1. In respect of an incident which took place at about 8 a.m. on the morning of the 28th of April 1957 at Kuchoor in Arkula village, Manglore Taluk, South Kanara, in front of thehouse of one Iddinabba Beary, in which the said Iddinabba Beary received some simple injuries and one Mohamad Hussain alias Monu Beary received serious injuries which resulted in his death at the Hospital later that night, sixteen persons were tried by the learned Sessions Judge of South Kanara upon four charges.
The first and the third of them were against all the 16 accused persons, the former being for the offence of rioting armed with deadly weapons punishable under Section 148 of the Indian Penal Code, and the latter for the offence of murder punishable under Section 302 read with Section 149 of the Indian Penal Code. The second charge was only against the 2nd and the 5th accused for having committed the murder of the aforesaid Monu Beary in the course of the same transaction and in pursuance of their common intention to cause his death punishable under Section 302 read with Section 34 of the Indian Penal Code. The fourth charge was against accused Nos. 3, 4 and 5 for the offence of voluntarily causing hurt to Iddinabba Beary in the course of the same transaction and in pursuance of their common intention to cause hurt punishable under See. 324 read with Section 34 of the Indian Penal Code.
2. After trial, the learned Sessions Judge has acquitted all the accused of all the charges. The principal if not the only substantial reason stated in support of the acquittal is that P. W. 1 Iddinabba had no right whatever in respect of the trees in the yard, that the mango tree in respect of the usufruct of which the incident occurred, was in the possession of the first accused and that such acts as could be attributed to the accused or any of them were those done in the exercise of the right of private defence and therefore not punishable as offences. The learned Sessions Judge further held that because the name of the 2nd accused had not been correctly stated in the first information EX. P-2, his name must have been subsequently introduced and that in any event, he was entitled to the benefit of the doubt upon evidence.
3. The State has filed this appeal against the said order of acquittal, impleading thereto only the first five accused as respondents. There is no appeal against the acquittal of the rest of the accused persons. The contention of the appellant is that whatever may be the position in respect of accused Nos. 6 to 10, there can be no doubt about the complicity of the first five accused persons in the crime, the first two of whom are direct brothers, the 3rd and the 4th, the tenants of the first accused living in the same village and the 5th a person who is said to have purchased from the first accused the usufruct of the mango tree in respect of which the incident is said to have occurred, that the evidence against these five persons is clear and convincing and that, therefore, their acquittal by the learned Sessions Judge is manifestly wrong and illegal.
4. The first accused came to reside in Kuchoor about two years before the occurrence. He purchased some properties in that village and also constructed a house therein for his residence. According to the evidence of the village Patel A.B. Dharmaraja Setty (P. W. 6), there are more than 15 tenants in the properties purchased by the first accused. Although there is controversy as to whetherP. W. 1 Iddinabba Beary has or has not any tenancy rights and if so, of what nature, there is no doubt that he, along with his mother Ajjamma and brothers Abdul Khadri P. W. 5) and Bava Beary (P. W. 16), was living in a portion of a house situated in the property purchased by the first accused.
The remaining portion of that house was in the occupation of his mother's sister Alima and her husband BadVa Kunhi Beary. According to P. W. 1, the said house as well as the yard appurtenant thereto, had been taken on lease from the previous owners by his mother's father Khasim Beary. Besides Ajjamma and Alima, Khasim Beary has another son called Padil Hammad Beary who admittedly resides in another village Called Padil and net in this house. According to P. W. 1, his father Sadu Beary with his wife and children, was the tenant after Khasim Beary's death and was living in that house until he divorced his wife and left the place some years ago.
After the departure of Sadhu Beary, the afore-said Badava Kunhi, with his wife Alima, is said to have come and resided in a portion of the house. It is the case of P. W. 1 that he was paying Rs. 3/- being half the agreed rent into the hands of Badava Kunhi who was paying the full rent of Rs. 6/- to the landlord. His further case is that the fruit trees in the yard had been planted by his grandfather and that, therefore, the landlord had no right to the trees or their usufruct. He states that there had been an oral partition between him and Badava Kunhi in respect of these trees and they were enjoying the usufruct of the trees which fell to their respective shares under that partition.
5. As against this claim of P. W. 1, the case put forward on behalf of the 1st accused is that P. W. 1 was not his tenant at all, that at the time of his purchase, the house and the yard were in the possession of not P. W. 1 but Badava Kunhi Beary and that the said Badava Kunhi Beary had executed a sodchit or release deed surrendering the possession of the trees, but retaining the possession of only the house. That this case made on behalf of the first accused is not the last word on the matter, is however, clear from the evidence of the patel P. W. 6 and from certain answers elicited in the cross-examination of P. W. 1 himself and his brothers.
