1. This is a reference made by the learned Sessions Judge, L. A, D., under Section 307, Criminal P.C., in the case of one Diuanath Das and 8 others who were tried by the learned Judge under Sections 148, 302 read with Sections 34, 324 and 323,1, P.C. with the aid of a Jury which unanimously found the accused not guilty. The learned Sessions Judge declined to accept the verdict of the Jury and has made this reference in the interests of justice.
2. The case of the prosecution is that a certain piece of land comprising some 32 or 35 bighas was reclaimed by one Bilu, Loro, Malia, Bhatia and Tithi Sutradhar 3 or 4 years before the occurrence which is said to have taken place in the afternoon of 30-11-1948; they took possession of the land and divided it amongst them. selves; on the day in question, they were cutting paddy grown by them in their respective plots when the 9 accused persons, along with some SO or 30 others, came armed with deadly weapons, trespassed upon the land in order to take forcible possession of it and made an attack upon them; in the course of the attack, accused Dinanath, Ranga, Sarbeswar and Gabru killed one Loro and the remaining accused caused hurt to Bilu, Bhati Maya and Malia. The F. I. R, was lodged at the Police Station within 7 hours of the occurrence by the injured Malia. The Police investigated the case and sent up the 9 accused persona for trial.
2a. The learned Judge points out in the reference that the main question for consideration in the case was as to which party was in actual possession of the land, and as he has himself come to the conclusion that the persons in actual possession were the complainant and his party, he has regarded the verdict of the Jury as unsustainable. But he his also stated:
The main point for consideration was whether the complainant party had been in actual possession of the land. They had no patta for the land but they claimed to have been in possession of the land since the time they reclaimed it which was about three or four years before the date of occurrence of this case.
The learned Judge has then set out the oral evidence of the prosecution witnesses which, according to him, establishes the fact that the complainant's party was in possession of the disputed land. The learned Judge observes:
There was nothing to disbelieve the evidence of these witnesses about the actual possession of the land by these claimants.
We think the learned Judge is in error in thinking that there was nothing to discredit the evidence of these witnesses as to actual possession. Indeed the documentary evidence led in the case tends to show that the accused persons must be regarded as being in possession right up to the time when the occurrence took place. It is in evidence that one Kambal Gaonbura and Loro Sutradhar had filed a case Under Section 145, Criminal P.C., being case No. 3-49/48, against the accused Dinanath and some other parsons. The Magistrate, after holding an enquiry into the question of possession, found that the accused Dinanath and his men were in possession. There was, therefore, documentary evidence before the Jury, namely, the-order of the Magistrate passed in case No. 349/48, which proved that the accused Dinanath and his men were in actual possession of the land shortly before the occurrence. The evidence of the prosecution witnesses is that they were in possession of the land during 3 or 4 years before the date of the occurrence, namely, 30-11-48. This oral evidence, in view of the order of the Magistrate in the Section 145, Criminal P.C. proceeding, cannot, with any degree of confidence, be regarded as true. If the Jury acted upon the documentary evidence rather than on the oral evidence in the case, we do not think that their leaning in favour of the documentary evidence can be questioned.
3. The learned Sessions Judge is no doubt right when be says that the question is not so much as to what was the decision of the Magistrate in Section 145, Criminal P.C. proceedings. but as to who was in actual possession. But the Jury was entitled to argue that if the possession of the accused Dinanath and his men was established until a few days before the occurrence, it must be presumed that it continued till the date of the occurrence unless the accused were forcibly or otherwise dispossessed. It is not the case of the prosecution witnesses that they bad dispossessed Dinanath and his men after the order of the Magistrate was passed in the proceedings Under Section 145, Cr. P. C; their case is that 3 or 4 years before the order of the Magistrate was passed, they were in possession, and were in possession right up to the time when this occurrence took place.
