1. This revisional applicator is directed against the order of Sri A.N. Lahiri, Additional Sessions Judge, Burdwan, acquitting the eight accused opposite parties of charges under Sections 304/34, 304/109 and 323 I. P. C. on the unanimous verdict of the jury finding them not guilty.
2. The prosecution case was briefly as follows: Rakhal Ghosh of Bhaturia, Purbasthali Police Station, sold eight bamboos from a bamboo clump in his village to Ranjit Ghosh of Bandhupur, on 28-3-1953. The bamboo clump in question belonged to Khenta Dasi, widow of Ramkrishna Ghosh, nephew of Rakhal Ghosh living in the same homestead as Rakhal Ghosh. The bamboo clump was situated just to the west of a plot of waste land of the homestead of accused Dharma Ghosh alias Sital, the plot of waste, land also belonging to accused Dharma Ghosh.
The bamboo clump was pointed out to Ranjit Ghosh by Rakhal Ghosh about 11-30 a. m. or 12 noon and Ranjit cut eight bamboos from the clump. Leaving the bamboos there, Ranjit went to the hattala (Market-place) for his midday meal and for obtaining a cart for carrying the bamboos. He returned to the bamboo clump with a cart about 3-30 or 4-00 p. m. He noticed Dharma alias Sital Ghosh taking away two of the cut bamboos and protested, but Dharma alias Sital claimed that the two bamboos had been cut from his land. Ranjit went to the house of Rakhal Ghosh and informed him.
Rakhal Ghosh's house was situated to the east of the District Board road east of the house of accused Dharma, being about 300 cubits from the bamboo clump. Rakhal Ghosh proceeded to the bamboo clump, with one of his nephews named Banamali. Three other nephews or his, named Kanai, Sridam and Murari, followed them to the clump. They found Dharma alias Sital Ghosh reinforced by the other, seven accused, viz., Kalipada Ghosh s/o Ramchandra Ghosh, Kalipada Ghosh s/o Annada. Ghosh, Bankim Pal, Ajit Ghosh, Hondo Ghosh, Bhakta Bauri and Batu Bauri.
They were all armed with lathis, Hondol having a pick-axe instead of a lathi. Rakhal Ghosh's nephews picked up bamboo branches (Kanchi). There was an altercation between the parties and the parties were about to come to blows. But on hearing the row, some villagers came and intervened and induced the parties to agree to the proposal that the boundaries of the plots belonging to Dharma alias Sital and Rakhal or his niece-in-law would be surveyed on the following day with the help of an amin if available and thus the title to the disputed clump of bamboos would be settled.
Rakhal Ghosh and his nephews started homewards along a pathway or lane going east towards the District Board Road across which they had to go to reach their house. On the way the accused party suddenly attacked them; Banamali Ghosh and Sridam Ghosh were severely assaulted with lathies and other weapons and fell down with bleeding injuries on the heads and other parts of the body; they were assaulted according to the prosecution case by Dharma alias Sital, Ajit Ghosh, Hondol Ghosh, Bhakta Bauri and Batu Bauri, while the other three accused Kalipada s/o Ramchandra, Kalipada s/o Annada and Bankim encouraged and instigated them by shouting.
Kanai and Murari were also assaulted, but their injuries were not severe. Rakhal Ghosh who bad stayed behind came up on hearing the row and as soon as he arrived at the spot the assailants took to their heels, and Rakhal did not sustain any injury. Banamali and Sridam had fallen near the junction of the District Board Road and the lane or pathway from the clump; they were carried home and a doctor was called from Dogachhi to attend them. Information was lodged at Purbasthali Police Station at 10-40 P.M. on the same day by a co-villager Bijay Kumar Basu, the thana house being 6 miles from the village. Banamali died on the next day 27-3-1953.
Under the Dogachhi doctor's advice, Sridam was removed to Dogachhia hospital and thence to Fraser Hospital, Burdwan, but he died on 30-3-1953. The police after investigation submitted charge-sheet against the eight accused and in due course the accused were committed for trial.
3. The accused themselves when questioned under Section 342, Criminal P. C. by the learned Sessions Judge merely pleaded their innocence, Hondol Ghosh stated in addition that he was very ill at the time, having had an attack of cholera and Bhakta Bauri stated that he did not go to the place at all. On behalf of the accused a further defence was suggested, as indicated by three questions put in cross-examination to P. W. 1 Bijay Kumar Basu, viz.
'I put it to you that there was mutual marpit and that both sides were injured; whatever occurrence took place happened near the bamboo clump; it was not possible to ascertain which injury was caused by whose blow'.
