1. This case arises out of a riot that is said to have taken place over the cutting of paddy, in the course of which one of the members of the complainant's party was killed.
2. At the trial both sides claimed to have been in possession of the land and to have grown the disputed crop, and each party alleged that the members of the other party had been the aggressors.
3. In his charge to the jury the learned Additional Sessions Judge discussed the evidence regarding possession, and the evidence regarding the details of the actual occurrence at considerable length, and he expressly left these matters to the decision of the jury.
4. As regards the question of the right of private defence, however, the Judge expressed himself in the following terms:
The accused have not set up the right of private defence in answer to the charge against, them, and there are not also circumstances appearing upon the evidence in the case justifying the exorcise of that right. The learned Public Prosecutor had argued the matter by way of anticipation, but as it is not necessary for you to consider in this casa, I do not think it necessary to place the law on the subject before you.
5. This, in our opinion, amounted to a misdirection such as makes it necessary that the case should be sent back for retrial.
6. It is true that none of the accused in their statements in Court, expressly claimed to have grown the disputed crop or gave their own version of the occurrence or put forward the plea that they had asked in the exercise of the right of private defence; most of them merely stated that they were innocent and that false evidence had been given against them out of enmity, while some of them said that they had been elsewhere at the time of occurrence. The nature of the defence is, however, to be ascertained not only from the statements of the accused persons themselves, but also from the trend of the cross-examination of the prosecution witnesses and from the arguments of the accuseds pleader at the close of the trial. To hold otherwise would be to run the risk of grave injustice being done in certain classes of cases, for it is a matter of common experience that ignorant people who have been directly or indirectly concerned in causing a man's death will seldom admit that they have been so concerned, even though death may have been caused in the lawful exercise of the right of private defence. Now it is clear from the trend of the cross-examination of the prosecution witnesses in the present case, that the defence sought to be set as by the accused's pleader was that the alleged delivery of possession to Bani Kanta Chakravarti and his brothers in execution of a decree of the civil Court, had never actually taken place, that the disputed crop had been grown by the' accused Mazaffar and others of his party, and that the occurrence had taken place not in the manner alleged by the prosecution, but in consequence of the complainant and his party having come to the land with a large body of armed men and having attempted to cut the paddy by force. The case for the defence as put forward by the accuseds' pleader in the course of his argument has nowhere been clearly stated in the charge to the jury, but it would appear from various passages in the charge that it was of the nature indicated above, and it is hardly conceivable that the accuseds' pleader would not have pursued his argument to its logical conclusion, and would not have expressly raised the plea of private defence.
7. The mere fact of this plea having been so raised, would not, however, have made it incumbent on the Judge to place this aspect of the matter before the jury, unless there was some evidence in support of the plea.
8. There is, however, some such evidence on the record, not only as regards the question of possession but also as regards the nature of the actual occurrence, (there is, for example, the deposition of prosecution witness Kamini Kumar Das before the committing Magistrate), and lit ought in our opinion, to have been left to the jury to decide on a consideration of the evidence as a whole, whether the existence of the right of private defence had or had not been established, and if so, what would be the effect of the existence of that right on the question of the liability of the various accused persons in respect of the charges on which they had been tried.
9. The only question that remains to be considered is whether the misdirection referred to above, has in fact occasioned a failure of justice. In our opinion its has in the sense that it has had the effect of depriving the accused of their undoubted right to have the question of the existence of the right of private defence, and the other questions of fact arising therefrom, decided by the jury.
10. In this view of the matter, the convictions and sentences must beset aside, and the case must go back for retrial.