K.N. Saikia, J.
1. Accused appellants Akil Ali, Sattar Ali, Anaruddin and Sirajuddin appealed from the judgment of their conviction under Section 304, Part I, I.P.C. sentencing them to 7 years R. I. and a fine of Rs. 1000/- in default further G months R. I. each.
2. The Prosecution version is that while deceased Abdul Latif, Namer Ali, Rekmat Ali and Mazamil with two other members of the same family, namely, Abdul Haque and Manir, were ploughing their land, the accused persons being armed with 'lenjas', lathis and other deadly weapons attacked them with a view to dispossess them from their land. In course of the attack Akil Ali killed Latif, Sattar killed Mazamil, Anaruddin killed Namer and Sirajudidn killed Rekmat with their weapons. The two other members, namely, Abdul Haque and Manir, were also attacked and injured. Abdul Haque lodged an ejahar at the Hailakandi Police Station and after investigation Police charge-sheeted the accused appellants with some others, since acquitted; and one of those charge-sheeted having absconded and another died, 9 persons were tried at the Sessions, charged under Sections 148 and 302 read with Section 149, I.P.C. Anaruddin was also separately charged under Section 324, I.P.C. They were also separately charged under Section 302, I.P.C. They pleaded not guilty to the charges. The defence case was that deceased Moinuddin @ Mayub Ali who was a nephew of accused Akil Ali was ploughing latter's land where the deceased persons, with others, being armed with deadly weapons came and attacked Mayub who raised alarm at which Akil Ali and others came to his defence and a mutual fight took place wherein four persons of the complainant's side and Mayub of the defence side died and others injured.
3. Prosecution examined 16 witnesses including one Magistrate, two doctors and Police Officers. The defence also examined 6 witnesses, including a doctor. The learned trial Court, while convicting the accused appellants as above held that the land was in possession of the accused party but the appellants exceeded their right of private defence. The other accused persons, namely, Rashid, Faraj, Kutubuddin, Jalaluddin and Abdul Kadir were acquitted.
4. Mr. M. A. Laskar, the learned Counsel for the accused appellants submits, inter alia, that (i) the Medical evidence of injuries on the deceased persons considered with the injuries of some of the persons on the prosecution side as well as the accused side, clearly establishes the fact that the occurrence took place on a different scale and the prosecution witnesses are deposing in an improved way withholding the true story from the Court and as such are liable to be entirely disbelieved:
(ii) that there has been one death and grievous injuries on several persons on accused side and they acted in private defence of body and property and had not exceeded their rights and they could not be expected to measure their blows on a golden scale; and
(iii) that, at any rate, the sentence is severe and Akil, who is aged 78 years, and the other three have already undergone imprisonment for about 9 months and they have suffered mental torture since 1972. Counsel points out that Akil Ali admits having killed Latif acting in defence of Mayub.
5. The learned Public Prosecution, answers that the trial Court had before it clear evidence of eyewitnesses against the accused persons and as such it is not correct that the prosecution witnesses deposed in any improved way or left unexplained any injuries on the persons of some of the accused; and the trial Court has correctly held the appellants guilty and convicted them to appreciate the submissions it is necessary to take note of the injuries sustained by different persons. P. W. 2 is Dr. Mohendra Kishore Maitra, S. D. M. & H. O. Hailakandi who held autopsy and found as follows:
Mazamil Ali - a teen aged boy -
Injuries :-(1) Penetrating wound on the left thigh in front just below the inguinal ligament 3 cm. x 2 cm. x 8 cm.
(2) Penetrating wound of the right buttock - 3 cm. x 1 cm. x 1 cm
(3) Two bruises on the back upper part 3 cm. X 2 cm. and 4 cm. x 2 cm. respectively.
Abdul Latif -
Injuries :- (1) Penetrating wound at the chest, below the left exilla 2 cm. x 2 cm. x bone thickness.
(2) Penetrating wound of the left upper arm 1 cm. x 1 cm. x 2 cm.
(3) Lacerated wound at right palm head 7 cm. x 1 cm.
(4) Bruise on the forehead 71/2 cm. x 2 cm.