The Patel states in his chief examination that P. W. 1 is a tenant of the first accused, and the only modification of this statement made by him in the course of his cross-examination on behalf of the first accused is that he described P. W. 1 as the first accused's tenant because P. W. 1 is residing in a house belonging to the first accused. In the cross-examination of P. W. 1, it has been elicited that he has not executed any lease deed but that there had been two panchayats in respect of his claim to the usufruct of the trees.
The first of them took place about a month or two before the occurrence, and the second about 10 days before it. In the first panchayet, the first accused, the 12th accused, one Sanjeeva Prabhu and P. W. 1's maternal uncle Padil Hammad Beary were present besides P. W. 1 himself. He states that the panchayetdars told him that he might reside in the house but must not touch the usufructof the trees. The occasion for the second panchayat was the first accused sending one of his servants to pluck the usufruct from the trees in the yard, which was objected to by P. W. 1. Thereupon, P. W. 1 went and brought down the patel P. W. 6 to hold a panchayet.
This time also the patel and the other panchayetdars told him that he should not touch theusufruct. It further appears that at this panchayat,although the first accused was not present, the panchayetdars made a suggestion that P. W. 1 should vacate the house on receiving a compensation of Rs. 25/-, as against which P. W. 1 claimed a compensation of Rs. 200/- That these panchayats did take place is also clear from the answers elicited in the cross-examination of his two brothers examined as P. Ws. 5 and 16 in this case. The patel in his evidence also refers to his having made a proposal to P. W. 1 which the latter declined to act upon.
6. On this matter, the finding of the trial Judge was that it was the first accused that was in the possession of the mango tree in question. Before discussing the material on record and coming to that conclusion, the learned Judge expressed the view that the question whether the accused could be said to have constituted themselves into an unlawful assembly, depended upon the answer to the question whether their common object was lawful or unlawful and that in deciding the latter question the crux of the problem would be whether the tree in question was in the possession of the first accused or not.
The argument on behalf of the prosecution, both in the Court below and before us, on this matter has been that the question as to who was in possession of the tree was really immaterial and that if it could be shown that the accused had the common object of enforcing any right or supposed right by means of criminal force or show of criminal force against any person, the case would fall within the fourth clause of Section 141, and the accused persons would undoubtedly constitute an unlawful assembly.
On the evidence, the argument continues, it is by no means clear that the first accused was in exclusive possession of the tree or has had the exclusive right to the usufruct thereof, but that, on the contrary, it is quite clear that he and his companions used criminal force to enforce a disputed right and not in protection of an undoubted right.
It is further contended that the plea of private defence has not, in fact, been clearly raised by the accused, nor have they placed on record any material in support of that plea much less material of such a nature as to be sufficient to discharge the burden of proof resting upon the accused under Section 105 of the Indian Evidence Act. On this basis, it is strongly urged that the learned trial Judge misdirected himself on an important question of law and his conclusions thereon are manifestly erroneous. These are the principal questions of law for consideration in this appeal.
7. Regarding the incident itself, the principal witness is Iddinabba Beary examined as P. W. 1. Four others have been examined as eye-witnesses. One of them, viz. P. W. 5 Abdul Khadri, is P. W.
1's brother; two of them, viz. Sairabba P. W. 2 and Abbonu P. W. 4, are beedi rollers working as servants under deceased Monu Beary, and the last of them, Uchappa P. W. 3, does not belong to the village but had come there on a visit to his wife, the daughter of one Mukri Beary, a resident of Kuchoor village.
8. Before summarising the evidence of these eye-witnesses regarding the incident, we think, it is necessary to say a few words about deceased Monu Beary and his relations with P. W. 1 on the one hand and the first accused on the other. He is said to be the maternal uncle of P. W. 1, and the evidence discloses that in respect of his claim to the usufruct of the trees in the yard, he was either supporting or encouraging P. W. 1. Ex. F-2 the first statement of P. W 1 before the Police Head Constable Sundara P. W. 14, which is treated as the first information in the case, it is stated that there is enmity between Monu and the first accused, the reason for that being that the land on which Monu's Beedi Factory was situated, belonged to the first accused and had been granted on Mulgeni or permanent lease to one Belchada and the attempts of the first accused to get possession of the land were foiled by Monu's refusal to vacate.
In the evidence, further reasons for ill-will are also stated. One of them is that Monu was instigating Duje, one of the tenants of the first accused, not to vacate at his request, advising him that be might be ousted only by an order of a competent Court. The other is that when two of the beedi rollers who were working under Monu left him on the instigation of the first accused, P. W. 1 sent two of his younger brothers to work for him in their place. The learned trial Judge was not prepared to attach much weight to this evidence as to ill-will because the workers who are said to have left Monu as well as the tenant Duje, have not been examined and Duje had in fact been cited as a prosecution witness but later given up as hostile.
