G.K. Misra, J.
1. Appellant No. 1 has been convicted under Section 302, I. P. C. and sentenced to imprisonment for life. Appellant No. 2 has been convicted under Section 324, I. P. C. and sentenced to R. I. for one month.
2. One Rathi Mahakud had four sons - Taleswar, Boleswar, Paramananda (accused No. 1) and Bidyadhar (the deceased). On Jaleswar's death his widow Agadhoi remarried Bholeswar though the Tatter's first wife Nila was alive. Mahendra (accused No. 2) and Bhimendra (D. W. 1) are the Sons of accused No. 1. Sudam (P. W. 1) and Trinath (P. W. 10) are the sons of the deceased. On the death of Bholeswar, Nila and Agadhoi succeeded to 2.27 acres each. On Nila's death in 1958 there was litigation between Agadhoi and accused No. 1 in respect of Nila's share of 2.27 acres. To meet the litigation expenses these 2.27 acres were sold by Agadhoi to the deceased about 3 to 4 years ago.
The prosecution case is that the deceased and P. Ws. 1 and 10 had cultivated the disputed land which is a part of 2.27 acres and sowed paddy thereon in the beginning of the agricultural year 1964. On 28-7-64 they reploughed the disputed land and shitted to another piece of land. After they had reploughed, accused No. 2, D. W. 1 and P. W. 2 who was the servant of the accused then again reploughed the disputed land. The deceased protested and stopped them from further reploughing. When accused No. 2 and his men could not proceed in reploughing due to the obstacle put in by the deceased and his sons, accused No. 2 asked accused No. 1 why he was further waiting. Accused No. 1 was standing on the ridge of that very field with the gun (M. O. II). He immediately fired the gun as a result of which the deceased fell down with severe injuries to be mentioned hereinafter. P. Ws. 1 and 10 came running from the other field. While P. W. 1 was trying to pick up the deceased, accused No. 2 gave a stroke on P. W. 1's head with a Tangia causing bleeding injuries. Then P. Ws. 1 and 10 attacked the accused party with Panchan.
The defence case is that the disputed land is in possession of the accused for about 20 years. On the date of occurrence accused No. 2, D. W. 1 and P. W. 2 were reploughing. They had ploughed the land and sowed paddy thereon, in that very year as they were doing before. While they were on the field in the process of reploughing, the deceased and P. Ws. 1 and 10 entered with lathis and Tangias. The deceased stopped D. W. 1 from making further progress in reploughing. Accused No. 2 protested. The deceased directed his sons to assault the accused party. P. Ws. 1 and 10 held a Tangia each. They inflicted bleeding and multiple injuries on accused No. 2 who fell down unconscious. Accused No. 1 came running to the spot at this stage shouting that his boys had been assaulted. The deceased gave a number of lathi strokes on accused No. 1. One of the blows fell on the hammer of the gun held by accused No. 1 resulting in its explosion and causing injuries to the deceased.
The learned Sessions Judge held that the injuries on the deceased were caused by the gun (M. O. II) and were sufficient in the ordinary course of nature to cause death. He held that the death was homicidal.
On the question of possession of the disputed land he held that there was scramble for possession between both the parties. Believing the prosecution version of the story as to how the deceased was deliberately shot dead he convicted accused No. I for murder and accused No. 2 under Section 324, I. P. C. for having caused injury to P. W. 1.
3. Mr. Ray does not dispute the finding that the death was homicidal. The Doctor (P. W. 4) was of opinion that the injuries caused by gun shot were sufficient in the ordinary course of nature to cause death. After thoroughly going through the evidence we are satisfied that the concession is well founded.
A faint attempt was made by Mr. Ray that the prosecution has failed to establish that the gun shot injuries on the deceased were from the gun (M. O. II). The contention is frivolous and was rightly abandoned later on. It is the common case of the parties that there was only one gun at the time of the occurrence and that gun belonged to and was held by accused No. 1 on the spot. The finding being that the deceased died as a result of gun shot injuries, it was not necessary for the prosecution to further establish that the injuries caused by gun-shot were from the gun (M. O. II). The conclusion that the gun-shot was through M. O. II is irresistible on the common case of the parties and no further proof is necessary as is required in some cases of gun-shots.
4. The next question for consideration is whether the prosecution has established that the deceased and P. Ws. 1 and 10 were in possession of the disputed land and whether they cultivated and sowed paddy thereon in the beginning of the agricultural year 1964. P. W. 1 stated thus:
Disputed land was all along in our possession and accused persons never possessed it. My father under the kabla has purchased 2.27 acres. Out of this land the accused persons were in forcible possession of one acre two years prior to the occurrence. The disputed land is a portion of that one acre.
