1. The appellant, Mahommed Yunus, has been convicted of abetment of the offence of culpable homicide not amounting to murder, and of abetment of voluntarily causing grievous hurt with a dangerous weapon punishable under section; 324 and 326 read with Section 109, Indian Penal Code. He has been sentenced to five years' rigorous imprisonment on both counts, the sentences running concurrently.
2. The appellant, who was an Assistant Sub-Inspector of Police, was jointly tried with two Constables, Ahmad Ali and Kadamali, who were charged with offences punishable under Sections 304 and 326 read with sec ion 34, Indian Penal Code. Ahmadali was convicted on both charges and concurrent sentences of five years' rigorous imprisonment for each offence were passed'. We are informed that he has since died. Kadamali was acquitted.
2. The occurrence which led to this trial took place at the Mirzapur Hat on Wednesday, the 8th June 1921. This hat is the 'property of the Bhawal Estate which is under the management of the Court of Wards. Sometime before the occurrence, a Sadhu claimed to be the second Kumar, one of the owners of the estate who was said to be dead. A large number of tenants of the estate believed the claims of the Sadhu to be genuine.' There was great excitement about this and consequent difficulty about the management of the estate. The Board of Revenue held an enquiry, and authorised the Collector of Dacca to publish a notice (Exhibit A) to the effect that tie Board had got conclusive proof that the corpse of the second Kumar of Bhawal had been burnt twelve years previously in the town of Darjeeling and that the Sadhu who was making himself known to be the second Kumar was an imposter and anybody paying any rent or subscription to him would do so at his own risk. On the day of occurrence this notice was being published in tie Mirzapur Hat by beat of drum by servants of the local kachari of the estate. Then there was the following sequence of events which, as stated by the learned Sessions Judge in his charge to the Jury, are more or less admitted by both sides. The people assembled at the hat objected to the proclamation of the notice, and there was a fracas between them and the kachari servants. The accused had come to Mirzapur in a Police patrol boat end there was an alteration between them and the crowd. Jamirudeen (P.W. No. 1) who is a past ijaradar of the hat are also a Panchayet interceded, and to prevent matters getting worse, had the two Constables removed to tie kachari under the protects in of Mohit Narayan (P.W. No. 2) a, or met servant of the kachari. A large number of persons followed them up to the steps of the kachari. Then the appellant, the Assistant Sub-Inspector Mohamad Unus, arrived. Shortly after his arrival, under his orders, two shots were fired from the guns held by the Constables. Ahmadali admitted having fired his gun. Kadamali admitted that the gun was in his hand but set up the defence that the trigger was pulled by the appellant. The Jury acquitted Kadamali on the ground that they doubted whether he fired the gun. Inconsequence of the firing of these two guns one Jhumerali received a mortal wound of which he died a few hours later. Srinath (P.W. No. 4) had his finger blown off; the wrist of Ktemu (P.W. No. 5) was lacerated, end Ram Satan (P. W. No. 6) pad his lower jaw and cheek lacerated and his eye injured.
3. The main issue in the case is whether the accused were justified in firing in exercise of the right of private defence. The principal contention in this appeal is that the verdict of the Jury should be set aside on the ground of misdirection by the learned Sessions Judge on this main issue. Before discussing this point it will be convenient to first deal with a preliminary objection that the trial was without jurisdiction by reason of the provisions of Section 132, Criminal Procedure Code. This section provides that no prosecution against any person for any act purporting to be done under Chapter IX of the Code shall be instituted in any Criminal Court except with the sanction of the Governor-General-in-Council. It is contended that the act of the appellant in contacting the Constable to fire was justified by the provisions of Section 128, or at any rate. the act purported to be done under that section, so as to render the provisions of Section 132 quoted above applicable. But this contention bails because the power to disperse an unlawful assembly by force is not given by the Code to any Police officer below the rank of an officer in charge of a Police Station. An examination of the Police Manual shows that the powers of an officer in charge of a control boat are no higher than those of an officer in charge of an out pest from such an officer the power to investigate constable cases has been withheld and this is a power which he would necessarily have under Section 156, Criminal Procedure Code if he were in charge of a Police Station. As an officer in charge of control boat the appellant had no power to act under Chapter IX of the Code of Criminal Procedure and he cannot even have purported to act under that section.
4. But on the main issue we hold that there has been positive misdirection on certain points or law and also that, reading the charge as a whole, the case on the facts has not been fairly placed before the Jury. In the first place the learnt d Judge has not realised that on the case set up for the prosecution a charge of murder should have been framed. The Case as stated by him that the Constables were never in danger of their life and property at the first stage in the hat the two Constables might have been threatened by the mob, but when, under the protection of Mohit, they were taken into the kachari the apprehension of violence Ceased. Facts which happened after they were taken into the kachari and Yunus (the appellant) appeared were not such as to make them reasonably apprehend serious violence.' But if guns loaded with ball were fired under these circumstances directly at a crowd of people at close quarters, the person or persons who were directly responsible for the act would be guilty of murder of Jhumarali. The act was so imminently dangerous that it must in all probability cause death, and this came within Clause 4th of Section 300, Indian Penal Code. The heads of charge to the jury do not show how the law was explained to the Jury so as to render an act, which tin learned Judge himself described as imminently dangerous,' punishable under Section 304 Indian Penal Code. If, as seems probable from another portion of his charge. The Jury ware told that the case fell within Exception 2 of Section 300 which relates to exceeding the right of private defence, this was a serious misdirection, since the case for the prosecution was that there was no right of private defence at all. That the right of private defence was exceeded was neither party's case, and it should have been put clearly to the Jury that the question they had to decide was whether of no the right of private defence came into existence, and not how far it extended.
