1. This is an appeal by the Superintendent and Remembrancer of Lagal Affairs, Bengal, against an order of the Additional Sessions Judge of Midnapur, dated, 7th July 1933, by which he acquitted one Bhagirath Mahato and his three sons Uma Charan, Mahesh and Mahinti in respect of the charges Under Sections 147, 342/34 and 323, I.P.C. on which they had been tried. The complainant, a certain Mr. Crawley, being a European British subject, the trial was held under the provisions . of Section 446, Criminal P.C, the jury being chosen in the manner laid down in Section 275 of that Code. At the conclusion of the trial the jury, by a majority of 3 to 2 found all the accused not guilty in respect of all the charges, and the learned Additional Sessions Judge, accepting the verdict of the majority of the jury, recorded an order of acquittal. It may here be observed that two of the respondents, namely, Bhagirath and Mahesh, died during the pendency of this appeal, so the appeal is now only in respect of the other two respondents, Uma Charan and Mahinti.
2. The appeal purports to have been preferred both Under Section 449 and Under Section 417, Criminal P.C., and a preliminary point has been taken on behalf of, the respondents to the effect that the appeal is barred by limitation in so far as it purports to be an appeal under the former section, that is, in so far as it purports to be an appeal on the facts. The ordinary period of limitation for appeals to the High Court under the Criminal Procedure Code is 60 days, vide Article 155, Schedule 1, Lim. Act, but an exception is made in respect of appeals from orders of acquittal, the period of limitation for which has been fixed at six months Under Article 157. It is however contended that Article 157 only applies to appeals Under Section 417, Criminal P.C, and not to appeals Under Section 449, Criminal P.C, and that the period of limitation for appeals under the latter section is the period , laid down by Article 155, namely 60 days.
3. This contention can only prevail if it be held that the right of appeal in a case tried by jury under the provisions of Chapter 33, Criminal P.C, is created by Section 449 of that Code, and it is in my opinion impossible; so to hold. The right of appeal against an order of acquittal is created by Section 417 of the. Code, and Section 449, in its application to appeals against acquittals, merely has the effect of enlarging the scope of such appeals in certain classes of cases. The present appeal is an appeal against an order of acquittal, and the effect of Article 157 Schedule 1, Lim. Act, is to fix the period of limitation in respect of such appeals at six months in all classes of cases, whatever may have been the form of trial and whatever may be the scope of the appeal. In this view of the matter, it must be held that the present appeal, having been filed within six months of the date of the order appealed against is not barred by limitation, and that, by reason of the provisions of Section 449, Criminal P.C, its scope extends to ques tions of fact as well as to questions of law.
4. Coming now to the facts of the case, these are, for the most part, not seriously disputed, and are briefly as follows: Bhagirath Mahato was a tenant under the Midnapur Zemindary Company in respect of a large jote comprising a number of plots of land, including three nij-jote plots in Mouza Baliasole, bearing Settlement Plots Nos. 183, 195 and 434. On 25th April 1932 the entire jote was purchased by the company at a sale held in execution of a decree for rent. The sale was confirmed in due course, and a gale certificate granted to the company, and on 12th October 1932 possession was delivered to the company of the entire jote, including the three nij-jote plots referred to above. Mean while the judgment-debtors, Bhagirath and his sons had, despite the purchase of the jote by the decree holder company, grown paddy on the three nij jote plots, and these crops were still standing on the land at the time of the delivery of possession.
