1. The six applicants in this case have been convicted of rioting, Mst. Rambai and Firtu under Section 148 and the remaining four under Section 147, Penal Code, Each of them has been sentenced to a fine of Rs. 50/- or three months' rigorous imprisonment in default.
2. The trouble arose over the possession of the field known as Kisansinghwala field. Shardaprasad alleges that he purchased it on 2.11.1946 from the accused Rambai for Rs, 2,000/-. Rambai denies the sale of the field. The learned Magistrate has not given any finding regarding the fact of sale, but has found that the possession of the field was with Rambai and that Shardaprasad was not right in taking the cattle grazing in the field to the cattle pound. The cattle belonged to some of the accused (Kudau, Baiju and others).
3. In spite of these findings the learned Magistrate said:
However as the story of the cattle grazing in the field is not the story of the accused persons I need not discuss the point further. It is also not the story of the accused that the 'marpit' took place in the exercise of the right of private defence of property.
He seems to be labouring under the wrong impression that as the accused have not raised the plea of the exercise of right of private defence of property they cannot get benefit of it even if it is established by the evidence led by the prosecution. What S, 105, Evidence Act says is that the burden of proving that his case comes within any of the exceptions is on the accused and the Court shall presume the absence of circumstances bringing the case within the exception. This is only a rule regarding burden of proof and it does not mean that the Court must not take into consideration even the facts proved which establish the defence if the accused has not raised that plea or defence. In - Mangal Ganda v. Emperor AIR 1925 Nag 37, we get the following observations:.Section 105, Evidence Act says nothing about pleas but places the burden of proof in certain circumstances on an accused person. But if the prosecution has already performed that task for him, it is clearly not necessary for him or anybody else to do it all over again. For a Court to say that a fact is not proved, which, after considering the matters before it, it confidently believes to exist is to stultify itself and to go contrary to the dictates of common sense and the definition of proof in Section 3, Evidence Act.
4. The reasoning of the learned Magistrate goes against the very aim of a criminal trial which is to find out the truth. Sarkar in his Law of Evidence (8th Edn. (1948) at page 818 says
It would appear from the cases above that there is some divergence of judicial opinion on the point, but the preponderance of authority seems to be in favour of the view taken by the Calcutta High Court in - Kali Charan Mukerjee In the matter of 11 Cal LR 232, and that view seems to be more rational. There is nothing in law to warrant the proposition that an exception should be specifically pleaded or that there must be some evidence on the accused's side to prove that his case comes within the exception. The conclusion may be drawn from the evidence in the case although it might be on the prosecution side. It ought not to matter from which quarter the evidence came. If on the facts proved, it is found by the Court that the accused did not commit any offence, or the Court is left in reasonable doubt of his guilt, he cannot certainly be convicted merely because he failed to plead any exception or was unable to give any evidence on his side.
In - 11 Cal LR 232', their Lordships of the Calcutta High Court observed
From this we understand the Sessions Judge to be of opinion that had the appellants before him been in a position to claim an acquittal on the ground that they had not been properly convicted because on the evidence on the record they had committed no offence, he would have acquitted them, but inasmuch as by not raising before the Magistrate the plea that they were acting merely in exercise of the right of private defence, he could not consider the point except in mitigation of the sentences passed. Such an argument is clearly untenable. If the plea could be entertained at all, it could be maintained to the fullest extent. The Sessions Judge has in effect held that on account of a technicality, which is altogether without any force, the appellants before him were unable to contend that they had not committed the offence of rioting, but that although they were not guilty still in consequence of the omission to plead this before the Magistrate, they could not claim absolute exemption from punishment.
It is true that Section 105, Evidence Act placed on the accused the burden of proving that in any criminal trial, they acted within their legal rights in the exercise of the right of private defence of property, still this burden can be discharged by the evidence of witnesses for the prosecution as well as by evidence for the defence on such a plea being set up; and the accused are clearly entitled to claim an acquittal if, on the evidence for the prosecution, it is shewn that they have committed no offence.
Further we would observe that if the evidence for the prosecution did establish this, the charge on which the accused were tried was incorrect, for applying illustration (2), Section 439, Criminal P.C. to the present case, the charge of rioting is equivalent to a statement that the act of the accused fall within the definitions of rioting given in Sections 146 and 148, Penal Code, that it did not fall within any of the general exceptions of the Penal Code &c.; But if the evidence showed that it did fall within one of the general exceptions, viz., that relating to the exercise of the right of private defence of property, the charge was unsustainable.
