Dorik Gope and Others vs Emperor

Ray, J.—This appeal is directed against the judgment of the Additional Sessions Judge, Purnea, dated 14th April 1945, convicting the appellant Dorik Gope u/s 802, Penal Code, and sentencing him to transportation for life, and convicting the appellants Jadu Gope and Sundar Gope u/s 324, Penal Code, sentencing them each to undergo rigorous imprisonment for two years.

The prosecution case is that Sarabjit Gope had taken settlement of 2.68 acres of land recorded in plot No. 1076 of Tola Ohakla of village Barahpara from Babu Gajanand Thakur, the then proprietor of the Balua Estate, in 1822 B.S. This settle, ment was followed by possession which, according to Sarabjit, was with him until the date of occurrence. In support of this settlement and possession, he produced an unregistered patta (Ex. 1) and rent receipts (Exs. 4 to 4-d). He further said that in the present year Sarabjit had cultivated the land with his own servants and had grown Bhadai and Agaihni paddy and that on 23rd August 1948, he had cut and appropriated the Bhadai paddy that stood on the eastern portion of the land. On 6th September 1948, he had sent his servant Singheshwar Gope in Charge of certain female labourers and one male labourer Santu Nonia to reap the remaining Bhadai paddy. Singheshwar, on arriving at the field, found a mob of about 200 men under the leadership of the appellant Dorik Gope armed with various weapons such as bhala, swords, pharsas and lathis coming towards the field. On seeing this, he sent the aforesaid male labourer, Santu Nonia, to Sarabjit to inform him about this. Thereupon, Sarabjit came to the field along with Chul-hai Gope, Bhutai Gope, Gosai Gope, Ajab Lal Gope and Hardayal Gope with the object of settling the matter with the opponents. On arriving they found that there was exchange of words going on between Singheshwar and Dorik in course of which Dorik as also his associates Sundar and Jadu were insisting upon cutting the paddy, while Singheshwar was asking them to stop till his malik, meaning Sarabjit, would come and settle the matter amicably. It is said that upon this Dorik struck a blow on the left side of Singheshwar with his bhala as a result of which Singheshwar fell down dead. On this, Hardayal, his uncle, protested and ran to the aid of Singheshwar. He was, however, assaulted by Jadu and Sun-dar with swords. On account of this assault, Hardayal sustained certain injuries. Finding '' that Singheshwar was dead, the mob led by Dorik fled away. This happened on 6th September 1943, between 10 A. M. and 12 noon.

Sarabjit proceeded to the police-station Forbasganj which is eight miles from the place of occurrence and lodged his first information report at 6 P.M. The officer in charge of the police-station came to the locality at 12 midnight the same day, and sent the dead body of Singheshwar for postmortem examination and sent Hardayal for medical examination of his injuries. Sarabjit named 18 persons as being amongst the rioters including the present three appellants Dorik Gope, Jadu Gope and Sundar Gope.

On post-mortem examination on the body of Singheshwar, it was found that he had sustained one penetrating incised wound 1" x 3/4" abdominal cavity on the left side of the abdomen between the 8th and 9th ribs at the junction of costal cartilage with the ribs. Abdominal wall was found penetrated. Peritoneum was perforated. Stomach was perforated at its ossophageal end. According to the doctor, death was due to shock and haemorrhage due to the injuries received.

Hardayal Gope (P.W. 2) was found to have the following injuries, namely, (1) cut mark 2 1/2" x 1/4" x 1/4" on the right elbow, (2) cut mark 1/2" x 1/4" x 1/4" on the base of the left little finger, (3) cut mark 1 1/2" x 1/4" x 1/4" on the base of the left ring and middle fingers, and (4) cut mark 1/2" x 1/2 x 1/2" on the tip of the left index finger. The doctor opined that the injuries were simple in nature caused by sharp edged weapon such as sword.