(5) Three bruises on the head, 4 cm. x 3 cm. 5 cm. x 3 cm. and 5 cm. x 3 cm., respectively.
injuries :- (1) Penetrating wound at the right thigh upper part in front 5 cm. x 4 cm. x 9 cm.;
(2) Two bruises on the left hand, dorsal aspect 4 cm. x 3 cm. x 3 cm. respectively;
(3) Femoral vessels of the right side severed under injury No. (1).
Injuries :- (1) Two lacerated wounds the scalp over the vault of the scalp -4 cm. x 1 cm. x 1 cm. and 1 cm. x 1 cm.
(2) Penetrating wound of the chest, left side 5 cm. x 3 cm. x whole thickness in the 4th intercostal space.
(3) Incised wound of the left upper arm, front side 8 cm. x 8 cm. x 7 cm.;
(4) Abrasion on the neck left side 1 cm. x 1 cm.;
In cross-examination he disclosed that he held post-mortem examination on the body of Mayub also and found the following:
Injuries :-- (1) Penetrating wound of the abdomen, right latteral side, lower Part - 3 cm. x 3 cm. x whole thickness.
(2) Lacerated wound on the right upper arm, latter aspect 2 cm. x 1 cm. x 1/2 cm.
(3) Bruise on the left side 3 cm. x 2 cm.
6. D. W. 6 is Dr. Rebati Kr. Deb, Assistant Surgeon of Hailakandi Civil Hospital. He examined one Jalaluddin Laskar, son of Abdul Kader on 2-10-72 and found one 4' long sharp cut injury on right ring finger, vertical in direction, bone cut - a grievous injury. In his opinion it was not self-inflicted.
7. It is reasonable to hold that the injuries on Jalaluddin Laskar are not of serious nature so as to probabilise the defence version and discredit the prosecution version.
8. As regards the injuries on the persons of the deceased, Akil Ali admits in his examination under Section 313 Cr. P.C. that he killed Latif to save Mainuddin @ Mayub, According to him hearing the cry of Mainuddin he saw him surrounded by the deceased Latif and his party. Then he (Akil) went over there taking a 'lenja' and saw Latif dealing a 'Lenja' blow on Mainuddin @ Mayub and attempting a second blow when he (Akil) killed Latif and saved Mainuddin. It is to be noted that Mainuddin also died in the same incident.
9. P. W. 5 deposed that Abdul Latif, Namer Ali, Mazamil Ali and Rekmat Ali came to plough the land belonging to Latif. Rekmat and Namer were constructing 'ail'. While Mazamil, Latif and Abdul Haque were ploughing their land Akil Ali, Sattar Ali, Abdul Matin, Mayub, Sirajuddin, Jalaluddin, Abdul Kadir and Kutubuddin came over the land with lathis and lenjas and a bag of stones and started attacking first by pelting stones, and then coming closer Akil Ali assaulted Abdul Latif with lenja. Abdul Latif fell down. Then his son Mazamil, aged about, 12/13 years came and was killed being felled by Sattar with lenja. Then Mazamil's mother Fulsuraa came and tried to save her son. Akil Ali attempted to spear her. Her brother Mayub, came to save her and the blow aimed at Fulsuma fell on Mayub who fell down. Thus P. W. 5 is corrobara-tive of the admission of Akil Ali as regards killing of Latif. P. W. 6 Fulsuma Bibi, wife of Abdul Latif, also deposed that her husband Abdul Latif, her son Mazamil along with Rekmat and Namer went to plough their own land; and while they were doing so accused Akil Ali, Sattar, Abdul Matin and Kutub came to the land being armed with lenjas, lathis etc. and carrying some stones. Seeing them coming the witness (Fulsuma Bibi) also came. Seeing those people coming that way her husband Latif wanted to go away from the land but before he could do so accused Akil, who is Fulsuma's own Sacha, speared him down. Then her son Mazamil rushed near his father for help and accused Sattar speared him down and then the witness rushed to the spot and caught her son and at that moment Akil aimed a lenja blow on her. In that moment her brother Mayub, who otherwise came to help the accused, came forward to save her and consequently the lenja blow fell on him killing him.
