Ram Labhaya, J.
1. This is an appeal from the order of the Additional Sessions Judge, U A. D., dated 26-3-1950, by which two appellants Tambak Singh and Gopi Singh (nos. 1 & 2) were convicted under Section 304, Part II and sentenced each to rigorous imprisonment for 4 years. Appellant 3, Chourajit Singh, was convicted under Section 325, Penal Code, and sentenced to undergo rigorous imprisonment for 2 years. Tambak Singh and Gopi Singh were found responsible for causing the death of Montaz Ali. Chourajit Singh was found to have caused grievous hurt voluatarily to Monjit Ali.
2. The occurrence, which resulted in the death of Montaz Ali and injuries to three others, namely, Monjir Ali, Ayub Ali and Mayur Ali, took place at about 8/9 a. m within the limits of mouza Nityanandapur on 2 5-1949.
3. A written report was presented by Amir Ali. a brother of Montaz Ali, deceased, about this occurrence to the Officer-in-charge of Haila-kandi P. S. at 4 P. M. on that date. The report was written by Prahir Chandra Chakravarty (p. W. 8), clerk of Babu Ganga Charan Biswas, a plunder of Hailakandi. It was written in accordance with the directions given by Babu Ganga Charan Biswas who was present when Prabir Chandra Chakravarty wrote it.
4. P, W. 8, Prabir Chandra Chakravarty, deposed that the report, Ex. 1, was copied from a draft which he had prepared according to facts stated by Amir Ali.
5. According to this report, Montaz Ali, deceased, was ploughing in his filed with his son Monjir, his nephew Ayub Ali and his cousin Mayur Ali (son of an maternal uncle) at about 8/9 A, M. on the date of occurrence. They started dressing the aile (boundary embankment) to the western side of the field. The accused, 12 in number, including the present appellants formed an unlawful assembly and came to the place of occurrence. Five accused, namely, Tambak Singh, Benimadhab Singh, Gopi Singh, Dhola Singh and Kamini Singh, started beating Montaz Ali deceased. They caused injuries over his head, neck and other parts of his body. The injuries were described as grievous. Gopi Singh and Kameswar Singh gave lathi blows to Ayub Ali on his head and other parts of his body and Kamini Singh injured him (Ayub Ali) with a lenga (spear) on his face. Monjir Ali was assaulted by Dhola Singh, Benimadhab Singh, Babadhan Singh and Chouro Singh They caused him injuries on his head and other parts of his body with lathis. Tambak Singh and Gopi Singh and other accused caused injuries to Mayur Ali. The field which they ploughed, according to the schedule attached to the report, was contiguous to Dag No. 227 of patta No. 53 and its western boundary was about 18 to 20 nals in length. On the other side of this boundary, that is towards its east, the lands belonging to some of the accused, twenty-nine persons were mentioned as witnesses of the occurrence.
6. After the usual investigation by the police, 12 accused including the 8 appellants were sent up to the Court of the Magistrate, 1st Class, Hailakandi, for inquiry. He discharged Jagat Singh, accused, and committed 11 others to the Court of Session for standing their trial. All the 11 accused were charged under Section 147, Penal Code. Gopi Singh and Tambak Singh were also charged under Section 304, part II, Penal Code, for committing culpable homicide not amounting to murder by causing the death of Montaz Ali, deceased, and Chourajit Singh under Section 325, Penal Code, for causing grievous hurt to Monjir Ali.
7. At the trial 18 witnesses were examined on behalf of the prosecution. Five out of these were official witnesses. Two others, who were not eye witnesses, are p. w. 8 the scribe of the F. I. R, and Mr. Rohini Kumar Choudhury, scribe of the two sale deeds Exs. 8 and 9, The rest of the 11 witnesses claimed to be eye witnesses. Some of them witnessed only a part of the occurrence towards the end.