The Sub-Inspector of Police, after investigation, charge-sheeted all the 18 accused persons named in the first information report, and eventually they were committed to the Court of Session and were tried by the learned Additional Sessions Judge of Purnea. Dorik Gope was charged u/s 302, Penal Code, for having committed murder by intentionally causing the death of Singheshwar Gope. The other 17 accused persons named in the first information were charged u/s 302/149, Penal Code, for having abetted the commission of murder of Singheshwar by Dorik. Dorik, Jadu, Sundar and two other persons, since acquitted, were charged u/s 148, Penal Code, for being members of an unlawful assembly armed with deadly weapons such as swords and bhalas in prosecution of the common object of such assembly, namely, to cut paddy forcibly from the paddy field belonging to Sarabjit and thus having committed the offence of rioting punishable u/s 148, Penal Code. The other thirteen persons were charged u/s 147, Penal Code, for being members of an unlawful assembly with the common object of forcibly cutting away paddy from the field of Sarabjit Gope. Lastly, Jadu Gope and Sundar Gope with another, since acquitted, were charged u/s 324, Penal Code, for having voluntarily caused hurt to Hardayal Gope by swords which are sharp cutting instruments.

The defendlf of the accused persons was that the occurrence as alleged is not true. The land in dispute was taken settlement of by one Durga Jha from the common manager of the Balua Estate in August 1942, as per a registered kabuliat. Durga Jha was in possession of the said land through his adhiyadar Sahdeo since then. The Bhadai and Agahni crops grown on the disputed plot had also been grown on adhiya system by the same Sahdeo as under-raiyat of Durga Jha.

On the date of occurrence Sahdeo and Dhaturi were reaping a part of the Bhadai crop under the supervision of Bhulku, a servant of Durga Jha. While they were thus reaping the paddy, Sarabjit, the complainant, brought a mob of fifty or sixty people who were armed with swords, ballam, pharsas, bows and arrows, lathis and kachias. They began to reap the paddy and were opposed, by Bhulku. On this, Bhulku was assaulted by Asharfi, son of Sarabjit, with an arrow and was also struck by Singheshwar, deceased, with garhail. Dhaturi was struck by Chulhai with ballam and by Banku with an arrow after which all of them, that is, Sahdeo, Dhaturi and Bhulku fled. They had no arms and they cannot say who struck Singheshwar, who, according to them was not assaulted so long as they were there. The other accused persons pleaded not having been present nor having taken part in the riot at the time of occurrence. On the respective cases of the parties, the question of the right of private defence of property and person arose and for determination of this question the fact of possession and ownership of the disputed plot 1076 came to be considered. The learned Additional Sessions Judge finds that the unregistered patta of the year 1322 by which the disputed land was settled by Gajanand with Sarabjit is a genuine document and so are the rent receipts Exs. 4 to 4-d. The learned Judge, in this connection, observes:

So, I have no doubt that the contention of the prosecution that the land in question was settled with Sarabjit by Gajanand Thakur is correct, and I have also no doubt that he was in possession of it for some time.

With regard to the present possession, however, the learned Judge holds: "So his claim that at the time of the occurrence he was in possession of the land does not appear to be correct." According to the learned Sessions Judge, for some time after Sarabjit ceased cultivating the land, it used to remain parti for years together till Durga Jha took settlement thereof as spoken of above, and started cultivating through his bataidar Sahdeo Nonia. That Sahdeo Nonia cultivated the land and grew the crops in the year before the occurrence is admitted by prosecution witness Santu Nonia as also by some of the other prosecution witnesses. Thus considering the admitted facts and the documentary evidence produced by the defence, the learned Judge finds:

So, I have no doubt that at the time of the occurrence Durga Jha was in possession of the land through his bataidar Sahdeo Nonia under a settlement taken by him. No doubt a different view, on consideration of the evidence on record and the circumstances disclosed, can be taken about the present possession of the disputed land and the crops thereon. But neither party having contested the point and the learned trial Court having come to its finding about the present possession, it will be assumed, to be so, for the purpose of this case. Before proceeding further, what appears to me to be a point of great significance is that admittedly on 23rd August 1943, Sarabjit had cut and taken away the Bhadai paddy crop from the eastern side of the khasra plot No. 1076 which is claimed to have been grown by Durga Jha''s bataidar Sahdeo Nonia. Durga Jha filed a petition of complaint in the Court of the Magistrate having jurisdiction on 25th August 1943, charging Sarabjit and some of his men with offences under Sections 379, 143 and 447, Penal Code, and Durga Jha in his deposition in support of this contention said ''I got settlement of the land from Balua Estate three years back. The accused wanted settlement but could not get it and hence they created the trouble. Last year the accused did not create any trouble. Year before last also the accused did not create any trouble. I informed the police about fifteen days back that the accused would reap the paddy. I was asked to come to Court.''

