Sunder Buksh Singh And Others v. Emperor Opposite Party.

Manuk, J.:— The appellants, five in number, have been convicted at a trial held by the Sessions Judge of Saran with the aid of assessors as follows:

Sunder Bax Singh, appellant 1, has been convicted under Ss. 148 and 326, I.P.C, and been sentenced to three years' rigorous imprisonment under S. 326, there; being no separate sentence under the other section. The other four appellants, Ram Khelawan Singh, Reka Singh, Ram Tahal Singh and Patti Singh, have been convicted under S. 147, I.P.C, and sentenced to 18 months' rigorous imprisonment each. The common objects set out in the charge under S. 148 were to enforce the right or supposed right of Sunder Bux to a field, the gram crops of which Ghansham and Biran were harvesting and to assault them. In their appeal to this Court the learned counsel on their behalf has raised an important question involving the right of private defence of both property and person, which calls for a narration of the facts in some detail. As the success or failure of such a plea invariably turns upon the facts found, it is necessary to clear the facts before we proceed further.

2. The case for the prosecution was that on the day in question, in the morning at 2 gharies after sunrise, Biran Singh, P.W 1, and Ghansham Ahir, P.W 2, were cutting gram in a field in Hakma village, which field Ghansham Ahir claims as his, when Sunder Bux, appellant 1, came with a mob of 16 or 17 persons, including the other four appellants before us, armed with various weapons, such as swords, garansas and lathis. Sunder Bux asked Ghansham why he was cutting the crops. Ghansham replied that he was cutting the crops because he held the field on batai under the zurpeshgidar and, on being requested to leave the field, Ghansham refused to do so. Sunder Bux and his companions then prepared to assault Ghansham and so the latter retreated a little way from the field. Sunder Bux then hit one Biran Singh, who was with Ghansham, with a sword on the left side of the head causing an incised injury, for which Biran was treated in hospital for over 20 days. The second appellant Ram Khelawan also hit Biran a slight blow with a garansa on the top of his head. Biran fell and received other injuries including a spear wound on the leg. Ghansham ran away and Biran remained lying in the field unconscious. When he recovered consciousness everyone had gene. According to the medical evidence, except the injury on the head which was severe all the other injuries were slight in nature. The Grown case in the lower Court was somewhat different from the above version, which was really the case alleged by the private prosecutor. The Crown case was that besides Biran and Ghansham who were actually cutting the crops, there were also a number of men armed with weapons on their side in the field and that when Sunder Bux turned up with his party, a fight ensued in the course of which Beni Singh was killed by one of Ghansham's men and Sunder Bux and Ram Tahal, the two appellants before us, were assaulted and received several injuries, whilst on the other side Biran received the injuries mentioned above.

3. With regard to the possession of the field there was also a complete conflict between the case of the private prosecutor and the case of the Crown, Into the details of that dispute it is not necessary for us to go, for it has been found by the learned Sessions Judge, and accepted by the Crown here as it was in the lower Court, that Sander Bax had all along been in possession both de jure and de facto of the field in question up to the morning of the occurrence, when Ghansham's party unlawfully trespassed upon the field in the absence of Sunder Bux and began to get the crops cut. The defence version of the occurrence may best be stated by quoting Sunder Bux's own first information in the counter case lodged at Garkha Thana at 11-30 in the morning of the 23rd March, on which date the occurrence took place. A summary of that report is as follows:

At about two gharis after sunrise on the 23rd March he was informed by his nephew Ram Khelawan, one of the appellants, that Ghansham, Biran, Narsingh and Din Dayal were cutting his gram crop, so he went there alone to remonstrate. They threatened to kill him so he returned to the village and then came back to the field with his servant Beni Singh (subsequently killed in the riot) and with Rekha Singh, son of Beni and Ram Khelawan, his nephew. He saw a number of men, including one Ram Kishun Singh, armed with various deadly weapons sitting upon the eastern boundary of the field. He asked them why they were getting his field looted; Ghansham then assaulted Sunder Bux with a lathi; then Beni Singh pushed Sunder Bux aside and remonstrated with the people. The mob on the bundh stood up and Ram Kishun Singh ran up and struck Beni with a garansa on the left side of the neck and killed him on the spot. The assailants then ran away.

4. It is important to mention here that the thana is 1½ miles from the place of occurrence, which in its turn is something under a mile from the village in which the appellants reside. It is also an admitted fact that Sunder Bux, after seeing the prosecution party on his field interfering with his crops, sent one Mohit, Choukidar of the village, to the thana with a report of what was going on. That report was recorded by Muhammad Rafique, Writer Head Constable, a witness in this case, at 10-30 that morning in the Station Diary. No explanation of his somewhat dilatory journey has been elicited. It appears that the Writer Head Constable with two constables then proceeded to the spot and on the way met Sunder Bux, Reka and Ram Khelawan with the corpse of Beni Singh. The Writer Head Constable took the party back to the thana and recorded Sunder Bux's first information report at 11-30 at the thana. The counter first information was not recorded till 8 o'clock that night.