4. The question of actual possession was a simple one of fact and as the Jury had before it documentary evidence which tended to discredit the oral evidence of the prosecution witnesses, we do not think that the Jury's conclusion on the question of actual possession was so erroneous as to justify a reference. In his summing up to the Jury, the learned Judge left the question of possession entirely to the Jury and gave no indication of his view which he has subsequently expressed in the reference. In course of his summing up, the learned Judge stated:
In the case, the main point for determination would be which part; had been in actual possession of the land in question. IE it is found that it bad been in actual possession of the complainant party, then you will have to find out from the evidence and decide whether the offence of rioting was established against the accused in the dock. It, on the other hand, it is found that the prosecution has failed to establish the fact of possession in favour of the complainant and further it is found that the land had been in actual possession of the accused, then the charge about the offence of rioting under Section 147, I. P.C. would fail, because in that case when the accused persons were in actual possession of the land, they could not be held to have formed an unlawful assembly, and therefore, could not also be held to be guilty of rioting. So, if the accused party had been in possession of the land, the charge under Section 147,I. P.C. and, therefore, the charge under Section 148, I. P.C. would fail. In that case, the accused and their party would be entitled to resist the complainant party if the latter attempted to reap the paddy grown by the accused's party, and, in that case the accused party would be entitled to cause simple hurt to the complt party while resisting and defending the accused's right to the possession of the land as well as in defence of their property. In that case also the charge under Sections 323 and 324, I. P.C. would fall. If it is found that the complt. had been in possesion of the property, that is, the land, and was the grower of the paddy and the accused were found guilty of rioting, the next point you will have to consider is — whether the other charges framed against some of them were proved. If the accused party were in possession of the land and the complainant were the aggressors, it has been already said that the charge of rioting and of causing simple hurts would fall. In that case, It will have to be seen whether while defending their person and properties, the accused Dina, Ranga,,Sarbesver and Gabru exceeded their tight of private defence and caused murder of Loco in furtherance of their common intention. Every person has a right to defend his own body and the body of any other person against an; offence affecting the human body. Every person also has a right to defend the property against any act which is an offence of theft, mischief or criminal trespass. So, if the complainant's party went to out the paddy of the accused party the accused had a right of defence of their each property If the accused had a reasonable apprehension of death or grievous hurt of any of their party, at the bands of Loro, and his party, then they could cause to Loro or any one of his party any harm up to death according to the circumstances of the case. The right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of clanger to the body continues. The right of private defence of property commences when a reasonable apprehension, of danger to the property commences, and such right against criminal trespass continues as long as the offender continues in the commission of the criminal trespass. So, if the accused party had a cause of right of private defence of their body and property against the complainant party, then it is to be seen whether in exercise of the right of private defence, the lour accused named above exceeded the right or not.
5. Having left these simple questions of fact to the Jury, it was scarcely necessary for the learned Judge to make a reference simply because be himself came to the conclusion that the complainant's party was in actual possession. It is to be observed that the learned Judge has accepted the verdict of the Jury bearing upon charges under Sections 147, 148, 323 and 334, I. P.C. against the accused. He has only declined to accept the verdict bearing upon the charge Section 302/34, I.P.C. The question, therefore, tot consideration is—whether on the facts and circumstances of this case, we would be justified in interfering with a part of the Jury's verdict.
6. The prosecution case bearing upon the charge under Section 302/34, I. P.C. was that the accused Dinanath caused injury to Loro in the abdomen with a spear; then accused Ranga struck a blow on the head with a lathi. Loro fell down, when accused Sarbeswar pierced Lore's ear with a spear: the accused Gabru then struck Loro indiscriminately. Now, although specific parts were assigned to certain accused persons, it cannot be said, having regard to the unsatisfactory evidence of the prosecution witnesses generally, that the Jury was unreasonable in disbelieving the evidence as to the part played by each of the accused in the attack made on the prosecution witnesses. The learned Judge in his reference says that the accused Dinanath, Ranga, Sarbeswar and Gabru should have been found guilty under part I of Section 304, Penal Code read with Section 34, Penal Code. In other words, the learned Judge himself has not been able to Bay as to which of the accused persona inflicted the fatal injury. There are obvious difficulties in applying Section 34, Penal Code, to the facts of this case. The case of the prosecution was that the accused had formed themselves into an unlawful assembly for taking forcible possession of the land. It does not follow that where a body of persons attempt to take forcible possession of land and in the act some one is killed, the terms of Section 34, Penal Code, are necessarily attracted. We ourselves are not prepared to say on the facts of the case that the common intention as required by Section 84, Penal Code, has been established against the nine accused persons with any degree of certainty. We do not think, therefore, that the Jury was perverse in coming to the conclusion that the nine accused persons against whom reference has been made by the learned Judge were actuated by the identical common intention, namely, to cause the death of Loro, and that in furtherance of that common intention, one of them caused Lore's death.
7. In this view, we are unable to accept the reference. The verdict of the Jury stands and the accused are acquitted. They will be set at liberty.
8. Ram Labhaya, J--I agree in the conclusion reached.