1. This rule was issued upon the District Magistrate of the 24-Parganas and upon the opposite parties to show cause why an order of acquittal made by the learned Magistrate of Diamond Harbour should not be set aside. The facts of the case are briefly as follows : A certain plot of land was being ploughed by a number of labourers who claimed that they had taken settlement of it from the accused Sashi Bhusan Hazra who is a brother of the complainant Makhan Lal Hazra. Makhan attempted to put a stop to this and actually unyoked the ploughs or caused them to be unyoked. Thereupon his brother Sashi sent for his gun which was brought by accused 2, Kajani Kanta Haldar, loaded it and fired a shot with the result that Makhan was struck by several pellets and one or two other people who were with him also sustained injuries from gun shot wounds. On this case Sashi and Rajani were sent up on charges framed under Sections 324 and 324/109, Penal Code. The learned Magistrate acquitted both of them and against that acquittal the present rule has been issued.
2. The findings of the learned Magistrate in the Court below upon which he based his order of acquittal are unfortunately vague in the extreme. He holds in the first place that the prosecution case of undisturbed possession of the land in dispute has not been proved beyond doubt. What he appears to have thought is that actually the disputed land was in possession of tenants to whom it had been let out by the accused Sashi Bhusan Hazra, and it was on this assumption that the case has been argued before us. The only other findings of fact at which the learned Magistrate arrives are that he cannot believe the prosecution case that the persons injured went as independent sightseers and that the accused man Rajani had injuries on his person which might have been caused by a lathi, and that, therefore, the defence suggestion that he received these injuries at the time of the alleged occurrence is quite probable. It maybe noted that the accused themselves did not set up any specific case of a right of private defence of property, nor did they adduce any evidence in support of such a case. The only other finding arrived at by the learned Magistrate is that from the nature of the injuries inflicted on the opposite party it cannot be said that the accused intended anything more than causing hurt to Makhan Lal Hazra and that the shot appears to have been fired from a considerable distance away.
3. In our opinion these findings are not by any means sufficient to justify the order of acquittal made by the learned Magistrate. The admitted facts in the case are that the accused Sashi deliberately sent for his gun and then fired at his brother Makhan after Makhan had interfered with the-ploughing of the land. It may well be that there was a right of private defence of property, but the learned Magistrate has come to no definite decision as to who were actually entitled to plough up the land on which the occurrence took place, nor has he come to any decision that in the circumstances of the particular case; if there was a right of private defence of property the accused persons had not exceeded that right. The learned Magistrate appears to have overlooked the position that when a right of private defence is set up the onus is on the party setting up that defence to prove it, while his judgment makes it perfectly clear that there is nothing in the present case except suggestions unsupported by evidence to make out the existence of any such right. It may very well be that after a trial properly conducted and in which the evidence is directed to the material issues a finding that there was a right of private defence which was not exceeded may be justified. But on the materials before us at present, we are unable to take any such view and are constrained to hold that the order of acquittal passed by the Court below is improper. This rule must accordingly be made absolute. The order complained! of must be set aside and the case remanded for retrial on the lines indicated above by soma other Magistrate. Let the counter affidavit filed in Court to-day be kept on the record.
4. I agree.