It is unnecessary to examine if the accused persons were in possession of the disputed land for about 20 years. It would be sufficient to say on the basis of admission of P. W. 1 that the accused were in possession of the disputed land at least for 2 years prior to the occurrence. Doubtless the deceased succeeded against accused No. 1 in the mutation case as would appear from the judgment dated 19-8-64 (Ext. 21). This does not however affect the position that the accused was in forcible possession of the disputed land despite the pendency of the mutation case. P. W. 2 was admittedly the field servant of the accused on the date of occurrence. He deposed thus:
A month before the occurrence I had cultivated the disputed land for accused No. 2. Again says Bidyadhar had raised the paddy. I have not seen him sowing the paddy. Accused No. 2 and his brother sometimes themselves do the cultivation and sowing work. I have not cultivated or sowed all the lands of accused No. 2. He had cultivated and sowed some of his lands.
It would appear from the very first sentence of the aforesaid statement that P. W. 2 was constrained to admit that in the beginning of that very agricultural season the accused cultivated the disputed land. This is directly contrary to the prosecution case. Though again he stated that Bidyadhar had raised the paddy, he was again constrained to admit that he had not seen him sowing the paddy. He did not however change his first statement that the accused cultivated the disputed land. From his admission that he did not cultivate all the lands of accused No. 2 it is clear that he was not in a position to deny that accused No. 2 and his brother might have cultivated and sowed paddy thereon before the date of occurrence. On a critical examination we are satisfied that he stated the truth when he at first blurted out that he had cultivated the disputed land for accused No. 2 a month before the occurrence. His version fully supports the defence case.
P. W. 3 admitted that he cannot say if in the years previous to the year of occurrence the disputed land was in possession of the accused persons. He does not know who was in possession of the disputed land in the years previous to the year of occurrence. In the committing Court he stated that the disputed land was possessed by Paramananda Mahakud over which the occurrence took place. Under Section 288, Criminal P. C. the evidence of a witness in the committing Court may, in the discretion of the Presiding Judge, if such witness is produced and examined in the Sessions Court, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872. He was confronted with this statement before the committing Court under Section 145 of the Evidence Act and his evidence was tendered and marked as Exhibit 36/2. On a close scrutiny of his evidence and his frank admission that he cannot say as to who was in possession of the disputed land before the year of occurrence I am satisfied that his statement in the committing Court was true. I accept his evidence in the committing Court in preference to his version in the Sessions Court. Even here he pleaded ignorance in saying that in the year of dispute he did not see the actual sowing operation in the disputed land, (His Lordship further considered the evidence of P. Ws. 9, 10, 11 and continued).
We are clearly of opinion that the accused had cultivated the disputed land and sowed paddy thereon prior to the date of occurrence and that fits in with the broad probabilities of the case that the accused were admittedly in forcible possession. At any rate, the prosecution has failed to establish that the deceased and his sons had cultivated and sowed paddy on the disputed land.
The impact of this finding on the prosecution story would be examined at the appropriate stage.
5. The next question for consideration is whether the prosecution has presented a true version of the occurrence so as to enable the Court to accept the case that there was deliberate murder of the deceased by accused No. 1 without anything being done by the deceased and his sons prior to the shooting,
The position can be best appreciated by stating the prosecution case as unfurled through P. W. 1, He stated thus ;
Then they along with Bhemendra re-ploughed the disputed land which had just been reploughed by us. Thereafter my father came to the disputed land and protesting to their action, stood in front of Bhemendra's plough which was the leading plough. Accused No. 2 asked Bhemeiidra to beat the bullocks to lead the plough but my father did not move. At this time Mahendra (accused No. 2) told his father accused No. 1 who was standing on the northern ridge 'what are you looking father at this time. He has stopped our three ploughs'.... At this accused No. 1 fired his gun at my father which struck him below the chest, on the right side. At this my father fell down bleeding and unconscious. I and my brother ran to him leaving our own ploughs. Accused No. 2 with an axe struck on my head causing bleeding injury. Then I and my brother retaliated the assault and there was a mutual scuffle between me and my brother on one side and accused Nos. 1, 2 and Bhemendra on the other side. I and my brother had each a Panchan. While accused No. 1 had a gun, accused No. 2 and his brother Bhemendra had an axe each.
P.W. 1 further stated thus:
I did not assault the accused persons or Bhemendra. My brother Trinath did not assault the accused persons or Bhemendra. My father did not assault any of the accused persons or Bhemendra.
6. P. W. 1 admits that the axes M. Os. IV and V and the lathi M.O. VI belonged to them and were seized from their house.
7. The injuries on the various persons and the weapons with which they are said to have been inflicted are enumerated here-under from the evidence of the Doctor.
Injury on P. W. 1.
One incided wound 1' x 1/8' x skin deep on the middle portion of right parietal region 4.1/2' from the middle of right zygomatic process directed anteriorly and outwards.
Though the injury was simple in nature, it was caused by a sharp weapon.