8. After considering the medical report regarding injuries to various persons involved in the affair, the judgment proceeds.] Ayub Alt is the principal witness from the side of the prosecution, His statement embodies the prosecution version given at the trial. He deposed that he was at a distance of about GO nals from the place of occurrence towards its west when the deceased and other prosecution witnesses were injured. According to him, Monjir Ali and Ayub Ali (Montaz's son and nephew) were ploughing while Montaz Ali was dressing the western aile of the land. He saw 12 or 13 persona coming out of the house of accused Dhola Singh. All had lathis in their hands except accused Kamini Singh who bad a lenja in his hand. All came towards Montaz who was still dressing the aile. As they reached near the field, Dhola Singh asked Montaz Ali to desist from ploughing the land any more and to stop dressing the aile but without waiting for compliance he ordered his companions to kill Montaz Ali. On this Gopi Singh gave a lathi blow on the head of Montaz. Tambak followed suit and also gave a lathi blow on his head Montaz (deceased) reeled when a third lathi blow was given on his head by Gopi Singh, and collapsed. Gopi Singh and Tambak Singh continued striking him even when ha (Montaz) was lying prostrate on the ground. The rest of the party surrounded Monjir and Ayub Ali, Chourajit Singh gave a lathi blow on the right thumb of Monjir Ali and caused its fracture. Dhola Singh also participated in striking Monjir Ali with his lathi. Others also joined in the assault. Kamini Singh injured Ayub All on his face with his lenja. Others, whose names were not mentioned were also said to have joined in giving him a beating. When all throe had fallen down, Mayur Ali came to the scene of occurrence. He asked the accused to stop beating the dying men. Gopi Singh gave him a lathi blow on his head. Tambak Singh also did the same. He also fell down. More people then came to the place of occurrence. Mayur Ali was taken away by his father. The three other injured (Montaz, Monjir and Ayub) were taken to the house of Montaz from where they were taken first to the court compound at Hailkandi and then removed to the hospital.
9. He claimed that the land where the occurrence took place belonged to his father Munshi Meah. He purchased it from Rammohan, uncle of Dhola Singh, accused, by a registered deed, Ex. 2, Munshi Meah sold the land to his five sons including the witness by Ex 8. He himself transferred his share to his wife. Montaz's share according to him was about one keyar and a half. He was in possession of it and also in possession of another half keyar belonging to the wife of the witness (p. w. l). The scene of occurrence was said to be inside these two keyars. On the west of these two keyars was the land of Tambak Singh, Gopi Singh and Chourajit Singh. On the north and south the land was in possession of Montaz Ali. On the east was Nitai Singh's culturable land.
10. According to these boundaries the scene of occurrence would be the piece of land between fields H. G. F. E. of dag no. 227 and E. G. D. of dag No. 421, vide Ex, 10, a plan of the scene of occurrence, It is in this plot that foot. prints were found at point A.
11. The cadestral dag No. 229 was split up into 4 or 5 dags at the time of the re-settle. meat. Amir Ali could not say what part of the area measuring 7 keyars purchased by his father-was included in dag No. 421 and how much of it came in dag no. 227 at the time of re-settlemeat. He was definite that the southern boundary of the land purchased by his father was contiguous dag nos. 234 and 235. Witnesses who claimed to have seen the occurrence from the beginning supported Amir Ali's version of the case given at the trial.
12. Defence version is contained in the statement of Tambok Singh, accused. He claimed that the disputed land was his and was in the possession of Chourajit Singh accused. It was being ploughed by him and Chourajit Singh both. It was then that Amir Ali, Montaz Ali, Arnjad Ali, Huramena Mashai, Manjir, Basan and many other persons, about 80/90 in number, came to that land and surrounded him and his brother Chourajit Singh. Montaz Ali threatened to strike him with a lenja that he was carrying. He took to his heels. Montaz hit him with the spear on his back and he fell down as the result of the blow. Kula Singh came from his own land and intervened after Amir Ali had struck Chourajit Singh with a lenja. At this stage, Benimadhab Singh, Gopi Singh and others came and took him away. Chourajit Singh stated that his statement was the same as that of Tambak Singh. Gopi Singh stated that Tambak Singh and Chourajit Singh were ploughing their land. They were attacked. He saw the occurrence from a distance.
13. Gopi Singh also lodged an ejahar on 3. 5 1949. This was proved by C. w. 2 (Srish Chandra Chakravarty). It was marked Ex. 11.
14. The accused did not examine any witness in support of their defence version. The existence of injuries on the persona of Tambak Singh and Chourajit Singh was proved by the statement of C. W. 1, Assistant Surgeon, Haila-kandi, who examined them on 4-5-1949 at 10 a m.