There is, however, the evidence of P. W. 6, the patel, to the effect that the feelings between Monu and the first accused were not good and that one of the reasons for it was that the first accused felt that Monu was setting up P. W. 1. Whether Monu was giving evil advice to P. W. 1 to annoy the first accused or was merely encouraging him to stand by his alleged rights, there can be little doubt that he was looking up to Monu for advice as we shall presently show on an examination of the evidence. (Their Lordships after discussing the evidence (Paras 9-16) proceeded:)
17. With reference to the direct evidence ofthese eye-witnesses, the complaint made on behalf ofthe appellant before us is that there has not beena proper or full consideration of it by the trialJudge and that the important fact of IddinabbaP. W. 1 having gone to the patel on themorning of the incident has been completelylost sight of. * * * * *
18. In view of these, it seems to us that the complaint of the learned Government pleader is not wholly unwarranted. On a perusal of the judgment, it is not possible to say definitely whether the learned judge actually believes or disbelieves the eye-witnesses. That an incident did take place onthe day as alleged by the prosecution at which Monu received fatal injuries, is apparently not disbelieved by the learned Judge.
As we shall refer later, there is a certain version given by the 5th accused which is different, from that given by P. W. 1, according to which none of the accused persons, except himself was present on the occasion. There is no clear finding by the learned Judge as to which of the versions he actually accepts. There is also no clear finding whether any of the accused other than the 5th accused was or was not present at the scene of offence.
Even in regard to the second accused, he has merely given him what he describes to be the benefit of the doubt. From his reference to certain associates of the 5th accused, it looks as if that he did not fully accept the 5th accused's case that he alone, among the accused persons, was present. Even with regard to the right of private defence, the essential question whether there was any resistance on the part of P. W. 1 and Monu, is also not clearly found answered in the judgment.
19. It therefore seems to us that it is necessary to reappreciate the evidence ourselves and come to our own conclusions as to what facts, if any, have been established by the evidence.
20. It need hardly be said that in assessing the value of the evidence of the eye-witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence.
In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to he taken into account while assessing the value of the prosecution evidence.
41. The position on the evidence therefore is that two of the eye-witnesses have seen him coining to the first accused's house on the evening of the day before occurrence, all the eye-witnesses have seen him present and participating in the attack on Monu and four of them have seen him going towards Mangalore in the car after the incident. The evidence of these witnesses tending to implicate the second accused is not, in our opinion, shaken or discredited by cross-examination.
The only motive suggested for falsely implicating him, viz. the alleged machinations of Hasan Haji, does not for the reasons explained by the learned Government pleader, appear to be acceptable. In the absence, therefore, of the evidence of P. W. 6 that Ramanna Shetty in the car is notthe second accused but a brother of Meremajal patel, the rest of the evidence is sufficient to identify the first accused's elder brother mentioned in Ex. P-3 with the second accused before the Court.
This part of the evidence of the patel has been strongly relied upon by the learned Judge for coming to the conclusion that the allegation that accused 1 and 2 were seen in close company after the incident is not established in the case. He notices the argument of the Public Prosecutor that this portion of the evidence of P. W. 6 should nor be believed, but observes (as he has done in the case of P. W. 9 Dr. K.K. Rai) that this manner of criticising ones own witnesses is not permissible.
It is true that ordinarily when a party puts a witness in the box, he can be taken to represent to the Court that the said witness is expected to state the truth. It is also true on the ground of policy that a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the Court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to cross-examine him.
Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, it not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do, The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the court of its own high duty of attempting to discover the truth.
Even when a witness deposes in favour of thecase of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not changeif the evidence given by such a witness is adverseto the case of the party calling him. Even in sucha case, the Court has the power and duty of deciding whether or not to believe him. It is, therefore,not right, in our opinion, to proceed on the basisthat whatever is stated by a witness which is notin favour of the case of the party Calling him shouldnecessarily be believed as if it were an admissionmade and binding upon the party calling him. Inthis view we have to examine whether this statement of a solitary witness which is against the evidence of all other eye-witnesses, should bebelieved in the circumstances of the case.* * * We are thereforenot prepared to reject the testimony of a largenumber of witnesses for reason only of the factthat a witness like P. W. 6 has made a vague statement as to the identity of Ramanna Shetty foundin the company of the first and the fifth accusedin the car by which he travelled to Mangalore.
42. There can, therefore, be no doubt that, as the eye-witnesses state, the second accused came to the first accused's house on the evening previous to the day of the occurrence, he participated in the incident and went to Mangalore in the company of the first and the fifth accused and the patel P. W. 6 shortly after the incident.
