Ajab Narain Singh vs Emperor

Rowland, J.—In this case fourteen persons were put on their trial on charges of murder, riot and other offences before the Sessions Judge of Saran with four assessors. All the assessors were of opinion that all the accused were not guilty and should be acquitted. Thirteen of the accused were acquitted but one only Ajab Narain Singh has been convicted under Sections 304 and 326, I.P.C. and is the appellant before us.

It has been found by the Sessions Judge that the appellant''s brother Shivanandan Singh is a lessee of an island called Jazira No. 36 which is a Government estate in Ballia District within the river Sarju, otherwise known as Gogra. The island produces a sort of thatching grass called kusaila. A number of Ahirs of Semaria had gone with a boat or boats to this island, had cut a quantity of the kumara and were taking it back to their village which is on the north bank of the river Sarju and is in Saran District. The accused party came in their own boat in pursuit and tried to seize the bundles of grass. The Ahirs resisted and were reinforced by others from Semaria village which is inhabited by about two thousand houses of that caste. The party of the accused failed to recover the bundles. They were driven off and six of their number received injuries those on two persons amounting to grievous hurt. The accused party took to their boat from which shots were fired with a shotgun taking effect on three persons Dipa, Bilas and Ratan of the party of the Ahirs. The injuries on Dipa, though 116 pellets are said to have hit him, amounted only to simple hurt; Bilas was struck by 14 pellets but among the injuries was one amounting to grievous hurt. Ratan received injuries to which he succumbed.

The trial as usual in such cases was embarrassed by neither side making an altogether candid disclosure of the facts. The prosecution witnesses manifestly were out to exaggerate and make the most of the case against the accused and in particular were interested to maintain that they had rights in the kusaila grass. They were interested to conceal or minimize acts of violence done by their own party such as might afford justification or extenuation for the firing by the accused side. On the accused side it must have been well enough known to the whole of the accused party who fired the shots from the gun; but this has not been disclosed. Ajab Narain, who, according to all the direct evidence, himself fired the gun, had stated that after firing one blank shot in the air, he dropped the gun and some other person may have taken it up and fired it. He had however on the same day sent a telegram to the District Magistrate at Chapra in which he said: "I had to open firing in self defence." The Sessions Judge has found on the evidence that the gun was fired by the Appellant Ajab Narain, and there is no doubt that the evidence fully supports this finding.

In appeal Mr. Nageshwar Prasad could not seriously press his objections against it and was more concerned to maintain that on the facts found the Sessions Judge should have acquitted this appellant on the ground that whatever he did was within the right of private defence both of person and of property. The learned Judge in a somewhat lengthy and undoubtedly careful judgment has disclosed the difficulty that he felt in coming to a conclusion on this point. Examining the matter with reference to the several stages of the occurrence, he has held that the diara men (i.e., accused''s party) would have been too late to save their property had they waited to have recourse to the protection of the public authorities.

It seems to be therefore his view that the diara men had a right of private defence of property which entitled them to use all necessary force for the purpose of recovering the grass bundles from the Ahirs in the small boat. As to the lathi fight that then followed, he has pointed out that six persons of the accused party received injuries and three on the Semaria side received very trivial injuries. On that finding and in view of the fact that injuries on two of the accused party were grievous, there was a right of private defence of property which u/s 103, I.P.C., might extend to the Causing of death to the wrong-doers the offence being not merely theft but robbery within the definition in Section 390 because the offenders in carrying away property obtained by theft for that end had voluntarily caused hurt. There was likewise a right of private defence of the person which u/s 100, I.P.C., might extend to the voluntary causing of death, the assault being such as might reasonably cause the apprehension that death or grievous hurt would otherwise be the consequence of such assault. When grievous hurt to two persons was actually caused, it cannot be disputed that grievous hurt was to be apprehended. But the prosecution witnesses in their evidence have set up allegations tending to show that the firing by Ajab Narain was not done in the course of a free fight which was continuing right up to the time of the firing, but that the rioting on the part of the Ahirs had ceased and the accused party had retired to the safety of their boat and were not being further molested or in danger of molestation when Ajab Narain, perhaps for revenge, fired on the Ahirs. The majority of the witnesses examined for the prosecution are of the Ahirs caste, and this itself raises some presumption of their being not impartial witnesses, a presumption which is by no means dispelled by a perusal of the tenor of their depositions.