15. The Common object of the unlawful assembly, according to the statement contained in the charge, was to dispossess Montaz Ali forcibly of the land in his possession. Gopi Singh, Tambak Singh and Chourajit Singh were charged also for their individual acts for which, according to the prosecution, others could not be held responsible. After considering the evidence, the learned trial Judge came to the conclusion that the prosecution had failed to establish that the party of the accused wanted to dispossess Montaz Ali of the land in his possession. The unlawful object attributed to it was not substantiated according to the learned trial Judge. He did not rely on the prosecution evidence given at the trial on this point, as, in his opinion, it was belied by the statement contained in the F.I.R. Placing his reliance mainly on the statement of p. w. 7, Masan Meab, he found that the quarrel arose from an attempt on the part on Montaz Ali at putting up the western aile of his land somewhere inside the land in possession of accused Choarajit Singh. His conclusion, therefore, was that the object of the accused was not to dispossess Montaz from the 2 keyars of land as alleged by the prosecution witnesses at the trial. Having arrived at the finding that the aile (boundary embankment) was being shifted towards Chourajit's land, be held that the accused were justified in protesting and even in preventing the attempted trespass on the part of the deceased. They could not, therefore, be held to be members of an unlawful assembly. He further found that as the assembly was not unlawful and therefore there was no rioting in the legal sense of the term, those who participated in the fight were responsible for their own individual acts, and all should not be held guilty of rioting. His reconstruation of the case after a consideration of the prosecution evidence was that Chourajit Singh and his brother Tambak Singh were on their land when deceased (Montaz Ali) was putting up the western boundary, Monjir Ali and Ayub Ali were ploughing the land of Montaz Ali. Amir Ali (P. W. l) was also present with Mayur Ali in the neighbourhood. Chourajit and his brother protested against the deceased Montaz Ali putting up the boundary where it was being put. Altercation followed. This attracted pome more members of the accused party. They also joined in the protest. The altercation then developed into a fight.
16. The learned Judge was not satisfied that Montaz was in possession of the two keyars of land, which according to the prosecution, was in his possession.
17. As regards the assault on Montaz Ali, the learned Judge relied on the evidence given at the trial and found that Gopi Singh gave two lathi blows on the head of the deceased and Tambak Singh gave one blow. He, therefore, found both responsible for causing his death in spite of the fact that according to the F.I.R. five persona assaulted him and caused the injuries which were found on his person, and, it was not stated who was responsible for the injuries on the head which caused his death. But in his view they exceeded the right of private defence as the mere act of trespass would not justify an assault resulting in death. The punctured wound on the back of Tambak Singh caused by a lenja and also a simple injury found on Chourajit Singh also did not afford any justification for causing death in his view. He held that even if the accused had no intention to cause the death of Montaz Ali, they must have known that the blows on the head would be likely to cause his death which occurred in consequence of these blows. He, therefore, convicted them under Section 304, Part II, Penal Code. In this view two out of the assessors agreed with him.
18. Relying also on the prosecution evidence given at the trial, he found Chourajit Singh. responsible for the grievous injury caused to Mayur Ali and convicted him under Section 325, Penal Code.
19. The learned Counsel for the appellants has claimed that the party of the accused acted in the exercise of their right of private defence of the person and the property both. He argues that the right and the privilege given to them by law was not exceeded. Their cases is fully covered by the exemption and they were entitled to acquittal and in any case the responsibility of causing death of Montaz could not be fixed on them. As regards Chourajit Singh, he urged that the charge that he caused grievous hurt to Monjir Ali was not brought home to him.
20. The learned Government Advocate assailed the correctness of the finding arrived at by the learned Judge that the right of private defence bad been exceeded. He urged that accused had no right of private defence either of the person or of the property and Gopi Singh and Tambak Singh, appellants, were rightly convicted under Section 804, part. II and Chourajit Singh under Section 325, Penal Code.