These suggestions were all denied.
4. In this case two men, Banamali and Sridam, were killed as the result of the incident which arose from a petty quarrel over two bamboos and the incident took place about 4 or 4-30 P. M. when there was plenty of daylight left; and the record of the case shows that there was sufficient evidence in support of the prosecution case; but it appears that the learned Judge formed the impression that the incident had taken place at the bamboo clump and that the prosecution had falsely alleged that there had been a patching up of the quarrel at the Lamboo clump and that Rakhal's nephews had been attacked when they were proceeding homewards and had practically reached the district board road; he conveyed this impression to the jury throughout his charge and told them that if they held that there was some truth in the defence version viz. that the occurrence took place at or near the bamboo clump, and were inclined to doubt the truth of the prosecution version, they must return a verdict of not guilty, even if they thought that some of the accused had dealt the fatal blow on Banamali and Sridam, because the prosecution must show that the occurrence took place at the spot and in the manner alleged by it.
The learned Judge showed his opinion against the prosecution version even in the manner in which he questioned some of the accused. Thus he told Kalipada Ghosh s/o Ramchandra that the complainant party had 'attempted to lead evidence' to show that by giving order the accused had caused the murder of Banamali and Sridam, and asked the accused what he had to say about it. It must be held that this mode of questioning the accused was not at all proper. If the learned Judge thought that the evidence regarding instigation was so unreliable, the learned Judge need not have asked the accused to explain the same.
There was however the evidence on oath of several witnesses about the particular accused having instigated other accused and the evidence should have been put to the accused without the learned Judge expressing his view about the worthlessness of such evidence, though in his charge the learned Judge was bound to point out, as he did, the infirmities of the evidence on the point. Such mode of putting the question to the accused was liable to prejudice the jury unfairly against the prosecution case.
5. As regards the insistence of the learned Judge that the prosecution must prove that the occurrence took place in the manner alleged by it, and that if the jury had any doubt about the place of occurrence they must return a verdict of not guilty even if they thought that the accused or some of them had been concerned in the murderous attack on Banamali and Sridam, it must be said that the direction was too sweeping. Every criminal charge involves two things: first, that a crime has been committed; and secondly, that the accused is the author of it.
Once these two things have been established, it is for the accused to prove the existence of any special circumstance which would justify or mitigate the criminal act. In the present case, it was proved beyond any doubt that death of Banamali and Sridam had been caused by violence.
If the jury were satisfied that the accused or some particular accused had caused the death of Banamali and Sridam (the death of each victim being considered separately) the jury could not be asked to acquit the accused merely because the prosecution witnesses had attempted to shift the place of occurrence to a certain extent, or had alleged a temporary patching up of the quarrel where there had been no such patching up; the jury had to consider whether on the findings made by it, the accused could claim total or partial exoneration because of the lawful exercise of a right of private defence.
No such direction was given by the learned Judge, the direction actually given that if the jury were inclined to doubt the truth of the prosecution case regarding the place of the fight, they could not but bring a verdict of not guilty, was, as already stated, too sweeping and not correct without qualifications.
6. It is true that in the case -- 'Mamfru Chaudhury v. Emperor : AIR1924Cal323 which was a jury reference case, it was remarked that if the evidence for the prosecution did not show that the incident alleged had happened at the time, in the place and, under the precise circumstances narrated on behalf of the prosecution, the Court could not dissent from the majority verdict of the jury for acquittal. The remark must be understood in the context of the case which was before the Court in the jury reference.
The subject-matter of the dispute in that case was a large tract of khas mahal land in Cox's Bazar Subdivision, of which the recorded tenant was Abdul Latif, the de facto complainant. Among the accused party were some people' who claimed actual possession of the land under a rival landlord. The prosecution case was that on 11-1-22 the accused party wrongfully had gone upon the land and out and removed paddy worth Rs. 3000/- and when Abdul Latif on receiving information sent his men to protest, there was a riot in which lathies were freely used and three men of the complainant party were forcibly carried away and detained for the night in a khamar bari, from where one of the men was released next morning, but the other two who had severe injuries were carried into Aracan and there released.
The defence was that five of the accused were in possession of the land and they had grown the paddy and had reaped the same, and that there had been no such fight or abduction as was alleged by the prosecution. There was a divergence as to the time of the occurrence; according to the complainant it was 1 or 2 p.m., but there was evidence that the time had been reported as 7 A.M. to the police originally.
