B.N. Sarma, J.
1. The 10 appellants have been convicted by the Sessions Judge, Goalpara under Sections 148. 302/149 and 323/149 of the I. P. C. and each of them has been sentenced to rigorous imprisonment for life under Sections 320/149 and to rigorous imprisonment for one month under each of the other two sections. Being aggrieved by the order of the learned Sessions Judge they have now come up in appeal.
2. The prosecution case in brief was that on 28-7-1968 at about 6 A. M. the accused-appellants formed an unlawful assembly being armed with various deadly weapons with the common object of committing trespass into the land fall-ins in the share of P. W. 1 Abdul Gani and others situated at village Mowartari within Bilasipara Police Station and in prosecution of the said common object caused the death of two persons, namely, Raijuddin and Rustom and caused injuries to some other persons including P. W. 9 Shah Alam and P. W. 10 Ismail Sheikh while they came to protest against the actions of the accused. After the occurrence P. W. 1 Abdul Gani lodged an ejahar at the Bilasipara Police Station. Police registered a case and on completion of investigation sent up all the '10 appellants under Sections 148, 323/149 and 302/149 of the I. P. C. they were later committed to the Court of Session by the Additional District Magistrate (J). Dhubri at the conclusion of preliminary enquiry.
3. All the accused pleaded not guilty to the charges under the aforesaid sections framed against them. Their defence was that the land in question is in possession of accused Kasimuddin since Ions before and that on the date of occurrence while his sons Osman and Abdul Awal and his son-in-law Habibur Rahman were ploughing the land the complainant party, namely P. W. 1 Abdul Gani, deceased Raijuddin, deceased Rustom. P. W. 9 Shah Alam, P. W. 10 Ismail Shaikh and others came and resisted and in doing so, they assaulted them causing injuries. It was alleged that in the melee the two deceased persons fell in front of some ploughs and received the injuries from the blades of ploughs. The presence of the other accused persons at the time of occurrence was denied
4. The prosecution examined as many as 14 witnesses in support of its case including two Police Officers and two Doctors. The defence also examined two witnesses in support of its case. Besides the P. Ws. and D. Ws. one witness was examined as a Court witness. On a consideration of the evidence of the witnesses examined in the case the learned Sessions Judge came to the finding that the land on which the occurrence took place was in possession of the complainant party at the time of occurrence and that the accused persons were members of an unlawful assembly with the common object of committing trespass into the said land and in prosecution of that common object, some of the members of the unlawful assembly caused the death of Raijuddin and Rustom and also caused injuries to P. W. Shah Alam and P. W. Ismail Sheikh. With these findings the learned Sessions Judge held that all the accused-appellants were guilty of the offences they were charged with and accordingly convicted and sentenced them thereunder, as stated above.
5. Mr. K. M. Lahiri, the learned Counsel appearing for the appellants contended before us that the above findings of the learned Sessions Judee are not warranted by the evidence on record and that all the appellants should have been acquitted of the charges framed against them.
6. The crucial point that falls for determination in the appeal is who was in actual possession of the land on which the occurrence took place whether any of the members of the complainant party or the accused. If this question is answered against the prosecution, the entire edifice of its case will fall. In that case even if any of the accused appellants caused the death of Raijuddin and Rustom and injuries to others, the other accused appellants cannot be constructively held guilty for the same, with the aid of Section 149 of the I. P. C. It will have to be seen, in that case, if such accused who caused the death or the injuries had any occasion to exercise the right of private defence and if so, whether such right was exceeded.
7. P. W. 1 Abdul Gani who was the informant in the case said that the land belongs to Kasimuddin and Alek Mohd. but used to be occupied by the sons of Kasimuddin namely, Sultan, Raijuddin (deceased), Bakkar Khobad Ali and Majibur. At the same time it was said that Raijuddin gave the land cm Adhi terms to deceased Rustom and his two brothers, namely. Shah Alam (P. W. 9) and Ismail (P. W. 10), Neither Kasimuddin nor any of his sons nor Alek Mohd. was examined by the prosecution and no explanation was given for their non-examination. In the ejahar Ext. I lodged by P. W. 1 Abdul Gani, it was not mentioned who was in possession of the land. It was simply stated that the land falls in their (of Abdul Gani and others) share. In course of hip evidence P. W. 1 Abdul Gani did not claim any title or possession over the land. The next witness who save evidence about possession is P. W. 5 Towajuddin Mulla. He stated that the land was in occupation of Ismail Ali. P. W. 6 Hussain Ali Munshi said that formerly the land was in possession of Kale Mohd. and after his death it is now in possession of Raijuddin, Ismail. Abdul Gani and others.
