further the definite prosecution case that Bhuptai opened fire on innocent cowboys and also on other people of Sisha, who had come to the place on hearing the sound of gunshots. This is the version of the occurrence sought to be established by the prosecution. It was open to the Jury either to accept the version or to reject it, but certainly the Sessions Judge had not justification to make an unwarranted assumption that the Sisha people were the aggressors.
I shall quote two other passages from the charge of the learned Sessions Judge to indicate how he misdirected the Jury on the question of the right of private defence which seems to have been the only defence of the respondents. At page 155 of the paper-book, the learned Judge has charged the Jurors as follows:
"This suggestion, which was put in cross-examination of PW''s 1, 2, 4, 7, 8, 9 and 10, was emphatically denied by them, but as I have already pointed out to you, there was a legitimate ground of apprehension of an attack by the Sisha people who had collected there."
Again, at p. 157 of the paper-book the Sessions Judge made the following observation:
"If you accept this view and hold that Bhupati exceeded the right given to him by law, he will not then be entitled to the protection of the right of private defence, and you will find him guilty of the offence with which he has been charged."
The above passages would show that the Judge asked the Jury to take it for granted that Bhupati had a right of private defence and the only question which he left for the determination of the Jury was whether by firing the gun-shots Bhupati had exceeded the right. In view of the evidence, the assumption that Bhupati had some right of private defence made by the learned Judge is a serious misdirection.
It is clear from the above quoted passages that the charge of the Sessions Judge contains serious and positive misdirections on a very material point and these misdirections must have misled the Jury which resulted in an erroneous verdict. If the Judge had placed before the Jury the entire evidence adduced in the Sessions Court without a dogmatic assumption that the Sisha people were the aggressors, the verdict of the Jury might have been completely different.
Mr. Biswas appearing on behalf of the respondents contended that the High Court should not disregard or set aside the unanimous verdict of the Jury unless it is of opinion that the is perverse and manifestly wrong or against the weight of evidence. In support of this contention he cited many cases before us, the most important of which is the case of Ramaungrah Singh v. The King-Emperor, (L.R. 73 IA 174). The cases cited by Mr. Biswas were however cases u/s 307 Cr. P.C., which empowers the Sessions Judge to refer a case to the High Court if he disagrees with the verdict of the Jury. It has been laid down in the case of Ramanugrah Singh that if the High Court considers that the verdict of the Jury is perverse in the sense of being unreasonable or manifestly wrong or against the weight of evidence, then the reference is justified and the ends of justice require that the verdict should be disregarded; the requirement of the ends of justice must be the determining factor both for the Sessions Judge in making a reference and for the High Court in disposing of it. In the present case, we are concerned with an appeal against a judgment passed by the Sessions Judge in a Jury trial on the basis of a unanimous verdict of the Jury. The question of alteration or reversal of the verdict on which the judgment is based must be governed by Section 423(2), Cr. P.C., which runs as follows:
"Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the Jury of the law as laid down by him."
No question of misunderstanding on the part of the Jury of the law arises in the present case and so the only question relevant for our consideration is whether the erroneous verdict has been returned owing to a misdirection by the Sessions Judge. While, therefore, a misdirection by the Judge plays an important role in an appeal arising out of a Jury trial, it is a matter of little moment in a reference u/s 307, Cr. P.C., where the chief concern of the High Court is to examine the reasonableness of the verdict in order to ascertain whether the reference is justified for the ends of justice. There is, thus some fundamental difference between Sections 307 and 423(2), Cr. P.C., regarding the question of reversal of the verdict of the Jury.
There is no doubt in my mind that in the present case the misdirections pointed out above have caused an erroneous verdict. The misdirections have also occasioned a failure of justice because there appears to be quite a volume of evidence of eye-witnesses to the incident which no body of reasonable mind could have brushed aside, if properly directed.
I am, therefore, of opinion that the verdict of the Jury cannot stand, and the order of acquittal which is based upon this verdict must also be set aside. I do not, however, think that it would be proper in the particular circumstances of this case to enter into evidence in details and to pronounce our judgment on the merits. That would seem to be usurping the function of the Jury. The respondents, in my opinion, should have the benefit of a fresh trial by Jury.
In the result the appeal is allowed and the verdict of the Jury and also the order of acquittal passed by the learned Sessions Judge are hereby set aside. The respondents will again be tried by the learned Sessions Judge of Nadia on the charges framed against them by a fresh set of jurors. The respondents will surrender in the Sessions Court within fourteen days of the arrival of the records in that Court and on their failure to surrender, the learned Sessions Judge will take such steps as he deems necessary for production of the respondents in his Court. The new trial will be held as expeditiously as possible.
Mitter, J.
I agree.