10. P. W. 10 Abdul Haque, himself being injured in the encounter and so more reliable, deposes that he along with Abdul Latif, Rekmat, Namer and Mazamil went to plough their land and he (Abdul Latif) and Mazamil were ploughing the land, Rekmat and Namer were constructing ails; then Akil Ali, Sattar Ali, Anar, Abdul Kader, Mainuddin, Siraj, Abdul Matin and Kutubuddin came armed with lathis, lenjas and stones and asked them to leave the land and without any reason started pelting stones. Then witness and his party tried to run away, Akil at that moment came and gave a lenja blow on Abdul Latiff, Anar gave the witness a lenja blow on his chest and Abdul Kader gave another lenja blow on him, when he fell down unconscious and regaining consciousness after a while he saw Latif and Mazamil dead on the spot while Namer was gasping for injuries on his person. Similarly Rekmat was also lying injured and Jafar Ali, Manir Ali and Amir were also injured when they came to intervene. The witness saw the female P. Ws. at the place of occurrence as also Sikandar, Mamtaz and Anowar.
11. P. W. 11 is Nitai Mia, a cultivator owning a paddy field about 3/4 kedars away from the place of occurrence. Coming to look after his paddy cultivation he saw Abdul Latif and Mazamil ploughing over their land while Rekmat and Namer constructed ails there. At that time accused Akil, Mainuddin, Sattar, Siraj, Abdul Kader, Anowaruddin and others being armed with lathis, lenjas etc. came towards them and attacked first with stones- Abdul Latif tried to go away from the land. Akil assaulted Abdul Latif with a lenjas and the latter fell down. Accused Sattar assaulted Mazamil with lenja, then the latter fell down and seeing this the witness retreated to a safe distance, but the attack continued and when over, the witness came back to the place of occurrence and saw 4 persons lying injured and of them Latif and Mazamil died, followed by Rekmat after sometime, Namer died on way. The witness accompanied Abdul Haque (P. W. 10) to the thana. In cross-examination he admits that his homestead was about 3 poas of land and that he was a day labourer and that the deceased Abdul Latif was his father-in-law. He said that he could not know who assaulted Namer and Rekmat, He accompanied Abdul Haque to the thana where the ejahar was read over to Abdul Haque and was signed by the latter.
12. P. W. 12 is Sikandar Ali of Ratanpur village. He came to see his sister at Bhajatipur when he saw accused Akil Siraj, Sattar, Jalal, Mainuddin (Mayub), Abdul Kader, Kutub and others going armed with lenjas, lathis etc. to a place where Namer, Latif, Mazamil and Abdul Haque were ploughing. The witness asked the accused party not to create trouble, but was not heeded. They attacked accused Akil, gave a lenja blow to Latif who fell down. Sattar assaulted Mazamil Siraj assaulted Rekmat, but he did not see who assaulted Namer. When Fulsuma came she was also given spear thrust, but it fell on Mayub who fell down being speared. At this the witness retreated to a distance. This witness was thoroughly cross-examined, but could not be dislodged from his version.
13. Lastly, P. W. 13 Jafar Ali, a cultivator and co-villager of the prosecution party. He saw accused Akil, Sattar, Abdul Mallib @ Matin, Siraj, Mainuddin, Kader, Amar and Jalal armed with lathis etc. and attacking Abdul Latif and others. Akil assaulted Latif with lenja, Mazamil was assaulted by Sattar with lenja and when the witness came to the place of occurrence he was also assaulted by Abdul Matin with lenja and which he sustained injuries on his abdomen and then he became senseless and could not see anything further. In cross-examination he admits that he is the nephew of Abdul Haque (P. W. 10).
14. P. W. 16 is the I. O. who visited the place of occurrence and drew the sketch map and examined witnesses and submitted the charge-sheet.
