Faiyaz Khan And Others v. Rex

1. Six persons, lddu Khan, Chhunnu Khan, Mallu Khan, Faiyaz Khan, Mindu Khan and Yasin Khan were prosecuted for offences under Sections 147, 304, 323 and 149, Penal Code and Section 24, Cattle Trespass Act for forming an unlawful assembly with the common object of rescuing their cattle from Paqir Mohammad and Ammi Khan; and for committing a riot and for causing simple hurt to Ammi Khan and the death of Faqir Mohammad. They have been convicted and sentenced to various terms of imprisonment. They have come up in appeal to this Court.

2. The prosecution case was that on 3rd July 1946, at about 4 p.m. the cattle of the accused Faiyaz Khan, Mallu Khan and Yasin Khan trespassed into the sugarcane field of Ammi Khan and his father Faqir Mohammad deceased, Faqir Mohammad and Ammi Khan were at that time engaged in sowing paddy in another field at a distance of about 100 paces-from their sugarcane field. When they found that cattle were grazing in their field, they drove away the cattle and were taking them to the cattle pound in the neighbouring village Kundra. When they had proceeded a little, the six accused came armed with lathis and demanded the release of the cattle by show of force, Ammi Khan and Faqir Mohammad refused to comply with the demand; whereupon Mallu Khan and lddu Khan gave lathi blows on the head of Faqir Mohammad as a result of which his skull was fractured and he died, and the other four persons, namely, Chhunnu Khan, Mindu Khan, Yashin Khan and Faiyaz Khan gave lathi blows to Ammi Khan. Ammi Khan received simple injuries. None of the accused admitted his presence at the time of the occurrence and they all pleaded alibi.

3. The prosecution produced four witnesses, These were Ammi Khan, who was himself injured, Dildar Khan, Fateh Sher Khan and Pidda Husain. Abdullah Khan, the witness mentioned in the first information report, was not examined by the prosecution but was examined by the Court under Section 540, Criminal P. C. The evidence of the prosecution witnesses establishes that Idda Khan and Mallu Khan struck Faqir Mohammad on the head and that Chhunnu Khan, Mindu Khan and Yasin Khan struck Ammi Khan with lathiB. Some prosecution witnesses name Faiyaz Khan also a one of the assailants of Ammi Khan. The medical report is that Faqir Mohammad received two injuries on the head and that Ammi Khan received three injuries on his body. These were all simple. Faqir Mohammad's injuries on the head were very near each other. The learned Counsel appearing for the accused has argued that it is improbable that they should have been caused by two persons, I do not, however, see any improbability in this in the face of the positive evidence that lddu Khan and Mallu Khan struck Faqir Mohammad on the head. I do not think the mere fact that the injuries were very close to each other would enable me to hold that lddu Khan and Mallu Khan were not. telling the truth.

4. The learned Counsel next argues that sin3e Ammi Khan had only three injuries on his person it could not be true that four persona struck him with lathis. In the case of Faiyaz. Khan accused, Abdullah Khan, the court witness,, clearly stated that he did not see Faiyaz Khan at the scene of occurrence at all, and Fida Husain, prosecution witness, stated that he did not see Faiyaz Khan giving any blow. I think there is room for reasonable doubt about the presence of Faiyaz Khan at the time of marpit. I, therefore, give him the benefit of doubt and hold that he is not guilty of any offence.

5. Having come to that conclusion, the evidence of the prosecution witnesses that Chhunnu Khan, Mindu Khan and Yasin Khan struck Ammi Khan with lathis becomes probable. Nothing has been shown to me to throw doubt on their testimony. It has been argued that Abdullah Khan, the court witness, has admitted that 15 days prior to the date of incident he lodged a report under Section 107, Criminal P. C, against Chhunnu Khan and in that report he had cited Dildar Khan and Fateh Sher Khan as his witnesses. He, therefore, argues that Fateh Sher Khan and Fida Husain and Alldullah Khan must be deemed to be inimically disposed to-wards Chhunnu Khan and that, therefore Chhunnu Khan's presence at the time of marpit becomes doubtful. I am not impressed with this argument. Admittedly, Fateh Sher Khan and Dildar Khan, having not yet deposed against Chhunnu Khan, have not done any act to show their hostility against him. Merely because Abdullah Khan has mentioned their names as his wit-nesses in a complaint against Chhunnu Khan it cannot be said that they are hostile to him.

6. The evidence of alibi produced by the accused was disbelieved by the lower Court and the learned Counsel appearing on their behalf has frankly stated before me that he does not wish to press that evidence into service in this Court.

7. On a consideration of the entire evidence on the record I, therefore, come to the conclusion that Iddu Khan, Mallu Khan, Chhunnu Khan, Mindu Khan and Yasin Khan struck Faqir Mohammad and Ammi Khan with lathis and caused them injuries.

8. The learned Counsel appearing for the appellants further argues that even assuming that his client B caused injuries to Faqir Mohammad and Ammi Khan, this was done by them in self-defence, His argument proceeds in this way. He says there is no proof on the record that the cattle did any damage to the sugarcane crop of Faqir Mohammad and Ammi Khan, ."No damage having been done when the cattle trespassed into their field no offence was committed within the meaning of S. H, Cattle Trespass Act; and if no offence was committed under that Act Faqir Mohammad and Ammi Khan would have no right to take the cattle away to the cattle pound, and the seizure of the cattle by him and the act of taking away to the cattle pound were unauthorised and illegal. The accused, who were the owners of the cattle, and the other accused, who were their helpers, would have a right to recover those cattle, if necessary by force, and if in the act of recovering their oat- the by force they inflicted some injuries on the deceased and Ammi Khan, no offence was committed by them because the infliction of the injuries would be in the exercise of their right of self-defence.