It was admitted by him that in the year preceding the occurrence accused Kasimuddin crew seedling on a part of this land. In the year of occurrence, he said, the land was lying fallow. P. W. 8 Abdul Haque could not even say where the occurrence took place. According to P. W. 9 the land belongs to 5 sons of Kasimuddin. 7 sons of Alek Mohd. and accused Kasimuddin and the final Khatian stands in the names of these 13 persons. He further stated that he and his 2 brothers including deceased Rustom possessed the land as Adhiars under those 13 persons. It was also stated by him that accused Kasimuddin claimed the land to be his. P. W. 10 Ismail Shaikh also said that the land belongs to those 13 persons, but at the same time he said that he and his brothers Shah Alam and Rustom (deceased) possessed the land as Adhiars under Raijuddin. He however stated that about 2 years back i.e.. at or about the time of occurrence he allowed accused Kasimuddin to use a cart of the land for growing seedling. According to P. W. 12 Amir Hussain the land belonged to deceased Raijuddin and it was possessed by deceased Rustom and his 2 brothers as Adhiars under Raijuddin.
8. These are the witnesses for the prosecution to give evidence about possession over the disputed land. It is seen that they are discrepant in their evidence on material particulars. P. W. 1 Abdul Gani in his zeal to show that the accused has nothing to do with the land went to the extent by denying his relationship with accused Kasimuddin but it was admitted by other witnesses that accused Kasimuddin is a brother of P. W. 1 Abdul Gani's father. P. W. 9 admitted that accused Kasimuddin is one of the co-sharers of the land. It is also seen from-the evidence of P. Ws. 6, 9 and 10 that, accused Kasimuddin actually possessed the land before the occurrence.
9. C. W. 1 Sohrab Ali is a relation of both the Parties and he is said to be one of the co-sharers of the land. He was cited as a prosecution witness in the charge-sheet but the prosecution withheld him from the witness box during the trial for obvious reasons. He supported the defence case that in a partition of the family properties the disputed land fell to the share of accused Kasimuddin and that accordingly Kasimuddin has been in possession of the same since 10/12 years back. The learned Sessions Judee disbelieved his evidence as he was said to have filed an affidavit in a proceeding under Section 145 Cr. P. C. relating to the disputed land drawn UP after the occurrence supporting the possession of the complainant party. The witness denied this fact. Neither the affidavit of the C. W. nor the final order of the Magistrate in the said proceeding was proved by the prosecution. Under the circumstances there is no cogent reason to disbelieve the evidence of C. W. Sohrab Ali. Then there is the evidence of D. W. Tomezuddin Haji who is an old man of 70 years. He fully supported the defence case that the land in dispute was in possession of accused Kasimuddin.
10. On a consideration of the evidence of the witnesses mentioned above we find that the prosecution failed to prove beyond any doubt that the land in question was in possession of deceased Rustom and his two brothers as alleged by, the prosecution during the trial. It may be mentioned here that in the charge framed against the accused it was stated that the land was in Possession of Abdul Gani and others. In view of the evidence of C. .W. 1 and D. W. 2 which received partial corroboration from the evidence of some of the P. Ws.. namely, P. Ws. 6. 9 and 10, it is difficult to brush aside the defence case as false. The defence need not prove its case, like the prosecution, beyond reasonable doubt. It is sufficient if the defence succeeds in showing that its case is a probable one. In the instant case the defence has succeeded to that extent. That being the position the very common object of the alleged unlawful assembly vanishes. The charge under Section 148 of the I. P. C. must therefore fail and for the same reason the charges under Sections 302 and 323 read with Section 149 also must fail.
11. It has now got to be seen whether there is sufficient evidence to hold any of the appellants to be guilty of any offence for causing the death of Raijuddin and Rustom or injuries to P. Ws. 9 and 10. without the aid of Section 149. I. P. C.