15. From the deposition of the above witnesses we find that the facts of Akil spearing Latif, Sattar spearing Mazamil and Siraj spearing Rekmat have been consistently stated by several of them. P. W. 8 Nur Nessa deposes that hearing hulla she ran to the side of the place of occurrence. Besides seeing Abdul Latif and Mazamil lying on the ground, she saw the accused Anaruddin striking her husband Namer Ali with lenja and her husband falling down and she herself fell unconscious. In cross-examination she said that she was at a distance of about 3/4 hats from her husband wherein he was felled. She did not see any other assault by any other person. She further says that none except Anar assaulted her husband in her presence. She denies having reported before Police to the contrary.
16. P. W. 9 Rashida Bibi, wife of Rekmat, deposes that hearing hulla she rushed to the place of occurrence and coming near she found Abdul Latif and Mazamil lying injured on the ground Namer Ali was doing 'Chat-fat' and then she saw Siraj assaulting her husband with lenja to death, seeing which she fell down unconscious. In cross-examination she could not say exactly which accused possessed which weapon. She repeated that Siraj assaulted her husband giving only one blow. She denied having reported before Police to the contrary. As regards the death of Mayub we have the evidence of P. W. 5 who also said that while Akil was attempting a thrust on Fulsuma, Mayub intervened and got himself speared and killed. This is corroborative of P. W. 6 Fulsuma and P. W. 12 Sikandar who clearly said that the blow aimed at Fulsuma fell on Mayub who fell down being speared.
17. Thus on the above evidence it is possible to ascertain as to who killed or assaulted whom. For the death of Latif, we have the admission of Akil himself corroborated by evidence of P. Ws. 5, 6. 10, 11, 12 and 13. For the death of Mazamil we have the corroborative evidence of P. Ws. 5, 6, 11, 12 and 13. As regards Namer we have the evidence of P. W. 8 Nur Nessa, wife of the deceased himself. As regards Rekmat we have the evidence of P. W. 9 Rashida Bibi, wife of the deceased and P. W. 12 Sikandar Ali. As regards the death of Malub (Mainuddin) we have the clear evidence of P. Ws. 5, 6 Fulsuma Bibi and P. W. 12 Sikandar. Fulsuma is the wife of Latif mother of Mazamil and sister of Mavub and as such there can be no doubt that she is a truthful witness.
18. Mr. Laskar points out that these witnesses do not speak of multiple injuries being inflicted on the deceased, for example Abdul Latif had two penetrating wounds on the chest and left upper palm. one lacerated wound on right palm of hand, and bruises on the head. Injury No. 1 was sufficient to cause death. It may be observed that the two penetrating wounds are the main while the lacerated wound and the bruises might be caused while attempting to prevent and while falling down. As such there is no intrinsic incompatibility between the medical evidence and the evidence before the Court. Mazamil, a teen aged boy had one penetrating wound on the left thigh and one penetrating wound on the right buttock and two bruises on the upper part. There is evidence of these injuries being inflicted. P. W. 5 clearly said that Abdul Sattar assaulted Mazamil with a lenja. The witnesses were specifically cross-examined as to whether they had only a single blow or more than one blows. Under such circumstances it cannot be said that there is material discrepancy with medical evidence. Namer had only one penetrating wound on the right thigh and two bruises. P. W, 8 deposes that Anaruddin caused that injury. Rekmat had two lacerated wounds on the skull, one penetrating wound on the chest and one incised wound on the left upper arm and an abrasion on the neck on left side. The injuries Nos. 3 and 4 may be consequential while Nos. 1 and 2 are caused by lenja blows. P. W. 9 saw Siraj spearing Rekmat, to death. But she saw only one blow given to her husband and the same caused two injuries to him. There may be a slight discrepancy in this regard, but it may not be enough for discarding the entire evidence. Mayub had one penetrating wound on his abdomen and one lacerated wound on the upper arm and bruise on the left waist. Injuries 2 and 3 may be consequential while trying to prevent and falling down.