Injury on P. W. 10.
One contusion 2.1/4' x 2' on the antero medial aspect of distal end of left thigh. The injury was simple in nature and was likely to be caused by the back side of an axe.
Injuries on Accused No. 1.
1. Contusion 2.1/4' x 2' on the mid portion of posterior and lateral aspects of left arm.
2. Lacerated wound 1/2' x 1/8' x skin deep on the postero medial aspect of left forearm 4.1/2' from left wrist joint.
3. Contusion 1.1/2' x 1.1/4' around injury No. 2.
4. Contusion 1.1/4' x 1' on the left temporal region 1.1/2' from left zygomatic process.
5. Contusion 1' in diameter on the posterior part of right parietal region 5' from tip of right mastoid process.
Injuries 1, 2, 4 and 5 were simple in nature. Injury No. 3 was grievous in nature as the underlying ulna bone was fractured at the site of the injury. All the five injuries could be caused by the lathi M. O. VI. Injuries on Accused No. 2.
1. Incised wound 2.1/2' x 1/4' x depth upto scalp over the middle portion of left parietal region, situated antero posteriorly, anterior and situated 4' from the left eyebrow. The injury is situated 5' from middle of left zygomatic process.
2. Lacerated wound 3/4' x 1/8' x skin deed on the posterior part of right parietal region 3 1/2' from tip of right mastoid process.
3. Incised wound 1/4' x 1/16' x skin deep on the lateral half of right upper eyelid running horizontally.
4. Lacerated wound 3/4' x 1/8' skin deep on the medial border of dorsum of left hand.
5. Ecchymosis 4.1/2' x 1/2' over the right scapular region running outwards and upwards situated 4' from the mid-line and back.
6. Ecchymosis 4' x 1/2' parallel with and 1.1/2' medial to injury No. 5.
7. Ecchymosis 3' x 1/2' close to and parallel with injury No. 6.
8. Ecchymosis 3.1/2' x 3/4' on the left shoulder running anteriorly and medially.
9. Contusion over the whole of dorsum of left hand,
10. Contusion 2.1/2' x 2' just above the mid portion of spine of left scapula.
11. Ecchymosis 2' x 3/4' on anterior aspect of mid portion of left arm,
12. Contusion 3' x 2' on the mid portion of posterior aspect of left forearm.
13. Contusion 3' x 2' on the distal half of anterior aspect of right arm.
All the injuries were simple in nature. Injuries 1 and 3 were caused by sharp weapon and the rest of the injuries were caused by blunt weapon, Injuries 1 and 3 could be caused by any of the two axes M.Os. IV and V. Injuries 2, 4, 9, 10, 12 and 13 were possible by the blunt sides of the two axes M. Os. IV and V. The rest of the injuries were possible by the handle of any of those two axes. Injuries 1, 2 and 3 were situated on vital parts of the body, namely, the head and the eye.
Injuries on D. W. 1.
1. Incised wound 1' x 1/8' x skin deep on the mid portion of left parietal region 4' from the middle of left zygomatic process.
2. Incised wound 1/2' x 1/16' x skin deep on the anterior part of the left parietal region 4.1/2' from the middle of left zygomatic process.
3. Contusion on the dorsal aspect of proximal phalanx and metacarpophalangeal joint of right index finger.
Injuries 1 and 2 were possible by the sharp side of any of the two axes M. Os, IV and V, and injury No. 3 was possible by the blunt side of any of those two axes. Injuries 1 and 2 were situated on the head.
8. The essential features arising out of the aforesaid evidence may be summed up. They are-
(1) There was no assault or Marpit before the deceased was shot by accused No. 1 with his gun and the mutual scuffle began only after the deceased fell down.
(2) The deceased and P. Ws. 1 and 10 had no axes with them. P. Ws. 1 and 10 had only Panchans (sticks) in their hands.
(3) In this scuffle there were 3 persons on the side of the accused, namely, Accused No. 1, Accused No. 2 and D.W. 1, and 2 on the side of the deceased, namely, P. Ws. 1 and 10.
(4) The prosecution does not present a positive and clear picture as to how the injuries were sustained by the accused and D. W. 1 though they vaguely refer to a mutual scuffle subsequent to the gun-shot.
(5) The injuries on either side were inflicted nearabout the same time, that means, during the occurrence.
(6) The incised injuries on the accused No. 2 and D. W. 1 could be caused by the sharp sides of M. Os. IV and V which admittedly belonged to P. W. 1 and were seized from his house. Many of the other injuries could be caused by the blunt sides of the same axes.