9. It is true that Ammi Khan has merely stated that he "saw some cattle in our sugarcane field," and has omitted to state that the cattle did any damage to the crop. If cattle enter a field full of crop, damage may toe presumed. It should be remembered that damage required under Section 10, Cattle Trespass Act, is not necessarily substantial damage. It may be nominal damage. When cattle enter into a field in which sugarcane Crop is standing they will naturally trample upon or waste or graze some of the crop. The presumption, therefore, is that the cattle did in fact cause some damage. In that view of the matter, the whole argument advanced by the learned Counsel for the accused falls to the ground.

10. Assuming, however, that there was no damage then it must be admitted that no offence was committed under Section 24, Cattle Trespass Act, Satola v. Emperor A.I.R. (b) 1918 ALL. 267 : 19 Cr. L. J. 368) ; Chokat Ahir v. Suraj Singh A.I.R. (27) 1940 Pat. 299 : 41 Cr. L, J. 257) ; Dassi Goala v. Sardar Mahton A.I.R. (7) 1920 pat. 882 : 21 Cr. l. J. 640) and Suhhnandan Rai v. Emperor A.I.R. (6) 1918 Pat. 649 : 19 Cr. L. J. 157). If no offence was committed under B. 24, Cattle Trespass Act, then Faqir Mohm-mad and Ammi Khan would not be legally en-titled to take the cattle to the cattle pound. It does not, however, follow from this that they were not bona fide under the belief that they had the right to take the cattle to the cattle pound because the cattle had trespassed into their field. Where a person acts in good faith in taking away' a property, and does not intend to take it dishonestly, he does not commit the crime of theft, Emperor v. Shib Lai, 65 ALL. 617 : A.I.R. (20) 1933 ALL. 620) though he may be guilty of a civil wrong. He may be sued for damages in a civil Court but he will not be liable to be punished for an offence under the Indian Penal Code.

11. Right of private defence does not arise merely because an unlawful or wrongful act has been done. It arises only when that unlawful or wrongful act is an "offence," Ganouri Lai Das v. Queen Empress, 16 cal. 206 (218). Not only that, it must be an offence of particular kind. In the case of defence of person, it must be an offence "affecting the human body;" and in the case of defence of property, it must be either theft, or robbery, or mischief, or criminal trespass, or an attempt to commit any of these offences {vide Section 97, Penal Code). Though the action of Faqir Moham- mad and Ammi Khan may be an offence within (be meaning of Section 22, Cattle Trespass Act, nevertheless it could not give rise to the right of private defence of property as it was not an offence of the description given in Section 97, Penal Code. If no right of self-defence accrued to the accused, their action of causing injuries and death was clearly an offence.

12. It is next argued that Chhunnu Khan .and Mindu Khan and Yasin Khan merely inflicted simple injuries on the person of Ammi Khan. They did not cause injuries to Faqir Mohammad at all and that, therefore, they could not be punished under Section 304, Penal Code. All the five accused, Fidu Khan, Mallu Khan, Chhunnu Khan, Mindu Khan and Yasin Khan, came pre. pared to recover the cattle by show of force, If that was their common object, they formed an unlawful assembly within the meaning of Section 141, Penal Code. That section lays down (omitting unnecessary words):

An assembly of five or more persona is designated an unlawful assembly if the common object of the persons composing that assembly is ... by means of criminal force or show of criminal force to any person to take or obtain possession of any property ... or to enforce any right or supposed right.

13. It should be remembered that even the taking of possession of one's own property or to enforce one's own right by show of, or use of, criminal force, is unlawful unless the action can be justified as a valid exercise of right of self-defence. In the case, we have already seen that the right of private defence did not accrue to the accused. As such they formed an unlawful assembly. Their common object obviously was to recover cattle by use of criminal force.

14. Now Section 149, Penal Code, provides:

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence, Assuming that the common intention of the accused was not to cause death, yet since their common object was to rescue the cattle by use of force and to cause injuries to any one who resisted, they must be deemed to have known that it was likely that even death may be caused when lathis are used since the blow may fall on a vital part of the body. If they knew that death was likely to be caused and if in prosecution of that common object two of them, and not all, caused death to Faqir Mohammad, all of them would be guilty of the very same offence under the provisions of Section 149, Penal Code. Herein lies the difference between Sections 34 and 149, Penal Code. Under Section 34 the particular offence commit-4ed must be in furtherance of the common inten- tion of all. How, in the present case, it cannot be said that the accused had the common intention of causing death, or even causing such injuries as are likely to cause death. Hence if the accused were less than five in number all of them could not have been convicted under Section 304. Only those who actually caused death could have been so convicted, But since their number was five their case falls under Section 149, Penal Code, which section is wider in its scope than Section 34, Penal Code. Section 34 refers to cases in which several persons both intend to do and do an act. It does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act. In the latter class of cases, Section 149 may be applicable, but Section 34 is not: Anir uddha Mana v. Emperor (1925) 26 Cr. L. J. 827 : A.I.R. (12) 1925 Cal, 913). Section 149 will of course only apply if that other act was done in the prosecution of the common object of all.

15. The conviction of the accused under the provisions of Section 304, read with Section 149, Section 147 and 323, Penal Code, and Section 24, Cattle Trespass Act was, therefore, perfectly justified.

16. I see no force in the appeal of Iddu Khan, Mallu Khan, Chhunnu Khan, Mindu Khan and Yasin Khan.

17. The result, therefore, is that I allow the appeal of Faiyaz Khan and set aside big conviction and sentence, He is on bail. He need not surrender to his bail. The appeals of Iddu Khan, Mallu Khan, Chhunnu Khan, Mindu Khan and Yasin Khan are dismissed. They are on bail. They must surrender to their bail and serve out the sentence.