43. It will be appropriate at this place to consider the observations made by the learned trial Judge regarding the course of the investigation made in this case. Regarding the circumstances in which Ex. P-2 tame to be recorded by P. W. 14, the learned Judge in para 7 of his judgment notes what he describes as certain discrepancies with the observation that he shall have occasion to refer to the same later while evaluating the evidence of P. Ws. 2 and 4.
These discrepancies consist in the fact that whereas P. Ws. 2 and 4 stated that they saw some police-man or constable in the hospital and that he questioned them also according to the evidence of the Head Constable Sundara P. W. 14, he recorded the statement of only P. W. 1., As to whether Ex. P-2 correctly recorded what P. W. 1 stated the learned Judge criticises P. W. 14 for stating that his knowledge of Tulu and Malayalam was Imperfect, observing that he being a native of Kasargod and having seen long service in several parts of South Kanara, ought to have known these languages better.
Referring to the wound Certificate in respect of Monu issued by Dr. Punja P. W. 8 wherein ho has noted that Monu was complaining of pain over front of both the knees indicating therefore that Monu was conscious at that time, be contrasts the same with the statement of P. Ws. 2 and 4 that during the period they were in the hospital Monu was unconscious. It is clear, however, from the evidence of Dr. Punja himself that Monu who was conscious and talking when he was admitted to the hospital, relapsed into unconsciousness and never regained consciousness again.
The doctor further says that he waited and made the police constable also wait till about 3-15 in the hope that the patient might regain consciousness. He also states that in the first instance he did not expect that the patient would die and therefore thought that no dying declaration would be necessary. Another criticism of the learned Judge is that the Police Sub Inspector P. W. 20 did not examine any witnesses at the inquest held on the body of Monu on the following day at Mangalore hospital.
This Sub Inspector had been to Ullal in connection with some investigation, and Ex. P-2 was delivered to him in the Railway Station at 10-15 p.m. on 28-4-1957. He immediately proceeded to the hospital saw Monu in an unconscious condition and then proceeded to the place of occurrence reaching there at about 11-10 p.m. with some constables. He could not do any work that night but states that he posted some men to guard the houses of accused 1, 3 and 4 to see that they did not escape.
Early next morning between 5-30 and 6-30, he searched the houses of these accused and found there neither the accused nor any incriminating evidence. Thereafter he inspected the scene of occurrence and started writing the observation yadasth. When he had just commenced doing that work, P. W. 22 Ammanna, the Circle Inspector of Police, arrived and took up the investigation,
Ammanna himself received information in his house at 4 a.m. and reached Kuchoor at 6-30 a.m.
He directed P. W. 20 to go back to Mangalore and hold an inquest over the body of Monu who had died some time after P. W. 20 himself had seen him in the hospital the previous night. Further investigation was conducted by P. W. 22. P. W. 20 has admitted that he had not opened any case diary though he should have done so.
The defence has suggested both to P. W. 20 and to P. W. 22 that the former did open a diary but deliberately suppressed the same. Both have rejected this suggestion. Referring to these circumstances, the learned Judge observes towards the end of paragraph 13 of his judgment that the investigation by P. W. 20 must have proceeded on the lines indicated in Ex. P-2 which is silent on the question of any dispute in respect of the mange tree and that therefore the suggestion of suppression made on behalf of the accused deserves serious consideration.
44. We must confess that we are unable to understand how and in what respect these deficiencies in the matter of the investigation have affected the case or the substance of the matter. It is true that P. W. 20 should have in the ordinary course opened a case diary. But as the evidence indicates, all that he had done was to post some constables to guard the houses of the accuse on the 28th and search their houses and just commenced making the observation Yadasth.
The subsequent investigation was conducted entirely by P. W. 22, except that P. W. 20 held the inquest under his orders. We do not know what reason there could be for his suppressing the case diary, if any, opened by him. No suggestion of any ill-will, mala fides or corruption has been made against him or any other police officer in the case. Beyond making these different observations or criticisms, the learned Judge has not stated his considered opinion whether there are circumstances which would make Court entertain doubts about the bona fides of the investigation.
In the absence of any such opinion, it is net clear where the several observations made by the learned Judge lead to. We must state in fairness to the learned counsel for the accused before us that he has not made any such point before us. Though he has attacked the evidence of the eyewitnesses and stated his arguments, he has not contended that the police have acted with any mala fides against the accused.
It must also be observed that the prosecution have taken the risk of examining such a witness as P W. 6, the patel, and have placed on record the evidence of Dr. K.K. Rai of Buntwal Local Fund Hospital and B.P. Nair, the Head Constable at the Buntwal Police Station, by examining them as P. Ws. 8 and 12 respectively, which evidence is relevant only to the version of the 5th accused which is not the case of the prosecution and whose complaint Ex. P-13 has been referred back as false by the investigating officer P.W. 22.
45. Considering all these circumstances, we do not think that there is any warrant for suggesting that the bona fides of the investigation are open to doubt or that the course of the investigation is such as to cast doubt upon the evidence of the eyewitnesses.
