Mullick, J.:— (after stating the facts of the case as set out above, proceeded as follows):—
Before proceeding to deal with each appeal separately, it is necessary to observe that neither the Public Prosecutor nor the learned Judge nor in one case the assessors seem to have believed the respective accounts of either party regarding the origin of the fight. The police were inclined to believe the ‘cherai’ (grazing) story but in the Sessions Court the Public Prosecutor appears to have boldly told the Court that he would not support either that story or the paddy cutting story and he set up altogether a new theory, namely, that both sides by agreement had fought a pitched battle. The learned Judge has accepted that view with the result that a situation of some difficulty, has arisen before us.
In the case against the Chainpurwa and Naraon men the accused cross-examined the prosecution witnesses in order to show that their story as to the grazing and the capture of cattle was false, but they did not call any evidence to show that their own account as to the paddy cutting was true. Some of them, however, went to considerable trouble to call evidence to prove alibis.
In the counter case the Gopalpur men took the same course and one of the assessors was inclined to believe the story of paddy cutting set up by Ram Andeshi.
Before us the learned Counsel for the appellants, in both appeals, have had a somewhat easy task in overthrowing the finding of the learned Judge that there was a premeditated and preconcerted fight, for the simple reason that there is no evidence whatsoever upon which such a finding can be based the learned Judge in the case against the Chainpurwa men relies on the evidence of prosecution witness Sukan Ahir, but that evidence, in my opinion, proves very little. It merely shows that the two sides were at enmity with each other and that a fight did take place. It altogether fails to show how the fight originated and it cannot warrant the inference that the parties turned out by agreement to have a fight merely for the sake of fighting.
Mr. Hasan Imam on behalf of the Chainpurwa and Naraon men and Mr. Manuk on behalf of the Gopalpur men, therefore, both contend that as the learned Judge's finding cannot be supported and as he himself has disbelieved the prosecution story in both cases the convictions cannot possibly be maintained.
The learned Government Advocate, however, takes up the following position. He agrees with the police in accepting the ‘cherai’ theory and contends that the conviction of the Chainpurwa and Naraon men is correct on the ground that they formed an unlawful assembly with the common object of assaulting the opposite party who had lawfully seized their cattle.
With regard to the counter case, the learned Government advocate admits that the allegation of paddy cutting is false, but he does not accept Mr. Manuk's contention that the Gopalpur men acted in the exercise of the right of private defence of person and property. The learned Government Advocate contends that in this case the right of private defence did not arise and that the Gopalpur men went to the assistance of Mukhram Singh not for the purpose of defending him but for the purpose of having a trial of strength with their enemies. It is obvious, therefore, that the Crown has an easier task in appeal No. 20 of 1923 than in appeals Nos. 21 and 22.
[After discussing the evidence in, and deciding Appeal No. 20 and Death Reference No. 6 of 1923, his Lordship proceeded as follows]:—
Appeals Nos. 21 and 22 of 1923 and Death Reference No. 7 of 1923.—In this case out of seventeen men from Gopalpur, whom the police sent up for trial under the orders of the Superintendent of Police and against their own judgment, only ten were convicted. Out of these ten men the appellant, Ram Nareshi alias Nareshi, has been sentenced to death and the remainder have been sentenced to transportation for life, under section 302 read with 149.
The learned Judge states that he is not in a position to find which of the accused caused the deaths of Deonandan Singh, Kamla Singh and Deepan Singh, but he finds that one or more members of the unlawful assembly committed murder by killing these men in prosecution of the common object of the unlawful assembly.
As in the counter case, the learned Judge has declined to accept the story that Deonandan and Kamla caught a number of ahirs of Gopalpur cutting their paddy. The Gopalpur men, who were the accused in this case, have given no substantive evidence in proof of their allegation that the riot originated out of a seizure of cattle by Mukhram Singh, but fortunately for them the prosecution have put upon the record the evidence given by the appellants in the counter case when they were prosecution witnesses. It is clear from that evidence and from the reasoning of the learned Judge that the account given by the Gopalpur men as to the origin of the riot, is substantially correct.
There is no evidence in support of the theory put forward by the learned Judge that the Naraon and the Chainpurwa men came to remonstrate with the Gopalpur men as to the cattle grazing of the previous day and of previous acts of aggression and that a quarrel broke out in which both parties joined and engaged in something in the nature of a pitched battle.