It is now admitted that this petition of complaint was dismissed, the learned Sub-divisional Magistrate being of opinion that the complainant Durga Jha was not in possession of the land as claimed by him. It appears that no further action was taken by Durga Jha as against this order, nor any steps of prohibitive character whatsoever were taken by him to safeguard his right and possession over the property. The learned Sessions Judge, with regard to facts bearing upon the occurrence, records certain findings which have also not been agitated before us. I proceed to enumerate them one by one: (1) The contention of D.W. 4, Sahdeo Nonia, that he along with Dhaturi was peacefully reaping the paddy under the supervision of Bhulku, a servant of Durga Jha, when all of a sudden Sarabjit came there with a mob and began to assault them cannot be accepted as correct; (2) Both parties went there armed ready to fight; (3) All the accused persons named in the first information report were present at the occurrence on the side of Durga Jha; (4) The two parties, namely, that of Sarabjit and Durga Jha were on terms of enmity with each other; (5) There is no satisfactory evidence to show that Durga Jha and his brothers had previous information of the intended reaping of the paddy by the men of Sarabjit which could have made them seek the protection of police in time instead of assembling men to ward off an intended attack.

After having arrived at these findings, he acquits the accused persons of the offences under Sections 147 and 148, Penal Code, with which they had been charged inasmuch as the common object of the assembly as stated in the charge was not established. In view of his findings, the paddy field did not belong to, nor the paddy had been grown by Sarabjit, the complainant, and with these findings I agree.

In convicting Dorik Gope of the offence of murder u/s 802, Penal Code, he arrives at the following findings: (1) There can be no doubt that the person who gave the bhala blow to Singheshwar had intention to kill him or at least knew that the injury which he was going to inflict on him was likely to cause his death. (2) He has no reason to disbelieve the evidence of the witnesses who have spoken that the bhala blow on Singheshwar that caused his immediate death was given by Dorik Gope, one of the appellants. (3) There was no general fight between the two parties and the contention of the prosecution that Singheshwar was given the fatal bhala blow before any fight took place between the parties appears to be correct. (4) The right of private defence to the extent of causing death is not available to Dorik under the circum. stances of this case as at best, Singheshwar had committed only a trespass on the land in possession of Durga Jha. (5) There is nothing in the evidence to show that Dorik at the time he inflicted the fatal blow on Singheshwar had reasonable cause to apprehend that Singheshwar was going to cause his death or to cause a grievous hurt on him. According to the evidence of the pro-secution witnesses, Singheshwar was only remonstrating with Dorik in respect of his intention to forcibly reap the standing paddy crop, and there is no evidence to the contrary and so he has no reason to disbelieve this "prosecution version of the occurrence."

On these findings, be holds that Dorik is not entitled to the benefit of the right of private defence. The other two appellants were acquitted of the charge u/s 802/149, Penal Code, but have been held guilty u/s 324, Penal Code, for their individual acts of assault with sharp edged weapons. The learned Judge accepts the evidence about the two accused Jadu and Sundar having caused injuries by their assault on Hardayal as sufficient and denies to them the right of self-defence as he finds that Hardayal had either only protested against the assault on his bhagina Singheshwar, or to assault Dorik, for the injuries inflicted on Singheshwar. Under these circumstances, according to him, the appellants Jadu and Sundar were not entitled to protection of the right of self-defence. None of these findings, as aforesaid, has been challenged before us by either side except in a general way by the defence Counsel who said that the prosecution witnesses being inimical and partisans should not be believed at all. The only other contest that has been put forward by the appellants'' learned Counsel is that all the appellants are entitled to an acquittal as their acts do not amount to offences on account of their right of private defence of property and of person as well while the learned Counsel for the Crown urges most emphatically that in view of the finding of the learned Sessions Judge that both parties came armed for a premeditated fight and for trial of their strength, the right of private defence is not available to either of the parties.