5. The learned Judge's remarks on the burden of proof were likely to mislead the Jury. As the accused had examined witnesses to prove their plea of the right of private defence, there was no necessity to refer to the provisions of Section 105 of the Evidence Act. The incidence of the burden of proof means that the person on whom it lies must prove that fact. But the meaning of 'proved' as defined in Section 3 of the Evidence Act is into way affected by the incidence of the burden of proof. When as in the present case, evidence has been given to support the defence of an exception, the burden of proof is discharged if the evidence, is believed, and the Jury have their ordinal duty of deciding a question of fact of the evidence before them. But the learned Judge's remarks seemed to suggest, and were probably understood by the Jury to direct, as a matter of law, that the defence set up required a higher standard of proof. In dealing with the law as to the right of private defence, there ore emissions of important points which amount to serious misdirection. In explaining Section 100, Indian Penal Code the learned Sessions Judge told the Jury; 'If there be reasonable apprehension of killing or robbing, the attacks maybe met by killing but no mention was made of an apprehension of grievous hurt. It is pointed out on behalf of the Crown that the heads of charge show that Section 100, Indian Penal Code, was read and explained, but this section contains a list of six heads of offences, several of which could have no application to the case they were trying and the Jury would naturally disregard those to which their attention was not specially directed by the Judge. A second important omission' is that no reference appears to have been made to the provisions of Section 101, Indian Penal Code which relate to the right to cause any harm other than death. It was necessary that the Jury should understand this section also before giving a verdict on the minor charges of causing grievous hurt.
6. There are other points in respect of which the learned Vakil for the appellants has satisfied us that there was misdirection. When the statement of Kadamali before the Magistrate was put in, his deposition in the trial in the cross case should have been put in with it, since Kadamali then wished it to be considered as his defence. The Jury should have been warned that the statement of Kadamali in the Sessions Court not being a concession, could not be considered as against his co-accused. Exhitits 2 and 5, the first information lodged by Momtazuddinand a report of Mainuddin Barker, who were not examined as witnesses, were not admissible as evidence. It is not necessary to dwell on these points as the misdirection was not. such as is likely to have occasioned a miscarriage of justice, apart from the general misdirection in the charge considered as a whole. There is another point urged on behalf of the appellant that the Jury should have been directed to draw an inference adverse to the prosecution because a number of persons who could have given important information were not examined as witness for the Crown. The more important of these were the Bhawal Estate Jamadar, peon and drummer, who were publishing the notice that led to the disturbance, Momtazuddin who laid the first information Exhibit 2, and who is brother-in-law of Jhumerali who was killed, Mainuddin the President Panchayet who wrote the report, Exhibit 5 Radha khan and Ahmadulla who were admittedly, present. It was the duty of the prosecution to put all the evidence before the Court, and the only valid excise for not examining the witnesses world be that no reliance could be pkcfd en their evidence. By discarding these witnesses the prosecution emphasized the act that the case for the Crown was a total deniai of any right of self-defence, and not that the right of private defence was exceeded. As stated above, we hold that the learned Sessions Judge erred in not putting this issue clearly before the Jury. But we also could that was unfair to the accused in his remarks on the restrictions to the right, of private defence and his suggestions that, that right was exceeded. If the three Policemen were in danger of attack from an angry mob, it could net be said that 'the injury apprehended may be warded off by inflicting harm, less grievous than death.' Experience teaches us that in such a case the only remedy is the drastic one of shooting to kill in tie first instance, and that anything less is likely to increase the fury of 'the crowd. There are also several points in favour of the accused to which the attention of the Jury should have been drawn. It is admitted that at the commencement of the occur re nee there was great excitement--the [eon was assaulted and the Constables had to be taken under protection. We find it hard to believe that the excitement should have at once subsided when the Constables were taken to the kachari--when the grievance the mob had, was that the Constables were siding with the kachari servants. The duty should also have been reminded of the fact that an angry crowd is the more dangerous because the persons competing it will commit crimes jointly that they would never have committed individually. The learned Judge, in his order passed after the duty had given their verdict, referred to the tendency of Juries now-a-days net to be lenient to Policemen, still less Police or Miltary officers who fire upon an unarmed or even an armed crowd. But nowhere in his charge did he warn the Jury against being prejudiced in this way, or point out the difficulties and dangers of Police officers when confronted by an excited mob. Nor did he remind the Jury, as he might have done, that the accused were men of Eastern Bengal like themselves who world have probably been unwilling to cause the death of a fellow creature unless they felt compelled to do so.
7. For the above reasons we hold that there has been-sari-us misdirection which has occasioned a failure of justice. On a full consideration of the case we do not think it would serve any. useful purpose to order a re-trial.
8. We accordingly allow this appeal. We set aside the conviction and sentence passed on the appellant, and direct that, his bail bond be discharged.