The learned Government Advocate, however, contends that, accepting that the riot originated as 9 alleged by the Gopalpur men in the seizure of cattle by Mukhram Singh, yet this is a case in which no right of private defence can be claimed by the Gopalpur men. He contends that in taking the cattle to the orchard of Mukha Singh and collecting reinforcements and in awaiting the attack of the Chainpurwa and Naraon men the appellants in this case were clearly members of an unlawful assembly, and he relies strongly upon Kabiruddin v. King-Emperor. In that case the learned Judges appear to have approved of the following statement of the law as given in the Sessions Judge's charge to the Jury. “In laying down the law I rely, first, on the clear language of section 141(4), which refers to an actual right as well as a supposed one, and then on a long series of rulings which begin with Queen-Empress v. Jeolall and end with Anant Pandit v. Madhusnduu Mandal. There can, I tell you, be no right of private defence, either on one side or on the other, where both parties are evidently aware of what is likely to happen and turn out in force. The right of private defence cannot be pleaded by persons who, expecting to be attacked, go out of their way to court an attack. When the parties of the complainant and accused are prepared to fight, it is immaterial who was the first to attack, unless it be shown that the accused were acting in the exercise of the right of private defence. If the accused—it was held by the Judges at Allahabad not many years ago [see Queen-Empress v. Prag Dat]—were determined to vindicate their Supposed rights and engaged in a fight with, men equally determined to vindicate them no question of private defence can arise. It comes to this simply, that our law does not permit rival claimants to enter in cold blood into battle to settle a dispute which can be settled in a lawful manner.” And the learned Judges of the Calcutta High Court draw attention to the words of Holloway, J. in Hyde v. Graham where I that learned Judge observes as follows: “The natural tendency of the law of all civilised states is to restrict within constantly narrowing limits the right of self-help, and it is certain that no other principle can be safely applied to a country like this.”
It is clear, however, that the decision in Kabiruddir's case was founded on the fact that the question of possession was in dispute and that the appellants before their Lordships were members of an unlawful assembly, firstly, because they were attempting to enforce a right or a supposed right by violence, and secondly, because there was sufficient time to inform the authorities. Where, however, possession is undisputed or where there is no time to seek the assistance of the authorities, I cannot agree that there is any obligation upon a person entitled to exercise the right of private defence and to defend his person or his property to retire from the field merely because his assailant threatens him with violence. I see nothing wrong on the part of the Gopalpur men in awaiting the coming of their antagonists and in maintaining their possession of the cattle which they had lawfully seized. The law did not require them to retire as soon as Deonandan and Jaji went away to fetch reinforcements. The learned Government Advocate seems to suggest that it was their duty to release the cattle and to complain to the authorities, but I entirely disagree with him. He next contends that it was not their intention to impound the cattle at all; and that their object was merely to fight for fighting's sake; and he relies on the circumstances that they remained in Mukha Singh's orchard for an hour before the fight began. There is, however, no clear evidence in support of the theory that the common object of the Gopalpur men was not to resist aggression but to resort to the ordeal of battle. The facts are equally consistent with their allegation that they did intend to take the cattle by the Local Board road and that as it passes Chainpurwa it was necessary for them to collect men in order to resist a possible attack. Something might perhaps have been said for the learned Government Advocate's theory if they had let the cattle go and had then assembled on Mukha Singh's orchard and given a challenge to the other side to come there and fight; but the evidence does not disclose any such conduct and as the rescue of the cattle amounted to theft under the Indian Penal Code, apart from an offence under the Cattle Trespass Act, the right of private defence of property was, in my opinion, clearly available to them. As a matter of fact the cattle escaped in the course of the fight and in my opinion it is established that the Gopalpur men did intend to maintain their possession of them.
Again, if the Chainpurwa and Naraon men entered upon Mukha Singh's plot without the consent of the Gopalpur men and with the object of committing an assault, then they were guilty of the offence of criminal trespass, and the Gopalpur men had the right to eject them by such force as was necessary. It would have been otherwise if the entry was made in answer to a challenge to fight, but of this there is no evidence.
I think then that the appellants are entitled to plead section 97 of the Indian Penal Code and the only question is whether the force used was excessive.
Having regard to the savage nature of the attack and to the fact that no less than five of their men were killed I cannot say that the right of private defence was exceeded by the appellants. As was observed by Jenkins, C.J, in Bhut Nath Dome v. King-Emperor, a man acting under an apprehension of death cannot be expected to judge too nicely the force of his own blow; and the common law of England which is substantially also our law on this topic says that he is not bound to modulate his defence step by step according to the attack before there is reason to believe that the attack is over; he is not obliged to retreat but may pursue his adversary till he finds himself out of danger and if in a conflict between them he happens to kill, such killing is justifiable.
The evidence is that the attack was commenced by the Chainpurwa and Naraon men and in my opinion the Gopalpur men did not use unnecessary force in repelling it.
The learned Counsel for the appellants, in one part of his argument, seemed to suggest that once the right of private defence is conceded there can be no conviction under section 302 read with 149. He contended that individuals might perhaps be convicted of exceeding the right of private defence but there could be no conviction of the other members of the assembly of that excess by implication, and he relied on Kunja Bhuiya v. King-Emperor. I do not, however, understand that case to lay down any such general proposition. In my opinion the law is that if the members of an assembly act with the common object of exceeding the right of private defence, then they are not only all generally guilty of rioting but also of the particular offence constituted by such excess of user.
Under our law an assault is a crime except under certain special circumstances. But in one sense criminal force is a continuing wrong and there is a limit where the plea of justification ceases to operate and the liability to punishment revives; if one member in prosecution of the common object of an assembly exceeds that limit every other member shares with him the guilt of his act.
In the present case, however, the right of private defence not having been exceeded the question does not arise.
The result is that the conviction and sentences must be set aside, and, acquitting the appellants, we direct that they be set at liberty.
Adami, J.:— I agree.
Convictions and sentences set aside.