5. In this conflict of the evidence with; regard to the incidents of the actual occurrence which led to a serious breach of the public tranquillity and to the death of one man and the causing of grievous injuries to several others, we expected some assistance from the findings and conclusions arrived at by the learned Sessions Judge who had the advantage of hearing the witnesses and appreciating their truthfulness, but on turning to the judgment for assistance on this point we are much disappointed to find that the judgment in this respect was of little or no use to this Court in helping it to come to a conclusion on the facts. It is obvious that if possession is once conceded, as it has been conceded, and was conceded at the trial in the Sessions Court, to the appellants, the findings of fact on the sequence of events which led up to the occurrence are of the utmost importance in deciding the question of law as to whether the appellants were protected by the provisions of the Code with regard to the exercise of their right of private defence of property, or person, or both. The learned Sessions Judge has no doubt in one part of his judgment discussed in a superficial manner this question of the right of private defence. He observes:

“Now I am of opinion that Sunder Bux was not justified in his collecting a number of men in this way, and in going to the field in order to prevent the crop from being cut. The thana was close at hand (about, a mile or ½ miles away).”

6. He then proceeds to say that as Sunder Bux had sent Mohit Chowkidar to the thana, he should certainly have awaited the arrival of the police, and further that as the police arrival on the scene shortly afterwards and only a very small quantity of gram was actually cut, Sunder Bux was not justified in acting as he did. Now, these general observations are of no use when it is first necessary, as we have said, to come to precise findings both with regard to the sequence of events and the part played by each party to the occurrence.

7. Getting no assistance from the learned Sessions Judge's judgment, we appealed to the learned Government Pleader, who finds himself in the difficult position of being compelled to admit that it is impossible from the judgment to gather what are the findings of facts so important to the decision of the question of the right of private defence. He there, fore invited us to enter into the evidence of the witnesses and constitute ourselves a Court of first instance in order to supplement the judgment of the lower Court. We have heard those portions of the evidence which he wished to place before us read out, but they gave us little or no assistance having regard to the admitted fact that the witnesses from whom they come are obviously witnesses of untruth. They come to support a totally false story of Ghansham's possession. The Crown itself has had to reject their version on this point. Their narrative of the events both before and during the occurrence is unconvincing and their attempt to fix upon Sunder Bux, the principal accused, the only serious injury caused to one of their party is, to say the least of it, extremely suspicious, We, therefore, deem it highly dangerous to accept their evidence as a basis for our findings. Nor would it be fair to the appellants to do so, having regard to the fact that the learned Sessions Judge has, so far as we can gather, preferred the version given by Sunder Bax himself in his first information report. I say “so far as we can gather” advisedly, because even this is not clear from the judgment. He has used it as against the appellant Sunder Bux for another purpose but, as the learned Judge nowhere indicates that he does not accept this version, we are of opinion that it is only fair and proper for us to accept it as the foundation for our findings. It is in any case the most reliable evidence to act on in this record.

8. Failing to get any assisstance from the learned Government Pleader through no I fault of his, for he has in his usual courteous, fair and able manner helped us to the best of his ability, we were anxious to know what the assessors had thought of the evidence on the important questions of fact involved in the case. On turning, however, to the record of their opinion to be found at the head of the judgment, we ware once again disappointed to find that though they were asked numerous questions, nothing specific as to the incidents of the occurrence had been put to them and that, therefore, they, as laymen, had naturally floundered in the generalities of such questions as “Are any of the accused persons guilty of any offence?” “Is the offence of rioting proved against any of the accused?” Now, whatever may be said as to the sufficiency of these general questions in an ordinary case of rioting, there can be no two questions that they are utterly insufficient in a rioting casa in which the Crown has admitted the possession of the accused and the accused themselves have strenuously urged the plea of private defence. It should be remembered by the Sessions Judges of our province that assessors are laymen to whom the niceties of the law of private defence are a sealed book. Without assistance, in the shape of specific questions, concerning the facts upon which the law will turn, they would naturally, in answer to questions such as I have quoted above, reply, as they have replied; “It appears to me proved that he committed rioting,” “In my opinion all the accused parsons, are guilty.” These are verbatim extracts from the record of their replies. It is however interesting to see that in spite of the absence of any assistance from the learned Judge, one of the assessors undoubtedly had at the back of his mind a dimly conscious feeling that merely because there had been a breach of the public tranquillity and people had been injured, it did not follow that the accused, were, in the circumstances of this case, guilty. To the question; “is the offence of rioting proved against any of these accused?” the first assessor answered as follows: “Sunder Bux Singh collected a mob for his own field”. There is a distinct indication in that answer that the assessor was of opinion that the mob had been collected not necessarily with an unlawful common object, but in order to protect the property of Sunder Bux. That answer should have given the learned Sessions Judge a clue to what was working in the mind of the assessor, namely, a desire to be instructed as to the facts on which the question of the guilt of the accused, in the circumstances of the case, might turn. But instead of welcoming this indication the next question the learned Sessions Judge put was: “Is it proved that Sunder Bux Singh committed rioting?” and the answer was only what one might expect. “It appears to me that he committed rioting”. It is difficult to see how the assessor could have got out of giving this answer having regard he had just said, namely, “Sunder Bux Singh collected a mob for his to what own field”.