In view of the learned Sessions Judge''s findings the case of Jadu Gope and Sundar Gope presents no difficulty. He finds that Singheshwar had committed trespass and Hardayal was with him as one of his supporters. According to Section 104, Penal Code, the exercise of the right of private defence of property when occasioned by either committing or attempting to commit offences of theft, mischief or criminal trespass, extends, sub. ject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any hurt other than death. In the present case the trespass committed by Sarabjit''s men amounts to criminal trespass as their intention was to prevent taking of paddy belonging to him by Sahdeo Nonia and Durga Jha. According to the learned Judge''s finding, there was no time to take recourse to protection of the public authorities. They should, therefore, on the findings as they are correct, be entitled to the right of private defence of property. This aspect of their case has not at all been considered by the learned Judge. They are, therefore, entitled to be acquitted. In respect of Dorik Gope, appellant, it is to be considered not only if right of private defence of property is available to him but also if his exercise of that right, would extend to killing Singheshwar, deceased. To this end, I propose to examine the evidence on record, afresh in the light of the law on the subject.

The right of private defence of body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to body continues: vide Section 102, Penal Code. This right of private defence of body extends subject to other restrictions, to the voluntary causing of death, if the offence which occasions the exercise of the right be of any of the descriptions enumerated in Section 100, Penal Code. In this particular case it would be either the offence of committing an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault, or an assault as may reasonably cause the apprehension that a grievous hurt will otherwise be the consequence of such assault (first and secondly of Section 100).

In order to decide whether the right of private defence of body to the extent of voluntarily causing death is available to the appellant Dorik Gope, we have to examine the evidence in order to arrive at our conclusion whether there was any reasonable apprehension of such an assault from the hands of Singheshwar or any member of the prosecution party as may reasonably cause the apprehension of either death or grievous hurt, and whether the apprehension arises not from preparation but from attempt or threat to commit the offence of such assault, there being no clear finding in this respect by the learned trial Court.

The right of private defence of property extending to the voluntary causing of death arises if the offence, the committing of which or the attempt to commit which occasions the exercise of the right, be an offence of any of the descriptions enumerated in Section 103, Penal Code Of the offences therein enumerated, those enumerated in clause fourthly being relevant to the present case, we have to see, therefore, from the evidence whether there was either committing or attempting to commit the offence of theft or mischief or house trespass under such circumstances as may reasonably cause the apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. I have to examine the evidence in order to ascertain the following facts, namely, (1) how Singheshwar Gope, the deceased, was armed; (2) how the members of the mob collected by Sarabjit and taken to the field were armed; (3) how and under what circumstances Dorik Gope inflicted the fatal blow on Singheshwar; (4) whether Dorik Gope had sufficient reason to apprehend either death or grievous hurt either from Singheshwar or from any other member of Sarabjit''s mob; (5) what offence either affecting human body or property was committed or attempted to be committed or threatened to be committed, to occasion the exercise of the right of private defence either of body or of property on the part of Dorik extending to the voluntary causing of death; and (6) whether there existed circumstances which would leave time for Durga Jha or his men, to have recourse to the protection of the public authorities before collecting men and coming to the field for protecting his rights to the property in dispute. P.Ws. 2, 8, 10 and 12 would maintain that neither Singheshwar nor any of the opponents of Sarabjit who went to the field on being sent for through Santu Nonia by Singheshwar had either lathi or any other weapon. But P.W. 5 says that Singheshwar had a lathi and not a ballam. According to P.W. 4 Gosai Gope, he had taken his lathi and it is admitted by P.W. 2 and also deposed to by other prosecution witnesses that he (Hardayal) had a lathi. The only defence witness 4, Sahdeo Nonia, who has spoken about the occurrence, speaks that the mob of Sarabjit consisting of 15 or 16 men were armed with swords, ballam and other weapons. But be, being a very interested witness and a partisan, cannot be relied upon in the absence of any other corroborative evidence. It is clear, as the evidence shows (1) that Singheshwar had no other weapon except a lathi and (2) of the members of the mob collected by Sarabjit and taken to the field, only two people, namely, Hardayal P.W. 2 and Gosai Gope P.W. 4 had each a lathi and the rest had no sort of weapon whatsoever. P.W. 11, who was tendered for cross-examination, has deposed that both sides were using their weapons and that there were lathis, bhalas and ballams on the side of Singheshwar also. But this evidence cannot be relied upon be-cause on his own showing he gives two different versions with regard to his competency as a witness. In his cross-examination by the defence he said: "I had seen the fighting from a distance." He was then declared hostile and cross-examined by the prosecution. In this part of his evidence he said "I had not seen the actual fight. When the fight was over and I approached near the field, then I saw two groups of men." For this reason in coming to my finding as to what were the arms with which Sarabjit''s men were armed, I have not taken the evidence of P.W. 11 into consideration.

