1. In this case, five accused persons Asgar Mandal, Nasir Pramanik, Mahir Pramanik, Masir and Rahim Baksh were put on their trial before the Sessions Judge of Rajshahye and a Jury on charges under Sections 147, 148, 326, 307, 326/109 and 326/149, Indian Penal Code. The Jury returned a unanimous verdict of 'not guilty' on all the charges. As the charges under Sections 147, 148 and 149, Indian Penal Code, turned upon the question of possession of the land where the occurrence took place and the evidence on that point was conflicting, the learned Judge accepted the verdict with regard to those charges and acquitted all the accused of offences under Sections 147, 148 and 149. This had the effect of acquitting Masir and Rahim Baksh altogether. The learned Judge was of opinion that the verdict on the charges under Sections 326, 307 and 326/109 was erroneous. He has accordingly referred the case of the three accused Asgar Mandal, Nasir Pramanik and Mahir Pramanik to this Court for decision under Section 307, Criminal Procedure Code.
2. The case for the prosecution was that in the village of Chak Mabadeb there were two factions, the co-sharers-in-interest in that village being on bad terms. The party headed by Elahi Bux (P. W. No. 1) claimed to have been in possession of a small piece of land, on which a cow-shed had existed up to two years ago and which since then had been cultivated by them by growing ole, man and other vegetables. The other party headed by the accused Nasir Pramanik claimed to have been in exclusive possession of this piece of land and they alleged that they had on the Wednesday before the occurrence in question erected a hut on that land. The prosecution case was that it was only on Friday, i. e., the day of the occurrence, that the accused's party came to erect the hut bringing poles, ropes and axes in order to put it up. Undoubtedly a dispute arose with regard to the erection of the hut, and, according to the prosecution case, Asgar Mandal, who was with Nasir Pramanik and his party, struck at Karim Baksh (P. W. No. 2) and felled him to the ground
3. The injury inflicted was somewhat serious. Karim Baksh was in hospital for over a month, and at one time his life was in danger and his declaration was accordingly recorded by a Magistrate. The medical evidence shows that, though the injury to his head was cured, he was suffering from facial paralysis which will probably be permanent and his left ear which was cut in two will always bear the soar.
4. The prosecution version of the story indicated an unprovoked attack by Asgar Mandal on Karim Baksh, who was doing no more than taking hold of a post and preventing the accused's party from erecting the hut. That, however, depends on which party was in possession. Now, though this question of possession was not clear upon the evidence, still evidence was given on both sides with regard to it and the question was rightly left to the Jury by the Judge. It may be, therefore, that the Jury considered that the possession of Nasir and his party had been established. There was certainly evidence on the record which would account for such a conclusion, though there was evidence also the other way.
5. Assuming that the Jury was of opinion that possession was with the accused, the question would arise, and that would also be within the province of the Jury to decide, whether the accused were exercising a right of private defence. The right of private defence of property would extend to the causing of hurt by Asgar Mandal on any person who was committing one of certain offences with regard to that property. The offence in this particular case would be, no doubt, that of mischief, and would fall within the section. The evidence shows that Karim Baksh was wounded while he was actually attempting to remove the post. If that was so, the right of private defence against such mischief, would continue as long as Karim Baksh continued in the commission of that mischief and the Jury may have thought that that was the case here. Subject to the provisions of Section 99, which lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, the right of private defence would extend to the voluntarily causing to the wrong doer a harm such as was caused in this case. So far as Karim Baksh was concerned, the act of Asgar had the effect of defending the property against his possible wrongful act. Can it be said that that right was so exceeded as to make Asgar's attack on Karim an offence? It appears to us to be a matter of some difficulty. It is certainly not clear that it was an offence. The question was left--and properly left--to the Jury and they came to the conclusion, if we may judge by the verdict of not guilty, that it was not. It appears impossible to say that that verdict was clearly and undoubtedly wrong. It would appear that, so far as Karim Baksh was concerned, the defence of the property succeeded; but, so far as the other members of that party were concerned, it would appear that they went on with what they were doing and either pulled down the hut if it was completely erected, (as to which there is some doubt) or at any rate, removed the posts and other portions of it and threw the chals into the tank. The defence, therefore, of the whole property cannot be said to have been altogether successful.
6. Taking this view of the case, we must hold that the verdict of the Jury cannot be said to be perverse or erroneous; on the contrary, it may have been correct.
7. It is not necessary to discuss the question whether the act of Asgar was abetted by Nasir and Mahir, having regard to the view which we have taken of the act of Asgar Mandal himself. We accordingly acquit all the three accused.