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Meher Sardar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.218
AppellantMeher Sardar and ors.
RespondentEmperor
Excerpt:
misdirection - trial by jury--right of private defence, when commences--trespassers carrying away crop--police station of distance of nine miles--rulings cited to jury. - .....the direction of the judge they must have found that meher sardar and his party had the right of private defence against the taking of their crops. they were, therefore, justified in using sufficient force to get rid of these people and prevent their stealing their crops and the learned judge clearly misdirected the jury when he left it to them to say whether the fact that the police station was only nine miles off the place of occurrence did not take away their right of private defence; for the right of private defence of property commences when reasonable apprehension of danger to the property commences and if persons have begun to cut and carry away your crop it cannot be said that you are bound to go nine miles to fetch the police. the reasonable apprehension of danger to the.....
Judgment:

1. This is an appeal from the conviction and sentence passed by the learned Sessions Judge of Khulna upon seven persons. Agreeing with the unanimous verdict of the jury, he found them guilty under Section 147, Indian Penal Code, and directed that they be rigorously imprisoned for one year and six months each under that section. The accused Kader Sardar and Kobil were further found guilty by the jury under Section 326 and they were sentenced to be rigorously imprisoned for three years under that section, the sentences were to run concurrently with those passed under Section 147.

2. The jury found incidentally that possession whether rightly or wrongly was with the first accused Meher Sardar and, therefore, following the direction of the Judge they must have found that Meher Sardar and his party had the right of private defence against the taking of their crops. They were, therefore, justified in using sufficient force to get rid of these people and prevent their stealing their crops and the learned Judge clearly misdirected the jury when he left it to them to say whether the fact that the Police Station was only nine miles off the place of occurrence did not take away their right of private defence; for the right of private defence of property commences when reasonable apprehension of danger to the property commences and if persons have begun to cut and carry away your crop it cannot be said that you are bound to go nine miles to fetch the Police. The reasonable apprehension of danger to the property having commenced the right of private defence has also commenced. The same consideration applies to the remedies in the Civil Court to which the learned Judge referred. The cutting and the removal could not have been prevented at the moment by the institution of any suit, and the learned Judge practically directed the jury that by taking the law into their own hands they formed themselves into an unlawful assembly and it is on this misdirection that the jury have found them all guilty under Section 147. We notice that he has cited and commented on a number of rulings of this Court and told the jury that it was for them to say whether any of those rulings are exactly on all fours with the circumstances of the present case. This is also a misdirection. No rulings or authorities are ever to be cited to the jury nor are they to be asked to differentiate or form any opinion whatever on any authorities. It is for the Judge and the Judge only to tell the jury what the lawis, and before he tells them what it is he may consult as many authorities as he pleases and those authorities are, no doubt, binding upon him. The minds of the jury should never be confused by having a number of conflicting authorities or indeed any authorities laid before them. In this case the Judge not only confused the jury by laying before them a number of conflicting authorities and leaving it to them to choose between them but as we have seen he has misdirected them as to the law of the right of private defence. We have no doubt that the accused persons had the right of private defence in this case and that they did not exceed it except in so far as certain persons fractured the skull of one Barkatulla with lathis. This was a wholly unnecessary proceeding and quite unjustified. But as the assailants were exercising the right of private defence they cannot have formed members of an unlawful assembly.

3. The convictions and sentences under Section 147, Indian Penal Code, against all the appellants must, therefore, be set aside and they must all be acquitted and released with the exception of appellants Nos. 3 and 4, Kader Sardar and Kobil alias Kobeluddi, who have been further convicted by the jury under Section 326 on the finding that it was they who struck Barkatulla the two blows on the head which the medical evidence shows fractured his skull. In so doing, they undoubtedly exceeded the right of private defence and the verdict of the jury must be upheld. But we think the sentence must be reduced to one of eighteen months' rigorous imprisonment in each case.

4. We accordingly direct that the accused Kader Sardar and Kobil alias Kobeluddi be sentenced to eighteen months' rigorous imprisonment under Section 326, Indian Penal Code. The other appellants will be discharged.


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