The facts of the actual occurrence just preceding Dorik''s infliction of the fatal blow on Singheshwar are like this. Singheshwar, Santu Nonia and some female labourers had gone to the field for cutting the Bhadai portion of the crop then standing but Singheshwar finding that there was a large body of people led by Dorik coming towards the field, he could anticipate the object of the mob and sent back Santu Nonia to inform his malik Sarabjit of this. On being cognizant of the fact, Sarabjit came to the field with several persons of whom, accord, ing to the evidence, only two people had lathis. It is said that hardly Sarabjit and his men had entered into the field when Singheshwar was given the fatal blow.

As to what was actually happening at the time when Sarabjit arrived and what occasioned Dorik giving this fatal blow has been deposed to by the prosecution witnesses in the following manner. P.W. 1 says that Singheshwar and Dorik exchanged hot words, Dorik insisting on cutting paddy and Singheshwar asking to settle the matter amicably, though in a high tone. At this Dorik struck Singheshwar. There was no reaping. Singheshwar and Dorik were hot abusing and Singheshwar did not say that "My malik will set you right." P.W. says that Singheshwar and Dorik were exchanging hot words and Dorik was insisting to cut and Singheshwar to settle the matter. Dorik struck during this talk. P.W. 3 says-

we were called to go and explain. Dorik and Singheshwar were exchanging hot words. Dorik was insisting to reap and Singheshwar asking to settle amicably. Dorik and others were speaking that they must reap the paddy and Singheshwar was speaking that he won''t allow as directed by his malik.

P.W. 4 says that Singheshwar was saying ''Let the malik come'' when he was struck. The mob fled finding Singhehswar dead. P.W. 5 says that Singheshwar was saying "He will not allow Dorik and others to cut paddy. Hence he was struck.," P.W. 10 deposed, ''Dorik and Singheshwar were exchanging hot words.'' Singheshwar was speaking "He won''t allow without the order of the malik" and that he had come and was standing. They should ask him. On this, the men on the side of Dorik began to reap and Singhe-shwar opposed. Singheshwar opposed not by using his lathi but only orally speaking that he will not allow reaping of paddy. So he Was struck with the bhala by Dorik. P.W. 12 says: None of us tried to assault. When I with others came to the field, Singheshwar and Dorik were quarrelling. Dorik struck Singheshwar with a bhala on the left side of the abdomen.

According to D.W. 4, they had arrived in the field earlier and were reaping paddy which was on the west of Agahni crop. They had commenced from the south-east corner of that crop and had reaped paddy of about two kathas when the mob of Sarabjit arrived. The mob of Sarabjit had begun to reap and then it was opposed. That he had opposed reaping of the paddy by the mob by the word of mouth only. The Sub-Inspector of police who visited the locality saw no blood marks in the field. He found the dead body of Singheshwar on the ridge at a place marked A in the map, and it is to the further south of that place that blood marks were found which is noted B in the map. According to him, he found no indication that the dead body was removed from some other place. The Sub-Inspector found that a portion of Bhadai crop in what can be roughly called south-east corner of the plot on which Bhadai crop was standing had been cut. There were no marks of paddy having been cut in two different places.

The evidence of D.W. 4 cannot be accepted at its face value. According to his evidence read as a whole, there was no armed mob on the side of Durga Jha present at the place of occurrence. According to him, there was no assault on Singheshwar and that before any such assault could be inflicted, everybody on his side had left the place of occurrence after being assaulted by the members of Sarabjit''s party. According to him, Singheshwar struck Bhulku with ballam, while, as we have seen above, that Singheshwar had nothing but a lathi with him, nor any of his party men who had arrived just at that time had any such weapon with any one of them. Therefore, accepting the prosecution evidence at its face value, the fact leading to the fatal blow by Dorik appears to be that Singheshwar was simply abusing verbally Dorik''s men reaping the paddy. So far as Sarabjit''s men who arrived later are concerned, they had neither started reaping nor had joined in the quarrel between Singheshwar and Dorik nor had tried to assault nor gave any threat to assault either Dorik or his men. But I shall notice presumably that this view cannot be certainly accepted. The place of assault, however, it seems very clearly from the condition of the spot as seen by the Sub-Inspector of police, was not in the field but on the ridge and a few paces away from the portion of the field from which paddy had been cut on that day. This place of cutting exactly tallies with the place of cutting by Dorik''s men as deposed by D.W. 1. It is clear, therefore, that no offence to the property was either committed or attempted to be committed by Sarabjit''s men before there could be any occasion for Dorik to assault Singheshwar fatally. Whatever opposition was given to Dorik''s men cutting paddy was verbal opposition only.