No medical evidence was adduced by the prosecution in support of the case that two men of the complainant party had been severally injured and were detained in hospital for about 25 days. There was a great deal of discrepancy in the evidence. Their Lordships after noticing these defects of the prosecution case observed that the majority of the jury had sufficient reason to distrust the evidence; and then remarked that the evidence did not show that the incident alleged happened at the time, in the place and under the precise circumstances alleged by the prosecution. In view of the state of the evidence it might have been said that the commission of the crime alleged viz., riot and adduction, had not been proved.
7. The facts of the case before us are quite different. There was hardly any challenge to the fact that culpable homicide of Banamali and Sridam had been committed about the time alleged by the prosecution. The place was challenged, but the difference between the place alleged by the prosecution & that suggested by the defence was hardly 200 cubits. About the manner, the only difference was that while according to the prosecution case the quarrel at the bamboo grove was temporarily patched up and trouble Haired up again ay the parties were proceeding homewards according to the defence suggestion there was no patching up and the fight immediately followed the quarrel at the bamboo clump.
Even if the prosecution case is false in some detail, if it is nevertheless sufficient to prove the guilt of any accused, that accused must be convicted; but of course it is not the province of the court to build up a new hypothetical case for the prosecution, vide -- 'Banga Hadua v. Emperor' 11 Cr LJ 245 (Cal) (B). Acceptance of part of the prosecution ease with part of the defence case does not however amount to building up a new or hypothetical case.
8. Moreover, it is difficult to understand how the learned Judge came to his conclusion that the prosecution version was false in whole or in part. The accused adduced no evidence whatever in support of the defence suggestion that the occurrence had immediately followed the quarrel at the bamboo clump. No such statement was made by any of the accused who were questioned in detail by the learned Judge.
There were six eye-witnesses--P. Ws. 1-5 and 11, who spoke to the whole occurrence, and another witness--P. W. 12 Kanjit Ghosh who spoke to part of the occurrence; they all consistently supported the prosecution version. The F. I. R. which had been lodged without any undue delay, also gave the same version, except as to some of the accused having given order to attack. There was only one witness--P. W. 10 Bhaktabala Dasi who was declared hostile by the prosecution, who stated in chief that she knew nothing about the case; and in cross-examination that she heard the noise of quarel between Rakhal Ghosh and Dharma alias Sital at the bamboo clump, and that all the row the heard that day came from the direction of the bamboo clump.
This witness was living close to the house of the accused and in the accused's para west of the District Board Road. There could hardly be any reason to give much importance to her statement in cross-examination; the statement had no doubt to be placed before the jury for consideration, but it could not form sufficient basis for the learned judge making up his mind against the prosecution version and clearly indicating this to the jury. The evidence should have been placed fairly before the jury, with proper direction about the law.
It may be mentioned that it did not appear that any of the accused bad sustained any injury whatever. This was a circumstance in favour of the prosecution version; had parties come to blow at the bamboo clump where both the parties were more or less ready, accused party could hardly have escaped injuries altogether. The learned Judge was of the opinion that the explanation given by the prosecution for recrudescence of trouble was unsatisfactory.
But it is well-known that when parties have been on the verge of coming to blows, any stray remark by a member of one party may make the other party's blood boil up again and thus cause a recrudescence of trouble.
9. The charge of the learned Judge relating to the charge under Section 304/34, I. P. C. against five of the accused cannot be regarded as satisfactory. He placed before the jury the description of the injuries of Banamali & Sridam as found by the Dogachhi doctor P. W. 9. As regards Sridam, P. W. 6 Dr. Sarkar who held postmortem examination on the body found numerous other injuries, but this evidence was not placed before the jury by the learned Judge.
No doubt the injuries not described by P. W. 9 were slight injuries, but they would be relevant in assessing the question whether five assailants had really attacked Sridam and Banamali. Moreover he told the jury that both Banamali and Sridam had died because of the injuries on their heads and the medical evidence was not definite on the point whether the head injuries had been caused by one or more blows; that if the victims died as the result of single blow on the head, all the five accused could not be liable under Section 304/34, I. P. C.
This was not a proper way to deal with the matter. If five accused had the common intention to cause death amounting to culpable homicide, all would be guilty even if the blow of one only caused the fatal injury. Of course the jury had to be told that the intention had to be inferred from the circumstances, and the fact that the other injuries were relatively slight might reasonably lead to the inference that the five assailants did not have the common intention to cause injuries likely to cause death.
But the jury had to be asked to consider whether the accused could be found to have the common intention to cause grievous hurt or simple hurt, the offence being reduced to Section 325/34 or 323/34, I. P. C. The omission to tell this to the jury must be regarded as a non-direction amounting to a misdirection.