46. There is only one aspect of the matter in respect of which it appears to us not sate to place complete reliance on the accuracy of the eye-witnesses observations, and that is, in regard to the individual acts attributed by them to the several accused persons. We have, while summarising their evidence, already noted certain differences or discrepancies in the description given by them even in the course of their chief examination.
The cross-examination of these witnesses touching their statements regarding the individual acts of the accused has also not been so completely unsuccessful as in other respects. Except as to the commencement of the actual attack on Monu which stalled with the first accused giving a blow on his arm when he said he would take photographs the further events were virtually in the nature of a general attack on him by all the persons present.
P. W. 2 states that the entire assault may have occupied just about five minutes from the time the accused came to the yard. When P.W. 1 went to the patel after the incident, all that he is reported to have told him was that the first accused and his men have assaulted Monu and himself. In his statement Ex. P. 2 recorded by P.W. 14, as the learned trial Judge observes, the only specific reference to an individual act is the blow administered by the first accused on Monu's hand and this statement is followed by the sentence -
'At the very moment all the persons who came along with him struck on the head and back of my maternal uncle (Monu)'.
He further states that when he intervened he also received 3 or 4 blows on his hand without giving the names of his assailants. We have also pointed out that their evidence regarding Monu falling face downwards & the 8th accused trying to pin him down with a forked stick, is not corroborated by the medical evidence. It is true as the learned Government pleader observes, that in their evidence before the Court the witnesses are clear in their statements regarding the blows administered on the back of Monu's head by the second and the fifth accused and in naming the third, fourth and the fifth accused! as the particular assailants of P. W. 1. It is also true that in respect of these details there is no serious contradiction by their police statements put to them which statements, as already mentioned, were recorded on the forenoon of the 29th of April 1957, the morning immediately following the incident.
It may be that in giving these details the witnesses are not deliberately telling a He but honestly mentioning their recollection of the incident. But in a narrow strip of land which is only 15 yards wide if so large a number of men as 15 to 20 have taken part in the assault which occupied a period of five minutes or less, the possibility of the observations of the witnesses having been inaccurate or not quite accurate cannot be fully discounted. Hence while there is no reason to disbelieve their evidence so far as it establishes the presence of the accused and their participation in the incident, we consider it safer not to take as absolutely correct their statements regarding the individual acts of the several persons.
47. On a consideration of the entire evidence and the several circumstances bearing upon the probabilities of the case, we are of the opinion that the following facts are dearly established:
48. On the evening of Saturday the 27th of April 1957, a dozen or more men came to the house of the first accused. Some of them including the fifth accused went to the house of P. W. 1 and told him that they had been brought by the first accused to pluck the fruits from the trees in the yard of P.W. 1 and declined to wait for either the patel or Monu whom P.W. 1 wanted to consult in the matter. On the following morning P. W. 1 approached both the patel and Monu whereas the former declined to come to the place the latter did come with a camera in his hand.
At or about 8 a.m. in the morning, the first accused in the company of accused 2 to 5 and others did come to the yard with a view to pluck the fruits from the trees in the yard. On hearing the protest of P. W. 1's mother, he directed his men to arm themselves with cudgels. Accused 1 to 5 were among the persons who so got themselves armed with cudgels. The first and the filth accused proceeded first to where Monu was sitting and started speaking to him. It was his declaration that he would take some photographs that invited an attack upon himself which resulted in his receiving serious injuries. In this attack, all the five respondents before us did take some part or other. In the course of the same incident P.W. 1 also received some minor injuries.
49. On these facts, the question is whether and if so, what offences have been committed by the five respondents before us. Before answering that question it is now necessary to examine the theory of private defence on the strength of which the Court below has acquitted these respondents.
50. It may be stated at the outset that with the possible exception of the fifth accused, no other accused has expressly raised this plea. It will be remembered that except the third, fourth, sixth and the 7th accused, every other accused raised an express plea of alibi. A plea of self defense on their behalf is therefore inconsistent with the express plea raised by them. However, if on the material placed on record the plea of private defence could be made out consistent with the provisions of section 103 of the Indian Evidence Act, there will he no justification to deny the benefit of it to the accused.
51. While stating the background of the incident at the commencement of this judgment, we have already referred to the claim by P. W. 1 to the fruits of the trees and to the case of the first accused in respect thereof. As indicated by us, whatever may be the strength or weakness of the claims of these two persons to the usufruct of the trees, there can be no doubt that P. W. 1, his brothers and parents had been in occupation of the house from a day long anterior to the purchase of the property by the first accused which he did only two years before the incident.
