In this case the Sessions Judge differing from the assessors has convicted the prisoner Asiruddin Ahmed of an offence punishable under sec. 325, I.P.C, and has sentenced him to three years' rigorous imprisonment.
The case for the prosecution is briefly as follows:—Asiruddin accompanied by a Civil Court peon and a considerable number of men, some of them armed with lathis, came to the house of the complainant Roushan to realise a decree for a sum of Rs. 16. Roushan went away to try to raise the money in the village. While he was absent the peon attached his bullocks, one of which ran towards the female apartments. This resulted in an altercation and the use of abusive language in consequence of which Asiruddin in anger seized a bursha from the hands of one of his companions and dealt a blow on the head of Horoom, one of Bonshan's sons, with the back of that instrument felling him to the ground unconscious and causing his death within a few hours.
The prosecution have examined 7 eyewitnesses including Boushan who reappeared on the scene as he says, after his son had been knocked down and lay unconscious.
The defence called no witness. The accused put in a written statement to the effect that the peon had attached Boushan's bullock, and that he with two or three men was with the peon and had got some distance with the bullock when they were set upon in force, he himself being beaten, and the bullock was rescued, and that in the course of the riot one Bhagal brandished a lathi, but whether he struck Horoom or not he is unable to say.
It has been objected that the evidence for the prosecution does not agree with the case set out in the first information. No doubt the witnesses have sought to exaggerate the number of men by whom the peon was accompanied, but as to the omission of details from the first information that is readily explained by the fact that Boushan proceeded in a great hurry to the thana after finding his son wounded and unconscious and without having time to inquire minutely about all the details. Moreover, the first information report does not usually or necessarily enter fully into details.
It has further been objected that the prosecution ought to have examined the Civil Court peon and some other eyewitnesses who were sent up by the Police. The peon and those witnesses were summoned by the accused to appear at the Sessions and were there present. The Government pleader intimated to the Court that he had reasons to believe that the witnesses might have been gained over and that the peon at all events by lodging an information at the time against the complainant and his relatives had proved himself to be hostile and that the prosecution did not expect him to give true evidence. The fact that the peon and those witnesses had been summoned for the defence was an additional reason why the prosecution should not call them.
Now we think there can be no doubt that whatever may be the details of the occurrence Horoom met his death by a blow from a hard blunt weapon delivered by the accused Asiruddin. There is no evidence that this was done whilst Asiruddin and his companions were attempting to prevent the attached bullock from being rescued; though we must say that it is quite possible that some such occurrence took place as the accused has stated, because he himself received some injuries which are not accounted for by the witnesses for the prosecution; and further it has been elicited that some of the witnesses for the prosecution removed themselves from the scene after the event and had to be sent for by the Police indicating that they were conscious, that they and their friends were not altogether in the right. However this may be, the law requires that when one man takes away the life of another man, he should show circumstances which justify his doing so. Even assuming that the accused was exercising the right of private defence it lay upon him to show that he did not exceed that right, and the onus lay upon him to prove the circumstances from which the Court might conclude that he was justified in going to such an extreme length as causing grievous hurt by killing a man. We cannot go upon surmises as to what took place. We are bound to decide upon evidence so far as we find it credible and we cannot assume the existence of circumstances which the accused has refrained from substantiating.
In the result we are of opinion that the accused is guilty of the offence of voluntarily causing grievous hurt, and as the sentence is a moderate one we confirm it and dismiss the appeal.
N.G
Appeal dismissed.