10. Next, the learned Judge omitted to place before the jury the dying declarations of Banamali and Sridam, and to explain the law regarding such declarations. The only reference he made to the declarations is in the following sentence:
'To Dr. Sen Gupta, You know, Banamali and Sridam made certain declaration against the accused but they do not seem to have spoken about the place of assault.'
This was of course quite insufficient, for the names of the particular accused named by Banamali and Sridam separately as their respective assailants were not placed before the jury. The jury might choose to accept the statements made by the dying victims even if they rejected the direct testimony about the occurrence. This omission must be regarded as a serious misdirection.
11. Regarding the charge under Section 304/109, I. P. C. against Kalipada Ghosh I, Kalipada Ghosh II and Bankim Pal, the learned Judge gave a clear direction to return a verdict of not guilty, because the eye-witnesses according to their evidence arrived at the spot after the beating had commenced, and in the opinion of the learned Judge, it could not be said that the beating commenced as the result of the order. Such a positive direction does not appear to have been justified.
Thus the evidence of P. W. 2 Rakhal Ghosh is that he started about a minute after the others, and on the way he heard the shout (Mar, Lagao Mar) (Beat, give a beating) and going up, he found Hondol, Ajit, Sital, Batu and Bhakta beating Banamali and Sridam, and the other three accused still shouting. It might be reasonably inferred from the evidence if believed that the beating commenced as the result of the instigation; in any case it should have been left to the jury to come to their own conclusion about this question. It would also be necessary to explain whether the abetment was of the offence under Section 304 or of the offence under Section. 325 or 323, I. P. C.
12. As regards the Salish witnesses again, the learned Judge appears to have been inclined to wave aside their evidence for insufficient reasons. P. W. 7 Nandalal Mukherji was a person unconnected with either side; P. W. 12, Ranjit Ghosh also was a man of another village. The fact that one of the accused had ceased to engage Nandalal as his priest could hardly be sufficient reason for the witness to depose falsely in the case.
' The story of intervention by the villagers to stop the quarrel at the bamboo clump was mentioned in the F. I. R. and this part of the prosecution case was clearly entitled to greater consideration than the learned Judge gave to it.
13. On the whole we are clearly of the opinion that the charge of the learned Judge was much too one-sided and was further vitiated by misdirections on questions of law, and there should therefore be an order for retrial. Mr. Ajit Kumar Dutt appearing for the opposite party has urged that an order of acquittal should not lightly be interfered with at the instance of a private party. In -- 'D. Stephens v. Nosibulla', : 1951CriLJ510 the principle was thus enunciatated by the Supreme Court:
'The revisional jurisdiction conferred on the High Court under Section 439, Criminal P. C. is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice.' It appears to us that the present case is one where to prevent a gross miscarriage of justice, there should be intervention by the High Court, in accordance with the principles above enunciated. Two lives have been lost as the result of an attack made in broad daylight in consequence of a petty quarrel over two bamboos; and it would be a travesty of justice to allow the order of acquittal to stand where it is clear that the verdict of the jury was the result of misdirections in law and non-directions on fact by the learned Judge.
14. It has finally been urged that in any case there should be no direction for a retrial of Kalipada I, Kalipada II, and Bankim Pal, for apart from the fact on which the learned Judge rested his direction for acquittal, viz., none of the eye-witnesses were present at the commencement of the beating of Banamali and Sridam, there is the circumstance elicited in evidence that before the police the witnesses did not specifically mention these accused as having given, order or encouragement to beat.
It is true that this circumstance might have been of weight provided the jury had based their verdict on it; but the jury in this case were clearly directed to return a verdict of not guilty on another ground which has been found to be unsustainable; they had no occasion therefore to consider the effect of the non-mention of the giving of order of encouragement when the witnesses were examined by the police. In the circumstances, the whole case should go for a retrial; and there may be an added charge under Section 147, I. P. C. against all the eight accused.
15. Hence this revisional application is allowed; the order of acquittal of the accused in respect of the charges under Sections 304/109 and 304/34, I. P. C. and 323, I. P. C. are set aside and the accused opposite parties are directed to be retried of the charges against them, and of the additional charge under Section 147, I. P. C. with the common object of assaulting Banamali, Sridam and other men of Rakhal Ghosh's party. There should be separate charges under Sections 304/34 and 304/109, I. P. C. in respect of the death of each of the two victims and an attempt should be made to fix the place of occurrence by questioning the Investigating Officer about the place if any where he noticed marks of blood; it does, not appear that any such question had been put by either party in the trial held by the learned Judge.
J.P. Mitter J.
16. I agree.