5. On or about 11th December 1932 Bhagirath and his sons cut and removed the paddy grown by them on Plot 183, and stored it in the Khamar adjoining their homestead, which was situated at a distance of about one mile from the land in question. On being informed of this, Mr. Crawley, one of the Assistant Managers of the Company, had the paddy on the other two plots, Nos. 195 and 431, reaped by his own men and removed to the Company's cutchery. This was on 12th and 13th December, and on the latter date, Mr. Crawley, after supervising the work of cutting and removing the crops from plots 195 and 434, proceeded to the house of the accused with a view to recovering possession of the paddy that had been cut and removed by them form plot 183 on 11th. While engaged in this attempt, he and his four cartmen were set upon by Bhagirath and his sons and others, some 15 or 16 in all; the cartmen were assaulted and ran away, abandoning their carts, while Mr. Crawley himself was thrown to the ground, tied hand and foot, and kept under guard for several hours until rescued by men from the cutchery who had received information of what had occurred. It should also he stated here that at or about the time of the attack on Mr. Crawley and his cartmen, it was noticed that a shed adjoining Bhagirath's house was on fire, and that Uma Charan then and there charged Mr. Crawley with having set fire to it, a charge that Mr. Crawley indignantly repudiated.
6. By the time Mr. Crawley was releasad it was about 8-30 p. m. and he spent that night (the night of the 13th) at the Company's cutchery at Jaipur, which is about 5 miles distant from the place of occurrence. On the following day he went first to Godapiasal, where he informed the Manager of the Company of what had occurred; then to Midnapur where he had his injuries examined by the Civil Surgeon and finally to the Salbani P.S. where he wrote out and made over to the A.S.I. in charge a brief account of the events of the previous day. This was at about 7-30 p. m. on the 14th but in the meantime, at about 2 p. m. on that day, accused Uma Charan had appeared at the Thana and had made a statement to the A.S.I., who referred him to Court. Neither Uma Charan nor any of the other accused, however, filed any petition in Court, and after the usual police investigation, in which Mr. Crawley's written report to the A.S.I. at Salbani P.S. was treated as the First Information, Bhagirath and his three sons were sent up with a charge sheet, and were in due course committed to the Court of Session for trial with the result already stated.
7. The main facts, as summarised above, are well established by the evidence adduced at the trial, and have not been seriously disputed. The defence of the accused was, and is, that whatever they did, they did in the exercise of the right of private defence of their property, namely the paddy that they had grown on Plot No. 183 and had cut and removed and stored in their Khamar, They also relied oh Section 59, Criminal P.C, in justification of their action in tying Mr. Crawley up, their contention being that they did so with a view to his being taken to the Thana. As regards the fire that broke out in their homestead at the time of the occurrence, their case was that this was the work of Mr. Crawley, and they relied on this incident in further justification of their action alleging that it was necessary that Mr. Crawley should be placed under restraint and so prevented from doing any further damage. These contentions were sought to be supported at the trial by suggestions to the effect that Mr. Crawley had appeared at the house of the accused without any warning, armed with a revolver and accompanied by a large number of coolies and cartmen, and had proceeded to loot the paddy and to set fire to the accused's house. There is however not a vestige of evidence in support of these allegations, and the appeal has been argued before us on behalf of the accused, on the footing that Mr. Crawley was unarmed and was accompanied only by his four cartmen, and that he relied solely on his personal prestige and authority to compel the accused to surrender the paddy, and not on any force or show of force.