19. Mr. Laskar submits that there was a melee and nobody knows who assaulted whom and as such the evidence of these partisan witnesses who claimed to have seen only part of the occurrence must be disbelieved. We are not inclined to accept this submission. Melee means a free fight in which the combatants are mingled together, confused general fight between groups or among combatants. From the evidence on record we do not have the idea of a mixed free light with such a confusion that it was not possible for these witnesses to have traced the occurrence in so far as their near and dear ones were concerned. The evidence on record is not such as will justify our refusal to scrutinise the specific evidence and reject the whole on the ground of a melee. In Muthu Naicker v. State of Tamil Nadu, 1978 Cri LJ 1713 their Lordships of the Supreme Court, observed that where there is a melee and a large number of assailants and number of witnesses claimed to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan, the distinct possibility of innocent being falsely included with the guilty cannot easily be ruled out. In a faction ridden society where an occurrence takes place involving rival factions, it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously it is to be borne in mind that the tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is to be eschewed and therefore, the evidence has to be examined with utmost care and caution. Earlier in Masalti v. State of U.P. : 8SCR133 the Supreme Court observed that where a Criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of victims, it is usual to adopt the test that: the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. Such a test, though apparently mechanical, was held to be reasonable. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal Courts have to do their best in dealing with such cases; and it is their duty to sift the evidence carefully and decide which part of it is reliable and which is not and it, should try to be assured of the role attributed to an individual offender,
20. Applying the above test in this case we find that the witnesses are consistent in the prosecution story. We find that P. Ws. 5 - Mamtaz, 6 - Fulsuma, 10 - Abdul Haque, 11 Netai Mia, 12 - Sikandar and 15-Jafar Ali all deposed that Akil speared Latif. Akil himself having admitted to have done so, we are assured of its truth. P. Ws. 5, 6, 11, 12 and 13 also consistently depose that Sattar speared Mazamil. We are similarly assur ed of its truth. P. W. 9 Rashida and P. W. Ill say that Si raj speared Rekmat. Rashida is widow of Rekmat. She told P. W. 16 that Siraj gave two blows with lenja to her husband Rekmat. We can therefore safely conclude that this is sufficient evidence. P. Ws. 5, G and 12 coincide in saying that Mainuddin happened to be killed accidentally by Akil. As regards the killing of Namer by Anaruddin, we find only P. W. 8 Nur Nessa as the witness. Even so we could perhaps rely upon her she being the widow of Namer. P. W. 16 says that she told him that due to fear she did not go near the place of occurrence and that after the accused left she gave water to her husband and took him to her house where he died in the cowshed. The sketch map indicates that Namer's body was found near his house somewhat away from the place of occurrence. We are therefore not assured of truth of Anaruddin killing Namer.
21. The next submission of Mr. Laskar is on the right of private defence, The trial court having found, relying on D. Ws., that the possession of the land was with the accused, and that finding having not been seriously challenged, the accused persons have rightly been held to have acted in private defence of their persons or properties. The manner in which they behaved and the weapons they used and multiple injuries they caused on vital parts of the bodies, considered with the bringing of the deadly weapons with them, go to show that they exceeded their right of private defence. According to the prosecution there were two persons ploughing and the fact that the sketch map mentions of only two ploughs lends some credence to the prosecution story. Even so, we have carefully considered the submission and borne in mind that under such a situation it may not have been possible for them to weigh their defensive blows in a golden scale; but the circumstances clearly indicate that this was merely a case of the offenders having taken undue advantage or acted in a cruel or unusual manner so as almost to take them beyond protection of Exception 4 to Section 300, There can be no doubt that the acts by which the deaths were caused were done with the intention of causing death or atleast of causing such bodily injury as was likely to cause death. We accordingly uphold the conviction and sentences of Akil, Satter and Siraj but acquit Anaruddin on benefit of doubt.
22. Mr. Laskar submits that the sentences have been severe particularly for Akil who is said to be aged above 70 years. The occurrence took place as far back as in 1972 and the appellants have already undergone imprisonment for about 9 months which will be adjusted. Considering the facts and circumstances we think that the ends of justice and crime prevention will be served if the sentence is reduced to 5 years R. I. and the fine is reduced to Rs. 500/- in default 3 months R. I. each. With this modification of the sentence, and acquitting Anaruddin, their appeals are dismissed. The bail bonds of the three appellants are cancelled. They shall now surrender to serve out their sentences. Anaruddin shall be set at liberty forthwith.
D. Pathak, Actg. C.J.
23. I agree.