9. Speaking for myself, I hold very strong views about the duties of Sessions Judges is regards the questions they should put to the assessors, especially in cases of this class where the eventual decision turns on a mixed question of fact and law. I speak from personal experience in a case conducted in this province before a learned Sessions Judge and assessors in which the accused raised a plea of the right of private defence. The assessors, who were ignorant of the law of private defence, were asked general questions. Their replies were in the same general terms unfavorable to the accused. On my pressing the learned Sessions Judge to expound to them even shortly what the position would be having regard to the provisions of the law of private defence or to put them more specific questions, he readily acceded, with the result that the assessors immediately turned round and said that in that case they found the accused not guilty. It is therefore that I have entered into this question at some length in the hope that these observations from this Court will bear fruit.

10. To turn to the case itself, the only question that remains is to decide whether, even accepting the first information report of Sunder Bux as the true version of the occurrence, it is open to the accused to successfully raise the plea of the right of private defence of property or person, or both. Mr. Sinha, for the appellants, has strenuously urged that Sunder Bux did all he possibly could do and showed great forbearance, although confronted with a dishonest and criminal interference with his rights; that he sent information to the thana and that it was not his fault that before the thana authorities arrived on the scene a breach of the public tranquillity was forced on his party. The learned Government Pleader on the other hand has equally strenuously urged that it behoved Sunder Bux to wait quietly in his village before taking any steps and to wait on apparently for an indefinite amount of time, until the police authorities arrived. He therefore argues that the appellants are barred by S. 99, Cl. (3), I.P.C, from raising the question of the right of private defence. Now, cases in which this question is raised must be decided strictly on their own facts and previous decisions are only useful in so far as they indicate the general principles which may apply to an approximately similar set of facts. No hard and fast rule can be laid down and the boundary line is often so fine that a single circumstance may turn the scales either in favour or against the party asserting this right.

11. The answer to the learned Government Pleader's contention in my opinion if that if Sunder Bux, after sending information to the thana, had quietly remained in the village till the thana authorities appeared, it was more than possible that those who trespassed on his field would have carried away the whole or a portion of his crops before the authorities could arrive. He was therefore justified in collecting his men and arming them if necessary sufficiently to prevent the crops being removed from his field in the event of the police not arriving in time.

12. The next question is and this to my mind is the crucial question in the case: what happened when Sunder Bux and his party arrived on the field? As I have said we accept the version given by Sunder Bux in his first information report even as the learned Judge has apparently accepted it. That being so we find that when he arrived on the field with his party, Sunder Bux asked the trespassers why they were getting his field looted. This was a perfectly legitimate question for him to put. On this Ghansham immediately assaulted him with a lathi. We are of opinion that the moment this assault on Sunder Bux took place the right of private defence of person certainly and of property as well probably immediately arose and that for the subsequent events the prosecution party in this case is to be held entirely and solely responsible. Had Sunder Bux on reaching the field immediately ordered his party to assault the trespassers, I might not have been disposed, speaking for myself, to accede to the plea of the right of private defence having yet arisen; but the circumstances here are entirely different. The quarrel was forced on Sunder Bus when he went merely to protect a possession which was his. He was therefore entitled if violence was used to meet violence with violence and there is nothing whatever to indicate that he would not have been prepared to wait for the arrival of the police, if the initial violence had not proceeded from the pro section party. Had the thana been further away or public authority more difficult of access, I would have been prepared to hold that Sunder Bux had a right to drive the trespassers from his fields provided he did not exceed that right. Under these circumstances we are of opinion that the convictions and sentences in this case must be set aside and we hereby do so; and direct that the appellants be immediately released or discharged from their bail.

13. I desire to add one more word on the question of the sentences. In the counter-case (Criminal Appeal No. 120 of 1918) in which my learned brother has just delivered judgment with which judgment, I am in entire agreement the learned Sessions Judge imposed sentences of two years' rigorous imprisonment on each of the only two persons who were convicted out of the 17 persons put on trial. We find it difficult to appreciate the learned Judge's methods of apportioning sentences. On the side of Sunder Bus one man was killed as I have said, two others received several injuries. On the other side only one-man had a severe injury. Possession of the field lay admittedly with Sunder Bux and on the learned Judge's own findings the not which occurred originated with the wrongful acts of Ghansham and his party. Yet we find that in this case the learned Sessions Judge has thought fit to sentence one of the appellants to three years' rigorous imprisonment and the others to 18 months' rigorous imprisonment each. It is sufficient to say that these sentences, in our opinion, are even if the accused could not have successfully pleaded the right of private defence owing to some technicality, much too severe and based upon a complete misappreciation of the extreme and sustained provocation which the accused in this case received.

14. Atkinson, J.:— I concur.

V.S/R.K

15. Convictions set aside.