There is no defence evidence and the argument for the appellant rests in the main on admissions made by one or other of the prosecution witnesses at earlier stages of the investigation and commitment inquiry. The Sessions Judge applied himself to the question whether the boat of the accused was still in danger, but he seems to have found a difficulty in making up his mind. At one place he says:

It is clear that the boat had not gone into deep water and was not beyond the reach of the Ahirs who were standing in the water

and he refers to the evidence of Deyali Ahir (P.W. 9) as showing that the distance from which firing was opened could not have been more than twenty five feet. Elsewhere however he expressed himself as not convinced that the Ahirs were within striking distance of the boat. He also expressed a doubt whether there had been throwing of brickbats.

That the Ahirs were so near the boat as to be able to strike with lathis, is not, I think, the case even of the accused whose argument here has been that the Ahira were advancing towards the boat and that if Ajab Narain waited till they were so near as that, it would have been too late. If the accused can establish that much, the right of private defence must be conceded. Now, it appears in the evidence before the committing Magistrate of Shepujan Pathak (P.W. 45) that about ten of the Ahirs had gone knee-deep in the water, seven or eight of them being armed with lathis and that those ahirs might have gone into the water to catch the men in the boat with whom they had a quarrel. Sheopujan resiles from this in Court, but what he has said in the commitment proceedings is evidence.

As regards statements by other witnesses in the main, the defence has to rely on admissions to the Sub-Inspector; Mahesh Singh (P.W. 44) told the Sub-Inspector that the fat man (Ratan) was advancing towards the boat with a lathi. This witness has also admitted that he saw brickbats being thrown at the boat by persons on the bank. If that is so, assault on the accused party was in fact continuing right up to the moment of the firing of the gun. Similarly, Abdul Aziz (P.W. 18) when asked by the police what the injured men were doing, has said that they were running towards the boat of those men in water. Bilas, son of Khobari, who is one of the injured men, said that the Semaria men had rushed into the water to assault the diara people; and Sundar Ahir had told the Sub-Inspector that Ratan and other injured persons had gone into knee-deep water to assault the accused persons, Dipa, another injured per. son, had said that Ratan, Bilas and himself had gone ahead in the water to assault the accused.

Dipa had also said that brickbats were thrown. There are other similar admissions by other witnesses to the Sub-Inspector, but it is not necessary, I think, to make an exhaustive list of them. I think these admissions, taken with the circumstances, are sufficient to establish that in fact the assault by the Ahirs on the party of the accused had not ceased. It was apparently continuing in form of pelting with brickbats and was likely to assume the form of physical seizure of the boat and further attack with lathis. That being so, I think that the right of private defence did not cease to be available to Ajab Narain up to and including the time when he fired the three shots.

It is suggested for the prosecution that assuming the right of private defence might have been extended to firing one shot, the accused should not have continued firing when perhaps one shot might have been sufficient. It is impossible to say that one shot or two shots would have been sufficient to drive off the mob. The injuries on Dipa and Bilas are all in the region between the right hand and the right shoulder and the neck, and the doctor has said that such injuries might have been received from a gunshot if the person injured had been holding up his arm to throw a brickbat. As regards Ratan, the point is not quite so simple, for his injuries appear to have come not from front but from behind, the left buttock being apparently the central point. Had Ratan been the only assailant or possible assailant, one might infer from this that he had turned back on seeing the injury on Bilas or Dipa and that there was no further excuse for firing on him.

But he was a member and a leading member of the mob which might still have been advancing, and I am not, in the circumtances, prepared to hold that the right of private defence was exceeded in firing on Ratan. In my opinion, the appellant ought to be acquitted on the ground that his action was done in exercise of the right of private defenoe and is within the general exception in Section 96, I.P.C. I would allow the appeal and acquit the appellant.

Mohamad Noor J.

I agree.