1. Of the nine appellants in this appeal, Keamaddi has been found guilty under Section 148, I.P. C, and sentenced to three years' rigorous imprisonment and also under Section 304(part 2) and sentenced to seven years' rigorous imprisonment, the sentences to run concurrently; Mohan and Manik Sheikh were each sentenced to three years' rigorous imprisonment under Section 148, I.P. C, and to six years under Section 304, (part 2) 149, I.P. C, the sentences to run concurrently. Manik was further convicted under Section 324, I.P.C. The other appellants Golapdi, Bonomali, Hasenuddi, Gadu, Anasaraddi and Ahmad Ali were convicted under Section 147 and sentenced to two years' rigorous imprisonment; they were also convicted under Section 304(para2) 149 and sentenced to five years' rigorous imprisonment, the sentences to run concurrently. The verdict of the jury with which the learned Judge agreed was unanimous.
2. The prosecution case is that the complainant Kuti Matbar and his nephews Hamid and Imanaddi (deceased) went with their ploughs to plough Hamijaddi's khet which lies to the south of the khet of the appellant Golapdi. There had been ill-feeling between the two parties on various grounds amongst others on account of a dispute over the 'ail' between Hamijuddi's khet and Golapdi's khet to the north. The prosecution allege that at the time of the occurrence the appellants and others came armed with katras, shorkis and lathis and attacked the complainant and those who were with them while they were ploughing Hamijudd's khet. Golapdi and his two sons Kuti Mea and Bonomali came first to the field. Kuti had a katra in his hand and Golapdi and Bonornali each had a lathi. Shortly afterwards some more men numbering about 20 arrived there. Of these men Manik had a san dao in his hand and Mobarak (who is not on trial) and Mohan each had a katra and the rest had lathis. Seeing the armed men coming the complainant Kuti Matbarand Hamid started running away towards the west and began to shout. Imanaddi was not quick in getting away,land was surrounded and assaulted by Golapdi's order to beat him. Ansaraddi gave him a lathi blow which Imanaddi warded off with his left hand, but afterwards Kuti Mea stabbed Imanaddi with a katra piercing the right side of his abdomen while Manik struck him on his left shoulder with a san dao. Imanaddi fell down and died immediately. Then there was a cry of murder and the accused's party went away to the north. Subsequently, the accused were arrested and put on their trial on the charges with which they have been convicted.
3. The principal point urged in this appeal is that the learned Judge misdirected the jury inasmuch as he told them that as no right of private defence of property is claimed on behalf of the accused the jury need not consider if such a right existed at all. He also said:
I think in the circumstances appearing in the evidence right of private defence of property could not be claimed in the case 'and the defence pleader has rightly disclaimed it on behalf of the accused.
4. Previous to that he had said:
The question in this case therefore is whether the fatal stab on Imanaddi's abdomen was given in the exercise of the right of private defence of his body or the bodies of Golapdi and Bonomali or that of the property the ail of which is alleged on the defence side to have been demolished and upon which some mischief was done in the shape of destroying a few till plants. Now, the learned pleader for the accused in course of his arguments contended that the act complained of was done in the exercise of the right of private defence of the bodies of Golapdi and his two sons and not in retaliation of any such demolition of ail or mischief to the till khet.
5. The learned advocate for the defence has argued strenuously that whatever the evidence was, if there was any evidence at all tending to show that the appellants were acting in exercise of the right of private defence of their property, this evidence, whatever it was, ought to have been pointed out to the jury and in telling the jury that they were not to consider the right of private defence of property, the learned Judge misdirected them. Various portions of the evidence were pointed out to us as going to show that the appellants were acting in the exercise of the right of private defence of property. We have considered these portions of the evidence; we are inclined to agree with the learned Judge that they do not show that at the time of the occurrence the appellants were in fact acting in exercise of the right of private defence of their property. It is true that in his statement one of the appellants, viz. Golapdi, says that the complainant and his party were breaking the ail and that it was upon this that he and his son went to the ail and asked them why they broke the ail and uprooted the till. Then they abused him whereupon 8 or 10 persons came with lathis and surrounded him and began to beat him. This may indicate that at the time he went up they were actually engaged in breaking the ail. But when we consider the evidence we find that there is no evidence either appearing from the cross-examination of the prosecution witnesses or from the statement of the defence witnesses to show that any damage was being done to the ail when the accused came up. The defence witness 3, Dhaliluddi says that he saw five men, viz. Imanuddi, Hamijuddi, Kuti Matbar, Mominuddi and Sonamuddi who were ploughing Hamijuddu's khet with five ploughs. Then he saw Golap Ali and his son Kuti Mea came there and Golap Ali addressing Imanuddi said:
Why do you demolish my ail.' The ail which existed between Golap Ali's khet and Hamijuddi's khet had been demolished at places by Imanuddi and others on the same day. Imanuddi was at that time was holding the plough on the south side of that ail.
6. The land to the south of the ail belonged to the complainant and his party and the fact that they protested that the ail had been broken on the same day does not indicate that it was broken at the time of the occurrence; they were protesting because of the damage done on the morning of that day previous to the occurrence. Some of the other witnesses say that this damage had been done some weeks before. Other witnesses again say while a small portion of the damages had been done before, at the time of the occurrence they noticed that further damage to the extent of 50 cubits had been done apparently in the morning previous to the occurrence. So that although the learned Judge was ill advised in directing the jury that they were not to consider the right of private defence of property it is clear that in fact there was (although appellant 1, Golapdi, and two of the other appellants in their statements claimed the right of private defence of property), no evidence showing that they were at the time of the occurrence acting in exercise of the right of private defence of property. So that inasmuch as there is no evidence in support of the statement of the appellants on this point, even if the direction of the learned Judge can be said to be misdirection, we do not think that it is sufficiently material to justify us in sending back the case for retrial. The learned advocate for the appellants has rightly contended that the fact that the learned pleader for the accused does not urge any particular defence, is no reason why that defence should not go to the jury in the summing up by the Judge if there is any evidence whatever in support of the defence.
7. We think that on the evidence there can be no doubt that the appellants and others came out with weapons expressly for the purpose of attacking the complainant's party and not for the purpose of preventing any continuation of or any additional damage to the ail. The damage to the ail had taken place before this and at the time of the occurrence no damage was being done to the ail and the attack was really made on account of previous ill-feeling between the parties. It is true that three of the accused received a number of slight injuries, but the evidence does not indicate that the complainant's party were in any sense the aggressors and the evidence seems clearly to indicate that the appellants were the aggressors and they were determined beforehand to attack the complainant's party. The common object in this case was, as stated in the charge, to attack the complainant's party. We think therefore that the appellants have been rightly convicted. (His Lordship then considered the question of sentence and reduced the sentences of some accused).
M.C. Ghose, J.
8. I agree.