12. P. W. 15 Doctor Kandarpa Chaliha who held the post-mortem examination on the dead bodies of Raijuddin and Rustom, said that he found on the dead body of Raijuddin one incised wound on the left axilla 5'X4'X3' with fracture of the left clavicle cutting the 3rd and 4th costal rites on the left side. The left lung was found cut in the middle 1'X1'X2'. On the dead body of Rustom he found one stab wound on the right side of the chest measuring 2'X 1'X8' cutting the 7th and 8th ribs on the right side. In his opinion the injuries found on both these dead bodies were ante-mortem and caused by sharp weapons. He also opined that death of these two persons took place due to shock and haemorrhage resulting from the injuries. In view of the evidence of P. W. 15 there cannot be any doubt that some person or persons caused those injuries to deceased Raijuddin and Rustom. The defence case that they fell before some ploughs during the occurrence and received the injuries from the blades of such ploughs has got no less to stand upon and can be rejected at once. It is also sufficiently proved by the evidence of P. W. 2 Doctor N. C. Roy that P. W. 9 Shah Alam and P. W. 10 Ismail received some simple injuries.
13. P. W. 1 Abdul Gani, P. W. 7 Mofizuddin. P. W. 9 Shah Alam and P. W. 10 Ismail Sheikh stated in their evidence that they saw accused Matiur stabbing deceased Rustom and accused Abdul Khalek stabbing Raijuddin. Besides them, P. W. 11 Mustt. Wahiza Khatoon and P. W. 12 Ameer Hussain also said that they saw accused Abdul Khalek stabbing Raijuddin on his chest. Similarly, P. W. 5 Towajuddin Mulla also stated that he saw accused Matiur stabbing Rustom on his belly. We do not find any reason to disbelieve their evidence. The evidence of these witnesses proves beyond any doubt that accused Matiur caused the death of Rustom and Abdul Khalek caused the death of Raijuddin by inflicting the injuries, as described by P. W. 15,
14. We are now left with the question as to whether they had any occasion to exercise the right of private defence of Persons or property and if so whether they exceeded such right by causing the death of Raijuddin and Rustom.
15. It is an admitted fact that the occurrence took place when the two deceased persons and others came to give resistance to the accused when they were ploughing on the land. It is also seen from the evidence of P. W. 6 that both Raijuddin and Rustom as well as P. W. 10 Ismail carried lathis in their hands while going to resist the accused in ploughing on the land. It further transpires from the evidence of D. W. 1 Doctor Brojendra Kumar Saha, Medical Officer of the Jail Hospital at Dhubri that 3 of the accused-appellants, namely. Osman Abdul Awal and Habibur Rahman had some simple injuries on their persons when they were admitted into the jail. There are good reasons to believe that they received those injuries during the occurrence. The prosecution has not offered any explanation as to how they came by those iniuries.
16. In course of evidence during the trial the prosecution witnesses said that the accused-appellants assaulted the complainant party when they were receding from the land in dispute at the intervention of some persons. But the ejahar Ext. I belies this story. We are unable to place any reliance on the evidence of the P. Ws. in this regard. There is no doubt that they introduced this story in order to show that the accused-appellants had no right of private defence at the time they assaulted the members of the complainant party, even if they were in possession of the land. Considering the facts and circumstances of the case, as discussed above, we have no hesitation to hold that the appellants had the occasion to exercise the right of private defence both of person and property.
17. However from the evidence on record we are unable to hold that this right of private defence extended to the voluntary causing of death. Although it is in evidence that the two deceased persons carried lathis in their hands none on the side of the accused sustained any serious injury and there is no scope to hold that they or any other accused had any reasonable apprehension of grievous injuries or death from the two deceased if the right of private defence was not exercised to the extent of causing their death. We accordingly hold that appellant No. 3 Abdul Khalek and appellant No. 5 Matiur Rahman exceeded the right of private defence by causing the death of Raijuddin and Rustom. respectively. We are also satisfied from the nature and position of the injuries sustained by Raijuddin and Rustom that Abdul Khalek and Matiur caused those injuries with the intention of causing their death. Even if any of the accused persons caused injuries to P. W. 9 and P.. W. 10 such accused persons were within their rights as the complainant Party were the aggressors and as those are of simple nature.
18. In the result we set aside the conviction and sentence of all the appellants under Sections 148, 302/149 and 323/149. I. P. C. . We, however, convict appellant. No,. 3 Abdul Khalek and appellant No. 5 Matiur Rahman under Section 304 of the I. P. C. for causing the death of Raijuddin and Rustom, respectively, exceeding the right of private defence and we sentence each of them to rigorous imprisonment for 10 years under Part I of the said section. The other 2 appellants are acquitted of all the charges and we direct that they be set at liberty forthwith. The appeal is partly allowed.
D.M. Sen, J.
19. I agree.