1. This is a reference under Section 307 by the Sessions Judge of Noakhali disagreeing with the unanimous verdict of the jury who found the accused Ali Mia not guilty of an offence under Section 304, Indian Penal Code. There is no dispute about the facts of the case. The only question is whether the accused has on the facts found and admitted, committed any offence, and if so, what.
2. The accused is charged with causing the death of a boy of 15 or 16 years of age named Makbul. The boy Was the accused's distant nephew. The prosecution case, which is not challenged by the defence, is that the boy lived with his own uncle Abdul Majid in a separate house, not far off from that of the accused. On the night of the occurrence Abdul Majid returned home from a hut and found that the boy had already taken his meal and gone out. Abdul Majid went to bed at 10 p.m. About midnight he was roused by the witness Khursed and went to the accused's hut where he found the accused holding Makbul in his arms and weeping. The accused told him that 'he had cut Makbul not knowing him but taking to be a thief.' On being questioned the boy said that while he was going to enter into the hut after opening the door he was cut by his uncle, the accused. The most important witness, the only eye-witness to a part of the occurrence is Witness No. 5, Shona Mea. He says that he was sleeping when at about midnight he heard cries of the accused: 'Khai lo re, Khai lo re', which means 'I am being finished.' On going, there he saw that on the step of the hut of the accused he was brandishing a dao and the deceased was opposing with his hands. As he went there with a light the accused had recognized the deceased and then took him to his arms weeping and saying: 'I have killed my tame bird' The accused threw down the dao, took Makbul into his lap and sat down. To him and all other witnesses who subsequently gathered there the accused said that he cut the deceased by mistake thinking him to be a thief. The witness further says that on some occasions before the occurrence thieves had entered into the bari which is the common bari of the witness and the accused, and 10 or 15 days before the occurrence a plough belonging to the accused was stolen.
3. The evidence is that the night was dark and it was raining, and the deceased at about midnight opened the door of the hut of the accused and was about to enter when he was cut by the accused. The witness Shona Mea further says that he asked the deceased and he told him that he was going into the hut of the accused after opening the door when he was struck by him with the dao. He asked the deceased if he had called anybody before he tried to enter and he said 'No.' The accused had all along admitted that he cut the deceased by mistake thinking him to be a thief as there had been several cases of theft in his house. An attempt was made to record the dying declaration of the deceased, but he could not say more than pointing out the accused when he was asked as to who gave him the cut. The evidence further is that blood marks were found outside the room on and about the step which appears to be a narrow ledge under a low thatch.
4. On these facts the learned Sessions Judge recommends that the accused should be convicted of an offence under the first part of Section 304, Indian Penal Code. The recommendation of the Judge seems to be based on his opinion that the accused exceeded the right of private defence of property. I need not discuss the right of private defence of person as I do not think the evidence in the case sufficiently justifies it. The learned judge said:
If you find somebody coming into your hut to steal by opening a closed door you can do anything necessary to protect your property and if it is necessary you can kill. But that right is limited. The right will continue so long as the thief is in the hut. From the evidence it seems that there was blood on the paitha and no blood in the house; you will have to consider here whether, even if the accused had some right at the moment when the door was being opened, he did not exceed that right and lose the benefit of it.5. I do not agree that the judge's statement of the law is correct in all respects. He is right when he says that the right of private defence even to the extent of killing arises when somebody opens a closed door to make an entry into the house, but he is not right in saying that such right of private defence of property only continues so long as the thief is in the hut. Under Section 103, Indian Penal Code, the right of private defence of property to the extent of causing death arises not only when the house is broken into but when an attempt is made to break into the house. It is not the intention of the law that the right to defend property is available only when the thief has already effected entry, for property may be protected by attacking the thief inside, the house as much as by preventing his entry into it. From the passage in the charge which I have quoted it appears that the learned Judge admits that the right existed when the door was being opened. I cannot understand how it was subsequently lost.
6. According to the Judge's view the accused would have been justified in inflicting mortal injuries on the deceased after he had entered the hut, but not so long as he was on the step. This is not the correct reading of the law. There were several cases of theft from the house of, the accused previous to the occurrence. He finds that at midnight the door of his hut is opened by some one from outside and with the suspicion in his mind created by previous events he attacks the man with a dao before the latter could commit further mischief. He could not be sure that the supposed burglar was not armed and further loss of time might have endangered his own life. On the evidence I am not sure that the deceased was not trying to enter the house with an evil motive such as theft. When he was attacked he could have cried out that he was Makbul and in all probability the accused would have held back his hand. There is no evidence that he did so. On the other hand Shona Mea, Witness No. 5, for the prosecution says that the deceased told him that he had not called anyone before entering the hut. It is in evidence that the night was dark and the accused recognized the deceased only when light was brought by Witness No. 5, and then he cried out that he had killed his nephew. On the facts proved I am clearly of opinion that it is a case of mistake of fact as admitted by the prosecution for the learned Judge in his charge says: 'The prosecution admits that it was a pure mistake on the part of the accused to strike his nephew.' A case similar to the present arose a long ago. In the case of Levet (1) the accused caused the death of his servant mistaking her for a burglar and he was acquitted. The fact that the accused in that case was told by other people that there was a burglar in the house does not distinguish it from the present case where the accused was led honestly to believe by senses that a burglar was attempting to enter into his house. I am accordingly of opinion that the accused did not exceed the right of private defence of property and has, in the circumstances of this case, committed no offence.
7. The result is that the Reference is rejected, the verdict of the jury upheld and the accused acquitted. He will be released from his bail.
8. I agree.