8. On the side of the prosecution, considerable importance appears to have been attached to that portion of Mr. Crawley's evidence in which he stated that he had met Bhagirath and Uma Charan on the 12th when he was supervising the cutting of the paddy on the other two plots, and that, on his promising to consider the question of letting them have a half share of the paddy of all three plots and of resetling the land with them, they had agreed to return the paddy they had cut and removed from plot No. 183, According to Mr. Crawley this arrangement was confirmed by Uma Charan on the following day when he (Mr. Crawley) went to accused's house to get the paddy, and Uma Charan himself pointed out the stack of paddy in question among the other stacks in the accused's Khamar. It was not till the carts had been loaded up and the bullocks were about to be yoked that the accused suddenly turned round and refused to allow the paddy to be removed, and attacked Mr. Crawley and his cartmen in the manner already described. Mr. Crawley's evidence regarding the alleged consent of the accused to the removal of the paddy has been characterised by the defence as false, and as haying been concocted with a view to meeting the plea of private defence raised by the accused, and attention has been drawn to the fact that there is no mention in the First Information of the discussion that is said to have taken place between Mr. Crawley and the accused on the 12th. This omission does not seem to me to be of any great importance, for Mr. Crawley's attitude being that the paddy belonged to the Company and that he had the right to take it; it was not to be expected that he would think it necessary to mention, in the report he filed at the Thana, the fact that Bhagirath and Uma Charan had on the day before the occurrence given their consent to its removal. It has also been contended on behalf of the accused that if the latter had really given their consent to the removal of the paddy, there was no reason why they should suddenly change their attitude and refuse to allow it to be removed. I am not prepared to accept this contention, for the apparent inconsistency in the conduct of the accused is far outweighed by the extreme improbability of Mr. Crawley sending only four carters to take possession of the disputed paddy and going alone and unarmed to supervise its removal, if the accused had not previously given their consent. Attention has also been drawn to the facts that one of the prosecution witnesses Jogendra Mahato, has contradicted himself as to whether Uma Charan first protested against the removal of the paddy when the carts were being loaded up inside the Khamar, or after the loaded carts had been takan out of the Khamar and the bullocks were about to be yoked, as stated by the other witnesses to the occurrence. This point does not seem to me to be of any real importance and the discrepancy in the evidence to which attention has been drawn is probably more apparent than real. On the other hand all the witnesses to the occurrence are agreed that. Uma Charan himself pointed out the stack of paddy that was to be removed, to Mr. Crawley, and although there is no clear mention of this fact in the First Information, it is stated therein that Uma Charan gave his consent to the carts being loaded up, which comes to very much the same thing. The majority of the jury appear to have disbelieved Mr Crawley's evidence regarding the alleged consent, and the learned Additional Sessions Judge, who evidently regarded this as the crucial point in the case, was not prepared to disagree with them, and accordingly accepted their verdict. I am however clearly of opinion, for the reasons given above that Mr. Crawley's evidence ought to be accepted in its entirety, and that the accused had, as stated by him, actually given their previous consent to the removal of the paddy.
9. The question of previous consent has however, in my opinion, been given quite unnecessary prominence, in view of the fact that the paddy belonged to the Company and had been wrongfully cut and removed by the accused. Moreover even the accused's bastu and the adjoining Khamar, in which the paddy was stored, had been purchased by the Company in execution of their decree, along with the rest of the accused's jote, as appears from the evidence of the Company's Tahsildar, prosecution witness No. 13. In these circumstances it is impossible to hold that the accused had any right of private defence in respect of the paddy in question, whether they had or had not given their previous consent to its removal. The paddy did not belong to them but to the Company, and they had no right to prevent its removal by the Company's agent, Mr. Crawley, Moreover, the right of private defence of property only comes into operation when certain specified offences against property are committed, or attempted to be committed and once it is held that the paddy in question belonged not to the accused, but to the Company, it becomes clear that neither Mr. Crawley nor the carters had any dishonest intention, that they neither committed nor attempted to commit any of the offences against which the law gives a right of private defence, and that the accused are therefore not entitled to plead that in driving away the carters and in assaulting and tying up Mr. Crawley, they acted in the exercise of the right of private defence. In this view of the matter, the contention that has been urged before us on behalf of the respondents to the effect that criminal law concerns itself mainly with actual physical possession, whether lawful or unlawful, and that the accused were, rightly or wrongly, in actual physical possession of the paddy in question and were therefore entitled to defend their possession, becomes irrelevant and need not be further referred to.
10. The proposition that the right to the growing crop passes by the sale of the land, in the absence of an express provision to the contrary, and the connected proposition that, in the case of a Court sale, the right to possession of the crop accrues from the date of delivery of possession of the land, hardly requires to be supported by authority, but if authority be needed it is sufficient to refer to, Ramlinga v. Samiappa (1890) 13 Mad 15 and Abinash Chandra Sarcar v. Atul Krishna AIR 1919 Cal 588. The learned Additional Sessions Judge has entirely misconceived the legal position with regard to this point, for in his charge to the jury I find the following passage:
The defence further argued that the paddy was grown by the accused and that the accused had a right at least to a share of it. This is admitted by the prosecution. The accused certainly had a right at least to a share of the paddy, but if they themselves consented to return it, it was no offence for Mr. Crawley to order his cartmen to take delivery of it. If however you find Mr. Crawley went without being asked to do so and took possession of the paddy, you will have to hold that the accused were acting in the exercise of the right of self-defence.