With a view to show that P. W. 1 has no rights whatever and that the first accused alone has acquired the exclusive right to the usufruct of the trees, the accused have depended upon certain admissions made by P. W. 1 himself in the course of his cross-examination as well as upon a Sodchit orsurrender deed executed by his mother's sister's husband Badava Kunhi Beary who is admittedly an occupant of a portion of the same house. Those admissions are the ones contained in Exs. D-l and D-2 which are extracts from his deposition before the committing Magistrate.
According to them, P. W. 1 has never executed any lease deed and it was Badava Kunhi Beary who executed lease deeds in respect of the house and compound after he came to reside in the property. Badava Kunhi came to the place 2 years after P. W. 1's father Sadhu Beary left his wife and children. During that period of two years after his father left the house, P. W. 1, his mother and brothers continued in occupation without executing any lease deeds. No lease deeds in respect of the property have been produced in the case.
Likewise, the Sod chit said to have been executed by Badava Kunhi Beary is not before the Court. In support of the case that there has been such Sod chit, the learned counsel for the respondents relies on the evidence of P. W. 6 to the effect that when in connection with the second panchayet he and certain others made enquiries with the first accused, the latter told him that Badava Kunhi Beary alone was his tenant and also showed him the Sod chit executed by him.
When P.W. 6 told P. W. 1 about the Sod Chit, the latter told him that he was not aware till then of the execution of the Sod chit. P.W. 1 admits that he came to know of this Sod chit under which Badava Kunhi Beary had surrendered his holding including the trees sometimes before the incident, adding that Badava Kunhi did not tell him that he (P. W. 1) had no right to the disputed mango tree. He was sought to be contradicted by Ex. D-3 portion of his deposition before the committing Magistrate where he has stated that Badava Kunhi Beary did tell him that they had no rights to the trees 10 days before the occurrence.
But he has stated that he has not stated like that before the Magistrate. The accused also want to take advantage of the fact that Badava Kunhi Beary has not been examined before the Court and that P. W. 1's own mother, her sister Alima as well as her brother Padil Hammad Beary who had been cited as witnesses for the prosecution were later given up as having turned hostile. This, according to the accused's counsel, clearly indicates that P. W. 1's own mother and very near relations have not cared to come to Court in support of his case.
52. It is on this material that the learned trial Judge came to the conclusion that the first accused was in the possession of the mango tree in question and that the beating that he had his men gave to Monu and P. W. 1 was intended to prevent an attempted criminal trespass in respect of the tree. Though we find it difficult to understand the idea of a criminal trespass in respect of a tree, it will not be correct to say, as the learned Government Pleader says, that the question of possession of the tree is entirely immaterial.
The basis for the learned Government Pleader's argument is that because according to the fourth clause of Section 141 of the Indian Penal Code, the show of criminal force or use of criminal force against any person to enforce any right or supposed right is sufficient to convert an assembly of five of more persons acting with that common object into an unlawful assembly, it is immaterial whether the first accused actually had a right to the usufruct of the trees or he merely supposed that he had such a right.
We are unable to agree that the use of the terms 'any right' or 'supposed right' indicates any difference or distinction in the application of the section depending upon the actual existence of a right and the supposed existence of that right! Whether that right exists or is merely supposed to exist, the essence of the fourth clause of Section 141 is the use or show of criminal force to enforce that right. The expression 'enforce a right' implies the existence of two persons,--the person who enforces it and the person against whom it is enforced.
Such a situation can arise when the property over which, or the subject in respect of which, the right is sought to be enforced, is not in the possession of the person trying to enforce that right but in the possession of the person against whom that right is sought to be enforced. If that property or subject is in the actual possession of the person to whom the right also belongs, his act in respect of the right cannot be rightly described as enforcing that right.
In such a situation, he is said to enjoy the right and not enforce it. The import of the phrase used in the section, therefore, relates to an act done in furtherance of any right or claim of right and not to an act done in defending or maintaining the right already in the enjoyment of the person. It is thus necessary first to deckle whether the acts which, we find, the accused have done, fall under the first of these categories mentioned by us or the second, for which, it is necessary to decide whether the right to the usufruct of the trees in question belonged exclusively to the first accused.
At the same time, an answer to this question in favour of the first accused is not sufficient to dispose of the matter. It has further to be investigated and decided whether P. W. 1 or deceased Monu and the eye-witnesses or any of them committed any act which is an offence against body of property of the type described in Section 97 of the Indian Penal Code, against which that section confers upon the accused a right of private defence.
53. On the first question, as we have already stated, the learned Judge's conclusion was in favour of the first accused which ensured to the benefit of the fifth accused also who is the alleged purchaser of the right from him. Apart from the fact that the learned Judge was not willing to believe P.W. 1's case that the trees had been planted by his grandfather and had been in the enjoyment of that grandfather and his descendants including P.W. 1, he places considerable reliance Oil the inferences available from the two panchayats which had taken place before the occurrence.