21. The first question is whether the appellants had the right of private defence of the person or of the property. The finding arrived at by the learned trial Judge is that the western aile was bring shifted into the land of Chourajit Singh. This finding rests on the statement of Masan Meah. It appears to me that the learned Judge had read more into this statement than what it contains. Masan never stated that the western aile was being put up or was being shifted into the lands of Chourajit Singh on any other accused. He stated that Monjir and Ayub Ali were ploughing in a certain plot. Montaz Ali, deceased, was dressing the aile of that land. He saw then 10 or 12 persona coming from the house of Dhola Singh. They came near Montaz Ali; asked as to why he was putting up the aile 'wrongly on that land'. Montaz Ali said that it being his land he was within his right in putting up the aile there Dhola Singh then ordered his companions to kill Montaz. He also stated that the land on which the occurrence took place was all along in the possession of deceased Montaz Ali and that he had been seeing it cultivated by him since he attained the age of discretion. He did not concede or admit that the boundary was actually being put on the land in possession of any of the accused. He merely repeated the allegations of the parties. The accused said that the boundary was being put in a wrong place. Montaz Ali, deceased, repudiated this allegation and claimed that he was putting up the aile on his own land. Which of the two statements is correct is a question in the case. If this witness is to be believed, the aile was on the land which was being ploughed and that land, according to the witness, had been in possession of Montaz Ali. In any case it is not possible to read into this statement an admission that the aile was being put in the land of Chourajit Singh.
22. It is true that Masan Meah did not clearly state that the land towards the cast of the disputed aile belonged to Montaz Ali. But so far as Montaz Ali is concerned, the statement is that he claimed that he was putting up the aile on his own land. This would necessarily imply that the land on the east of the aile was claimed by him as his own. Ayub and other prosecution witnesses did not reproduce this conversation and they stated that the objection from the side of the accused was not only to the dressing of the aile but also to the ploughing in the land towards the east of the aile.
23. It appears that the dispute was not only about the aile on the narrow strip of land between dag no. 227 on the west and dag No. 421 on the east. This is apparent from the statement of Tambak Singh, accused. He did not state at the trial that the western aile of Montaz Ali's land was being put in a wrong place towards Chourajit Singh's land or that it was being shifted into that land. He said that the disputed land was his and was in the possession of Chourajit Singh. By the disputed land he could only mean the two keyars of land between dag No. 227 and dag No 421, to which the prosecution were laying claim. He further stated that it was being cultivated by him and Chourajit Singh when Amir A1i and Montaz Ali and many others, about 80/90, came to that land and surrounded them and threatened to strike.
There is no suggestion in the defence version of the dispute arising from the shifting of the boundary line. It was evidently about the possession of the disputed land which measures about 2 keyars of land. Both sides claimed title and possession.
24. Prosecution evidence does not establish that the 7 keyara of land purchased by the father of the deceased included the disputed land. No documentary evidence of a conclusive character has been produced to show which portion of the old dag No. 229 was sold to the father of the deceased. At the re-settlement) the old dag was Split up into several dags. The situation of the 7 keyars could not be discovered without a survey at the spot as held by the learned Additional Judge. Toe prosecution witnesses haves claimed that the disputed land was all along in the possession of the decease. Excepting P. w. 5, F, w. 10 and Ashad Ali, others are all interested in the controversy. They are related to each other and some of them are accused in the cross case arising from the report of Tambak Singh. The three witnesses who have got no apparent connection with the deceased or his party also cannot be regarded as disinterested. They have also supported a version at the trial which is opposed to the F. I. R which again was written by a pleader's clerk under the direction of Amir Ali and was handed over at the Police Station by him. The dispute was between a party of Muslims on one side and a party of Manipuri Hindus on the other. The support that the apparently disinterested witnesses gave to the prosecution case, in these circumstances, is intelligible. Their testimony cannot be adjudged as wholly disinterested. The claim that deceased was in possession of the disputed land measuring 3 keyars of land has not been made out. But the accused too have not been able to establish that they had the possession of these 2 keyars. Their version is not supported by any evidence. Masan Meah p w. 7, does not support their version. They themselves admitted that the dispute was about 2 keyars of land. It is apparent, therefore, that according to both the versions the dispute was with respect to 2 keyars and not about the correct situation of the aile. It is very likely that the aile was being dressed as deposed to by p. w. 7. This, however, was moat probably a symbolic) act involving the assertion of a claim that Montaz Ali was in possession of the land towards the east of the aile. This claim was disputed as has been clearly stated by the accused. In this view of the matter it could not be said that the accused were merely resisting an attempt on tha part of Montaz to shift the aile on the side of Chourajit Singh's land. The dispute was over the possession of the land. This dispute led to the fight in which Montaz Ali and three others from the prosecution aide received injuries. Montaz Ali died. Monjir Ali had a grievous hurt and there were other several simple injuries on the persons of Monjir Ali, Ayub Ali and Mayur Ali. Two minor injuries were caused to two out of the accused.