9. These features highly improbabilise the prosecution version that the mutual scuffle took place after the gun-shot. 21 injuries were inflicted on accused Nos. 1 and 2 & D. W. 1. One was grievous. There were 2 incised injuries on accused No. 2 & 2 others on D.W. 1. It is difficult to imagine that the large number of injuries were inflicted by the accused party on themselves with their own axes and sticks. The prosecution thus suppresses the fact that T. Ws. 1 and 10 were armed with sharp cutting weapons and inflicted incised injuries. The fracas was not amongst large number of persons, but was confined by the prosecution to 5 persons only and by the defence to 6 persons. In that context the denial of P. W. 1 that he P. W. 10 and the deceased did not assault the accused party can hardly be believed.
10. The defence version is that while they were on the field in the process of reploughing, the deceased and P. Ws. 1 and 10 entered with lathis and Tangias. The deceased stopped D. W. 1 from making further progress in reploughing. On accused No. 2 protesting, the deceased directed his sons to assault the accused party. P. Ws. 1 and 10 inflicted the multiple injuries on accused No. 2 and D. W. 1. The deceased gave a number of lathi strokes on accused No. 1, One of the lathi strokes fell on the hammer and the gun accidentally fired as a result of which the deceased fell down, D. W. 1 stated that the hammer of the gun was bent by the lathi stroke and the Chapa (flattened iron piece) came out. There is no defence evidence that the hammer and the gun were not in that condition prior to the occurrence. We are not prepared to accept the defence version that the gun-shot was accidental. There is no mark of lathi stroke on the hammer or on the gun.
The aforesaid conclusion does not however improve the position of the prosecution. We would proceed on the assumption that the gun was deliberately aimed and fired at the deceased. That bald conclusion by itself would not entail any conviction under Section 302, I. P. C. unless the Court gets a true picture of the story and reaches the conclusion that the accused had no right of private defence of body so as to cause death.
Such a view does not amount to throwing of the onus of proving the general exception under Chapter IV, I. P. C. on the prosecution contrary to Section 105 of the Evidence Act. The view is based on the theory that the Court must always get a true picture of the fracas. If after distinguishing the chaff from the grain the essential thread of the prosecution case is proved, a conviction would follow. If, on the other hand, despite utmost care and scrutiny it is difficult to find out the truth and the defence version cannot be discarded as being reasonably true, the accused is entitled to benefit of doubt. Law on the point has been fully discussed in ILR 1962 Cut 360, Bising Saura v. State, and it is unnecessary to repeat the same.
11. The multiple injuries on the accused party and a single injury on each of P. Ws. 1 and 10 probabilise the defence version that the members of the prosecution party were the aggressors who indiscriminately assaulted accused Nos. 1 and 2 and D. W. 1, being armed with axes and sticks. In sequence of events the gun-shot must have come last. It is difficult to visualise that after the gun-shot P. Ws. 1 and 10 would still venture to assault the accused party and would not run away in fear of their life. The injuries on accused Nos. 1 and 2 and D. W. 1 must have preceded the gun-shot.
12. The prosecution story that the deceased and his sons cultivated the disputed land and sowed paddy thereon has not been established, Even if their version that they reploughed the land first is accepted, they committed the offence of trespass and mischief. Their act of giving resistance to the reploughing by the accused party was an act of wrongful restraint. They were the aggressors. The accused had right of private defence of body under Section 97, I. P. C. Under Section 100, I. P. C. the right of private defence of body extends to causing of death if there is reasonable apprehension that grievous hurt would be the consequence of the assault.
If the defence version of the story that the deceased and P. Ws. 1 and 10 assaulted them first indiscriminately be reasonably probable though that is not proved to be true, the accused are entitled to right of private defence of body so as to cause death inasmuch as the multiple injuries inflicted on them with axes were enough to create a reasonable apprehension in their mind that grievous hurt would otherwise be the consequence. In fact there was one grievous hurt on accused No. 1. The other injuries on accused No. 2 and D. W. 1, though not grievous, were very serious and on vital parts of the body. Such an assault on the accused was bound to create reasonable apprehension in their mind that grievous hurt, if not death, would be the consequence.
13. On the aforesaid analysis the true state of affairs on the materials on record, as appears to us, is that the accused advanced a false story that the gun-shot was accidental. The other part of their story that they were attacked first and were given various injuries indiscriminately appears to be reasonably true. At any rate, the prosecution has suppressed the true version of the story and the Court is not in a position to arrive at the truth so as to discard the defence version as not being reasonably true.
A conviction under Section 302, I. P. C. cannot be based merely on the bald conclusion that the deceased died as a result of the gun-shot deliberately given by accused No. 1.
The evidence of the other eye-witnesses is of the same pattern as of P.W. 1. No useful purpose will be served by discussing their evidence. As the true picture is not before the Court, the conviction of accused No. 2 also cannot be sustained,
14. We are satisfied that the prosecution has failed to establish the case beyond reasonable doubt. The conviction and sentence passed on the appellants are accordingly set aside and the appeal is allowed. The appellants be set at liberty forthwith.
B.K. Patra, J.
15. I agree.