11. For the reasons already given, this direction must be held to be entirely erronecus, and it may well be that it was by reason of this erroneous direction on the part of the Judge that the majority of the jury were led to return a verdict of not guilty. The learned Additional Sessions Judge has clearly misdirected both himself and the jury on the above point, and having regard to the prominence that was given to this point at the trial I cannot but hold that, by reason of the said misdirection both the verdict of the majority of the jury and the order of the Judge accepting the majority verdict, lose much of the weight that would otherwise attach to them.
12. Another serious defect in the charge to the jury is that the learned Additional Sessions Judge omitted altogether to consider whether the right of private defence of the property, if it had ever existed at all, was still in existence at the time when Mr. Crawley was attacked and tied up. It appears that the cartmen had already abandoned their carts and run away, and that there was therefore no further possibility of the paddy being taken away by force. This being so, it must be held that the right of private defence of property, assuming such a right to have existed at the earlier stages of the occurrence, was no longer in existence at the time of the attack on Mr. Crawley, and the jury would probably, or at any rate possibly, have so held, if they had been properly directed on the point.
13. Apart from all this, it is clear that in tying up Mr. Crawley and in keeping him tied up for several hours, the accused used far more force, than the circumstances of the case required, whatever view be taken of those circumstances Section 59, Criminal P.C, is of no avail to the respondents in this connexion, for that section only authorises a private person to make an arrest in certain circumstances which have no application to the present case. The attempt to remove the paddy was not an offence at all, and there is no evidence whatever in support of this contention that the outbreak of fire in the house of the accused was caused by Mr. Crawley. Indeed the circumstances are rather such as to preclude such a possibility, and to raise a strong suspicion that the fire was started by some one on the side of the accused. Moreover the evidence lends no support whatever to the theory that Mr. Crawley was seized and tied up with a view to his being handed over to the police, and the two Choukidars who were examined as witnesses in the case have emphatically denied that they were ever asked to take Mr. Crawley to the Thana. It further appears that no mention whatever of the incidents that had taken place at the accused's house on the 13th, was made by Uma Charan when he went to the Thana the following afternoon. The General Diary entry shows that the only complaint he made was with regard to the reaping of the paddy by the Company's men. It has been suggested that what he really stated at the Thana was that Mr. Crawley had looted his paddy and set fire to his house and had been arrested and kept in the custody of the Choukidars and that all this was suppressed by the A.S.I. in collusion with the Company's officers. There is no evidence whatever in support of this suggestion, and I have no hesitation in rejecting it as false.
14. I am clearly of opinion that there has been a serious miscarriage of justice in this case and that the order of acquittal cannot be allowed to stand. The plea that whatever the accused did they did in the exercise of the right of private defence, has completely failed, and on the proved and admitted facts it must be held that the accused are guilty of the offences with which they have been charged.
15. I would accordingly allow the appeal and set aside the order of acquittal in respect of the two surviving respondents, Uma Charan and Mahinti. Uma Charan was the prime mover in the affair and in his, case a fairly severe sentence is called for. I would convict him Under Sections 147,342/34 and 323, Penal Code, and sentence him to nine months' rigorous imprisonment under each of the two former sections, the sentences to run concurrently, no separate sentence being passed Under Section 323, Penal Code. Mahinti appears to have played a comparatively unimportant part, and no specific acts have been attributed to him individually. I would convict him Under Sections 147 and 342/34, Penal Code, and sentence him to three months' rigorous imprisonment under each section, the sentences to run concurrently. Respondents Uma Charan and Mahinti must now surrender to their bail and serve out their sentences.
16. I agree.