He, however, points out that these panchayats were not in the nature of an arbitration and whatever opinion the panchayatdars might have expressed was not binding upon the two parties. The learned Judge emphasizes, however, that these panchayats certainly indicate that the right claimed by P. W. 1 was being denied by the first accused and that the first accused was actually asserting alight in himself to the exclusion of the right claimed by P. W. 1.
If the legal position is that these panchayats did not amount to a final adjudication of the dispute between the parties -- it is, in our opinion, the correct view of the law, -- we are unable to follow the argument that an assertion of the right by the first accused is sufficient to conclude the case in his favour. It is obvious that the very fact that the first accused was asserting a right and denying that of P. W. 1, indicates that P. W. 1 was also asserting a right in himself and denying that claimed by the first accused.
If an assertion by the first accused Can be said to lead to a conclusion in his favour, it can equally well be said that a similar assertion by P.W. 1 is sufficient to lead to a conclusion in favour of P.W. 1. The simple position, therefore, is that there was an assertion on both the sides coupled with a denial by each of the assertion of the other.
The learned Judge has stated that according to the Mohammedan Law, the heirs of the original lessee Khasim Beary would be his children, viz. P. W, 1's mother Ajjamma, her sister Alima and her brother Padil Hammad Beary and that P. W. 1 could not claim any right by succession. Equally so Badava Kunhi Beary who is only a husband of one of the heirs Alima cannot be said to have acquired any right by succession to the original lessee Khasim Beary.
On the basis of the Mohammedan Law of succession, the position of Badava Kunhi Beary is no different from, or no better than, that of P. W. 1. Nor can the admitted fact that after the departure of P. W. 1's father Sadhu Beary from the property subsequent lease deeds were executed by Badava Kunhi Beary, be said to be conclusive against the claims of P. W. 1. The admission Ex. D-2 of P. W. 1 relied upon by the accused, itself indicates that for a period of two years after the departure of Sadhu Beary and before the arrival of Badava Kunhi, P. W. 1, his mother and his brothers continued in occupation of the property without executing any lease deed.
It is not suggested that during that period P. W. 1 was treated as a trespasser. Nor is there any material on record to suggest that he was subsequently treated as a trespasser. The positive statement of the first accused in his examination under Section 342 of the Code of Criminal Procedure, is that at the time of his purchase, Badava Kunhi was in possession and P. W. 1 was not in possession.
This is belied by the evidence on record which clearly indicates that P.W. 1, his mother and his brothers continued to occupy, right up to the date of the trial itself, one portion of the house, whereas the other portion was in the occupation of Badava Kunhi Beary and his wife Alima. Another circumstance which improbabilises the theory that P.W. 1 had no rights whatsoever is that at the second of the panchayats, a suggestion was made to him to receive compensation and vacate the property.
This offer of compensation would suggest that it was in respect of the value of the tenant's improvement on the land which include the trees also. Even if it is considered as merely a payment for settlement of disputes, it would still support the conclusion that the reason for such disputes was some claim or other put forward by P.W. 1. It has been strongly argued that the fact that the mother and aunt of P.W. 1 as well as his maternal uncle Padil Hammad Beary turned hostile to the prosecution, clearly shows that they were not prepared to support the claims made by P.W. 1.
The argument, however ignores that these relations' reluctance or omission to support the claims of P.W. 1 does not destroy the fact that P.W. 1 was actually making such claims. Besides, Padil Hammad Beary took part in the first of the panchayats. The fact that he asked his nephew not to take the usufruct of the trees, indicates that his nephew was laying claim to the same. Another circumstance strongly relied upon on behalf of the first accused before us is the alleged existence of a Sod chit executed by Badava Kunhi Beary,
We have already referred to the evidence on this point which indicates that even if such a deed had in fact been executed by Badava Kunhi Beary, it was done without the knowledge of P. W. 1 who came to know of it only at or about the time of the second panchayet, just about 10 days prior to the occurrence. Unless it can be said that the entire leasehold rights in respect of the house and the appurtenant land belonged exclusively to Badava Kunhi Beary, the execution of a Sod chit by him, even if true, cannot take away the rights, if any, enjoyed by P.W. 1 as a tenant.
In the face of these clear inferences flowing from the available evidence, we do not think that it was possible on this material to come to the conclusion that the first accused had the exclusive right to the usufruct of the trees and that P.W. 1 either never had rights thereto or completely lost the same before the incident. Neither the lease deeds relating to the property nor the Sod chit said to have been executed by Badava Kunhi Beary have been produced before the Court.
