Holmwood and Ryves, JJ.
1. This is an appeal by Baijnath Dhanuk and six other persons against the convictions and sentences passed by the Sessions Judge of Patna, who, agreeing with the unanimous verdict of the jury, sentenced Baijnath Dhanuk, Ghansyam Dhanuk and Ganouri Dhanuk to two years' rigorous imprisonment, and Mudhu Dhanuk, Dular Dhanuk, Teja Dhanuk and Bijai Dhanuk to one year's rigorous imprisonment each, under Section 147 of the Indian Penal Code. They were also bound down to keep the peace in Rs. 300 for one year.
2. It appears on the allegation of the maliks that they had, at the time of partition, six or seven years ago, ousted the Dhanuks, who admittedly were the cultivating tenants of the lands in dispute, and the maliks in exercise of their alleged right were cutting some unripe musouri with the aid of their servants, who do not seem to have been armed with anything more formidable than short sticks. The labourers, who were cutting musouri, must have had some kind of cutting instruments for the purpose of reaping the crop. The allegation was that 100 or 200 of the Dhanuks, consisting of the men of the village which claims the land, and some related Dhanuks belonging to another village, came armed, one Ram Sahai with a sword, one Ghansyam with a garasa, one Ganouri with a lobanda and the rest with lathies, and attacked the malik's men. On the order of Baijnath, Ram Sahai stabbed the deceased in the vitals with a sword, and he fell on the ground. In his dying declaration the deceased named the seven men before us and Bulak and Dahi, the two men, who were not on their trial before the Court of Sessions. He named no others. The Jury convicted all these men under Section 147. They also convicted Ram Sahai under Section 326 of the Indian Penal Code. The appeal of Ram Sahai. was rejected by a Division Bench of this Court on the ground that there could be no possible doubt that he at any rate exceeded the right of private defence. The present appeal appears to have been admitted on the ground, which is the only ground now taken by the learned Counsel for the defence, that the Judge ought to have told the Jury that, if the accused were justified in resisting the theft of their crops, they could not be considered as members of an unlawful assembly, on the common object charged, namely, to assert a right on the land claimed by the maliks, because some members of that assembly might have exceeded the right of private defence. Now this, if established, would be a very good ground indeed for this appeal. But it seems to us that in no less than two passages in his charge to the Jury, the learned Judge has drawn the attention of the Jury to this point, and on the second occasion he spoke most specifically. We, of course, do not know how much he may have enlarged upon it, but these are only the heads of charge. He commences by pointing out to the Jury that, if they are not satisfied that the crop was Raffiuddin's, and find in favour of the accused, then the latter had undoubtedly the right of private defence against the landlord's emissaries, and were justified in interfering and removing the crop themselves. But the right is strictly a limited right, and, if it is exceeded, the benefit of it as a plea is lost.' He goes on to say' the onus is on the accused to show not only that he was exercising the right but that he did not exceed it, and the onus may be discharged without adducing independent evidence.' He, therefore, evidently considered that each man had to establish his case for himself. Later on, after explaining the duties of the Jury and the law on the subject, he says to the Jury 'having found the actual facts for yourselves you must proceed in the light of these remarks to decide whether the accused exceeded the right in this case. If you find that the right was exceeded, then you should go on to consider the evidence of participation against each one of the accused individually.' He then proceeds to summarise the evidence against each of them. The consideration of participation against each, which the learned Judge enjoins upon the Jury, is obviously the consideration upon Which they had to decide, if the accused had exceeded the right of private defence, or rather, if the right of private defence had been exceeded by all or any of them. There is, therefore, clear indication in this passage that the Judge did warn the Jury not to place all the accused in the same category in respect of this right. But at the end of his charge he gave them a still more decided warning. In dealing with the case of Ram Sahai he says you should also consider the question of the right of private defence with reference to the special and separate charge against Ram Sahai. Is he personally protected by that right as explained above You may find that the rioters generally did not exceed their right, but it does not follow that Ram Sahai did not exceed his, if he acted in the manner alleged against a person armed apparently with at most a small stick.' It is perfectly clear from this passage that the Judge drew the necessary distinction between persons, who had used weapons and used them in excess of the right of private defence, and persons about whom it was open to the Jury to find that they had not exceeded that right. It does not, therefore, appear to us that there was a misdirection. But we think it is perfectly clear that the Jury were moved to convict the persons they did by the fact that these were the only men, who were mentioned in the dying declaration of the deceased, and in connection with a ruling of this Court, which has been cited to us by the learned Counsel for the appellant, this view of the Jury becomes somewhat important. In In the matter of Kalee Mundle (1882) 10 C.L.R. 278, 280, a Division Bench of this Court observed: 'when individual members of that assembly exceeded their right of private defence, did it become an unlawful assembly within the definition in Section 141 of the Indian Penal Code 1 Such a conclusion could, be supported, if the Judge had found under Section 142of the Indian Penal Code, that, all or some of the ryots, having become aware that the right of private defence had been exceeded by some members of the assembly, continued in it.' In that case there was no indication that they did. In this case the Jury evidently were moved by the most patent consideration that these were the men, whom the deceased had seen and identified, when he was lying on the ground mortally wounded, under the order of the first accused, by Ram Sahai. He actually saw these men standing so near to him that he could identify them. This would lead to an inference by the Jury that there was an unlawful assembly, and that these men continued in the assembly, and aided and abetted the persons, who exceeded the right of private defence. As a matter of law we are inclined to hold that Baijnath, who gave the orders upon which Ram Sahai used a sword, would not be protected by any right of private defence, and it must be held that he exceeded that right. There is also another of the appellants, Ganouri Dhanuk, against whom there was evidence before the Jury that he used a lobanda (iron-shod lathi) upon the hand of one of the persons present. For these reasons we think that there was no misdirection, and that, even if the Jury thought that the remainder of the accused had the right of private defence, they were fully justified in finding that these seven men had not that right, or continued in the unlawful assembly after they knew that the right of private defence had been exceeded. We may mention that the number of persons acquitted by the Jury, possibly on the ground that they were acting in the exercise of the right of private defencey was 28 out of 36 charged before them. It is, therefore, clear that the Jury must have had special grounds for bringing in the verdict they did against these seven persons, and we cannot assign any other ground than that we have just now indicated.
3. The appeal will be dismissed, and the accused will serve out the rest of their sentences.