25. The version put forward by the defence that 80/90 persons came when the land in dispute was being actually ploughed by Tambak Singh and Chourajit Singh presumably to dispossess them has no direct or circumstantial support. No witnesses were examined in support of it. It is extremely improbable that 80 or 90 persons should have come, some of them with lenjas and the result would have been that one of them should have died, three others should have received injuries and the two accused would have escaped with only two minor injuries. If there had been some truth in this version, the two accused would have been reduced to pulp. If such a big crowd came, the result of the fighting would have been very different. The appellants have not tried to explain who caused Montaz'a death and how other prosecution witnesses came by their injuries. This is a very serious omission and shows conclusively that the defence version if true to any extent is at the most a half truth, which is as dangerous as a lie. It is apparent that the accused are not disclosing the part played by them. Their claim that they were in possession of the disputed plot has got no support from any quarter. It is also not proved that the assault was commenced by Montaz or his companions, There is no evidence from the side of the accused that the minor injuries to the two accused were caused first and Montaz was hit later on in the exercise of the right of private defence of the person or of property The burden of proving the exception relied on is on the accused and in my view they have failed to discharge this burden, for on the material available on the record it is not possible to hold that conditions existed which justified the accused in resorting to violence in the exercise of their right of private defence of the person or of property. The only safe conclusion that can be arrived at on available evidence, both direct and circumstantial, is that there was a dispute over the possession of land and this led to an altercation which developed into a fight. There was no premeditation between those who participated in the fight. There was thus no unlawful assembly nor was there any common object or intention. Each individual could, therefore, be held responsible only for his own acts if they are ascertainable.
26. Gopi Singh and Tambak Singh have been fixed with the responsibility for causing the death of Montaz Ali. According to the F.I.R. no lees than five persons assaulted and caused him injuries. At that stage no attempt was made to fix responsibility for the head injuries on any accused. The report as said above was made in writing and after obtaining legal advice. Whatever, therefore, was said was celiberate and the result of forethought It lacked the attribute of spontaneity. If this version could not be adhered to and at the trial the responsibility for all injuries on the deceased had to be thrown on the shoulders of the two accused, it becomes difficult to find out where the truth is. There are two versions from the prosecution side. The witnesses are interested. If only two persona caused injuries to Montaz, others were falsely implicated. And if the statement made in the F.I.R. was correct, the attempt to throw the entire responsibility for all injuries on the two accused could only be explained by a desire to wreck vengeance for the death of Montaz Ali, which occurred after the making of the F.I.R. At the time of the F. I, R. five persons were charged with causing grievous injuries to him. At the trial, two persona were made responsible for causing his death. Altogether 12 persons participated in the occurrence according to the prosecution version. It is not possible, in these circumstances, to find out the truth in the absence of any disinterested and reliable evidence. In any case it cannot be said that the charge of causing death has been brought borne to the two appellants. Even if these two alone participated in the assault on the deceased, they could not be both convicted under Section 304 unless circumstances of the case attracted the application of Section 34, Penal Code. The learned Govt. Advocate concedes that Section 34 cannot be applied. In these circumstances it is not possible even between these two to find out whose blow or blows proved fatal. The convictions of these two under Section 304, therefore, are not sustainable.
27. Similarly, the conviction of Chourajit Singh under Section 326, Penal Code, cannot be maintained. He was mentioned as one of the assailants of Monjir in the F.I.R. But the grievous hurt found on the person of Monjir was rot attributed to him. If a large number of persons participated in a sudden fight arising from a land dispute it would be really difficult for any one to state that any particular injury was caused by a particular person. It is for this reason that groups of accused were made responsible for injuries to particular persons from the prosecution side. Later on attempts wore made to saddle more important or perhaps more inconvenient persons out of the accused with responsibility for serious offences. The attempt is easily attributable to a desire to wreck vengeance or to vindictiveness.
28. For reasons given above, even the charge under Section 325, Penal Code, against Chourajit Singh cannot be said to have been substantiated. The convictions of all the three appellants for their respective offences must, therefore, be quashed. The appeal is allowed, the convictions of the appellants under Section 304, part II, Penal Code and S 325, Penal Code are set aside. Tambak Singh and Gopi Singh shall be released forthwith. The bail bond of Chourajit Singh shall stand cancelled.
29. I agree.