In - Emperor v. U Damapala AIR 1937 Rang 83, their Lordships of the Rangoon High Court held that even when the accused denies 'in toto' the act or acts alleged, if evidence of the existence of circumstances bringing the case within a general or Special exception is to be found in the evidence for the prosecution, the Court must review the whole evidence and either acquit the accused or convict him of the minor offence as the case may be. In - Emperor v. Hasan Abdul Karim : AIR1944Bom274 , their Lordships of the Bombay High Court observe that this section (Section 105, Evidence Act) does not relieve a Judge, even in cases where the accused has not pleaded that his case comes within any particular exception, from pointing out to the jury such facts in the evidence as might justify the jury in taking the view that the accused's case was covered by one or other exception.
5. It is, therefore, the duty of the Magistrate to consider the effect of his finding regarding the illegal seizure of the cattle. As Shardaprasad was not in possession of the field, he had no right to take the cattle, to the cattle pound, and his act in taking them to the cattle pound amounted to theft as was held in - Madra Damri v. Emperor AIR 1946 Nag 221. Mst. Rambai and the people who had gone to the field with her had the right of private defence of property under Section 97, Penal Code which runs thus:
Every person has a right, subject to the restrictions contained in Section 99, to defend-
First x x xx x xSecondly - The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an, attempt to commit theft, robbery, mischief or criminal trespass.
The relevant parts of Section 99 'ibid' are:
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Section 103, Penal Code lays down when the right of private defence of property extends to causing death. It is not applicable to the present case. Section 104 'ibid' runs thus:
If the offence, the committing of which, or the attempting to commit which, occasions the exercise of right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right Hoes not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any harm other than death.
6. The injuries caused in this case were: 'To Shardaprasad:
1. A laceration 1 1/6' 1/8' - Right partial eminence.
2. A contusion 2' 1' - Right shoulder
3. A contusion 1' 1' - Dorsal aspect of the right wrist.
4. A contusion 2' 1' - Back of right leg at its middle.
5. A contusion 2' 1' - Left infra scapula area.
1. A laceration 1' ' 1/6' Right frontal eminence.
2. A contusion - two each 2' 1' - Back of middle of left eye.
3. Contusion - two each 2' 1' - Back of middle left leg.
4. A laceration 1' ' 1/6' - Front of upper 1/3rd of right leg.
1. A laceration 1' 1/6' 1/6' - On the back of upper third of the right forearm.
2. A contusion 2' 1' - Left thigh upper 1/3 at the back.
3. A contusion 1' 1' - Left leg at its middle behind.
Vide deposition of P.W. 1 Dr. K.P. Sengupta.
The nature of these injuries and the circumstances of the case do not show that the harm caused was more than it was necessary to inflict for the purpose of defence.
7. The learned Magistrate, however, relying on the evidence of Nanhe Bhaiya (P.W. 6) and Chunnilal (P.W. 10) held that the accused persons had gone to the field well prepared and with the common intention to right with Shardaprasad and others. He has, however, not taken all the circumstances into consideration and has misapprehended the evidence.
8. Shardaprasad's application for action under Section 145, Criminal P.C. was rejected on 3.9.1948 and yet he went with his brother Chandrikaprasad and brother-in-law Rameshwar to the field on 20.9.1948 - the day of occurrence - and started driving to the cattle pound the cattle belonging to some of the accused which were grazing therein. Shardaprasad, his brother and brother-in-law had gone to the village Dhana on the previous day and had gone to the field on 20.9.1948 at 11 a.m. It appears from the evidence of Nanhe Bhaiya (P.W. 6) that the accused received this information, for the witness says:
Some of them (accused) said that Sharda and others be informed that they should also come as they were ready. Rakhan said this and they all then went away.' These words taken in the light of the circumstances mentioned above in this paragraph show a common object to protect the possession of the field and not to merely have a right to measure strength, I may in this connection quote the following very useful observations of Agarwala J. in - Paras Ram v. Rex : AIR1949All274 :
When a fight takes place not because property or person as to be protected but because parties want to measure their strength, and protection of property is merely a pretext, no question of self-defence arises, but this finding can be arrived at only when the possibility of either party fighting for the protection of his property has been excluded.
When the determination to fight is 'bona fide' in the desire to protect one's property, that would not be a case in which it can be said that the right of self-defence is excluded. In this connection, it would be important to note whether one is fighting for maintaining one's possession or maintaining one's enjoyment of a right which has been enjoyed for same time previously, or one tries to obtain possession of a property which he thinks belongs to him, or to enforce a right which may be his but which he had never enjoyed before. In the latter class of cases, there is no right of self defence. In the former class of cases there is.
The assembly of Rambai and the other accused was, therefore, not an unlawful assembly and the accused were not guilty or riothing.
9. The convictions and sentences inflicted on the accused-applicants are, therefore, set aside and they are acquitted. The fines which have been recovered be refunded to them.