Therefore, very useful material on the strength of which the exact rights of the parties before us could have been decided, is not available to the Court. One of the circumstances which entitle the accused to raise the plea of private defence, is the exclusive possession of the property or at least the right to the usufruct of the trees by the first accused. Under Section 105 of the Indian Evidence Act, the Court is required to presume the absence of that circumstance and the burden of proving the same lies upon the accused. The prosecution has been criticised for its failure to examine Badava Kunhi Beary.
It is, however, clear from the evidence of the investigating officer P.W. 22 that Badava Kurihi Beary was not available for examination till the charge-sheet was placed although he made repeated attempts to secure him, Apart from that, for the reasons stated above, it was the duty of the accused to have examined him if they wanted to prove the Sod chit with a view to establish that the possession of the trees or the right to their usufruct was exclusively with the first accused. This, they have failed to do.
54. We are therefore unable to agree with tile learned Judge's conclusion and are constrained to hold that on the evidence it has not been established that the first accused was in exclusive possession of the trees or had the exclusive right to the usufruct of the trees.
55. The next question is whether Monu, P.W. 1 or anybody else committed any act which was an offence conferring upon the accused the right of private defence. The evidence already discussed in detail discloses that except the mother of P.W. 1 who first cried out that she had been in the enjoyment of the usufruct during the last 15 years and would not allow anybody to pluck the mangoes, nobody ever offered any physical obstruction or resistance to the first accused or his men plucking the fruits from the trees. The circumstances and probabilities are also in favour of this view.
56. We have already held that P.W. 1 on being threatened on the night of Saturday the 27th of April 1957, did not think of putting up any physical right but wanted to indent upon the services or good offices of the patel or Monu Beary to hold a panchayet. His conduct is clearly one of a person begging for assistance for settlement of a dispute and not of a person collecting men or material for putting up a fight against the first accused and his men. Suggestions have been made in the course of the cross-examination of the witnesses to the effect that there is a communist inspired association of tenants called Rytha Sangha in the village.
The witnesses have also been asked whether they were not there on the land making preparations for resisting the attempts of the accused to pluck the fruits. These suggestions have been denied and no independent evidence has been placed on record nor any circumstances proved by acceptable evidence in support of these suggestions. We hold therefore that the first accused and his men encountered no physical resistance at the bands of anybody, nor could they have had any apprehension of any attack against them in the matter of plucking the fruits from the trees.
56. It follows, therefore, that there existed no circumstances in this Case entitling the accused persons to the right of private defence. In the absence of such circumstances, the facts held by us to have been clearly established by the evidence show that the accused-respondents before us acted in concert with the common object of enforcing the disputed right claimed by the first accused and through him by the 5th accused to pluck the fruits from the trees in the yard of P.W. 1 by the actual use of criminal force. All these five persons were armed with cudgels which are deadly weapons. Every one of them must, therefore, have known that grievous hurt was likely to be caused in the prosecution of their common object.
They therefore constituted themselves into an unlawful assembly and every one of them would be guilty not only of the offence of rioting armed with deadly weapons punishable under Section 148 of the Indian Penal Code but also of the offence of voluntarily causing grievous hurt punishable under Section 326 read with Section 149 of the IndianPenal Code. At the game time, for the reasons already explained by us, the evidence is not sufficient to sustain a conviction for the individual acts of accused 2 and 5 under the second charge or accused 3, 4 and 5 under the fourth charge.
57. It has been argued that this being an appeal against an order of acquittal we should not lightly interfere with the findings of the learned Judge and that we should attach value to his opinions and impressions of the witnesses whom he has seen deposing in the witness box before him. It is, however, clear from the judgment of the trial Court that the learned Judge has not fully examined and considered, as he should have, the direct evidence of the eye-witnesses bearing on the main incident which is the subject of the prosecution,Actually, there are no findings of fact as such recorded by the learned trial Judge in respect of the actual incident. On the question of the right of private defence, he has not attached value to the fact that that plea was inconsistent with the actual plea of alibi raised by the majority of the accused before him and has overlooked the most important circumstance that there was actually no resistance encountered by the accused to justify the use of force resorted to by them.
In our opinion, the accused-respondents before us have deliberately taken the law into their own hands and tried to enforce a disputed right by the use of criminal force, which is 3 matter of considerable significance to public peace and orderly life of citizens. These, therefore, are, in our opinion, substantial and compelling reasons why we should interfere with the order of total acquittal made by the Court below.
58. In the result, while we confirm the acquittal of the respondents in respect of the second and the fourth charges, we convict all the five respondents of the offence punishable under Section 148 of the Indian Penal Code and sentence each one of them to rigorous imprisonment for a period of two years in respect of it, and we also convict all the five respondents of the offence punishable under Section 326 read wife Section 149 of the Indian Penal Code, and sentence each one of them to undergo rigorous imprisonment for a period of two years in respect of it. We direct that in the case of each of the respondents the two sentences of imprisonment shall run concurrently.
59. Order accordingly.