But the prosecution evidence cannot be accepted as a whole and in view of certain circumstances appearing clearly on the record, a view should be taken modifying, in certain respects, the findings of the learned Additional Sessions Judge. That is (1) on a careful consideration of the evidence of the doctor N.K. Mitra (D.W. 5) and of the nature of injuries on Bhulku Gope and Dhaturi, it cannot be held that they were all self-inflicted or inflicted by friendly hand. It has to be found that they were wounded during the occurrence by men of the prosecution party; (2) These injuries lead to the inference that the prosecution party had come to the place of occurrence armed with weapons such as bhalas, arrows and other sharp-edged weapons; (3) That Singheshwar was not alone remonstrating with Dorik but came to the spot with an armed mob some of the members of which inflicted the aforesaid injuries on Bhulku and Dhaturi; (4) That some of the prosecution witnesses are inimical to Dorik and Durga Jha, and, therefore, they have concealed the fact that they came armed with deadly weapons and inflicted injuries noticed above on some men on the defence side though their evidence as to Dorik inflicting the fatal blow on Singheshwar, deceased, is quite acceptable and is accepted by us in agreement with the learned lower Court. It has now to be examined whether in this view of the occurrence Dorik is completely protected by the right of private defence of property or person. As to the right of self-defence of person, the question cannot arise inasmuch as both parties came armed to fight and merely one party striking first does not, by that reason and that reason alone, give a right of private defence of person to the members of the other party.

But as a party has got the right to protect his property by collecting strength for employment of violent means, the members of the defence party have got the right of private defence of property. Even then, the right to voluntarily cause death is limited by circumstances defined in the Statute. This definition requires that (1) the right must be occasioned by the committing or the attempting to commit any of the offences enumerated in Section 103, Penal Code, (2) criminal trespass as found by the Sessions Judge, is not one of the offences so enumerated and (8) commission of theft, or attempt to commit theft must be under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. In this case no theft of paddy was committed nor was there any attempt to commit. The result of the Sub-Inspector''s local inspection as summarised by me above does not lead to any such conclusion. It rather shows that either the fight began as soon as the main prosecution party came to the ridge of the field, or while they were reaping. The right of private defence may well commence under such circumstances according to Section 105, Penal Code, but it will not extend to voluntarily causing of death unless the conditions of Section 103, Penal Code, are fulfilled.

No circumstances favouring the right of private defence is to be assumed. Section 105, Evidence Act, lays down that the Court shall presume the absence of such circumstances as will bring the case within any of the general exceptions in the Penal Code. The defence has failed to establish any such circumstance. Next point to be considered is whether Section 99, Penal Code, is applicable to the facts of this case. In this connexion it has to be considered that Durga Jha long before the date of occurrence had notice of the fact that Sarabjit was laying claim to the disputed plot and the crops thereon and had in fact succeeded in cutting a part of the crop without any opposition. It was, therefore, "quite clear to Durga Jha that his claim to reap the standing crop on the disputed field should be resisted by Sarabjit. He may or may not have notice of Sarabjit coming to oppose with a force. It is a case, therefore, where Durga Jha should have after the order of dismissal taken steps to vindicate his right in Court. On the contrary, he took no steps regarding the order of dismissal by the Sub-divisional Magistrate of his complaint against Sarabjit about his interference with his right in respect of this very plot. He did not take steps to start proceedings u/s 145, Criminal P.C., and to get the crops attached till determination of the dispute as to possession being either with him or with his opponent. It has to be seen whether, under these circumstances, it can or cannot be held, that the accused had time to take recourse to the protection of public authorities within the meaning of Section 99, Penal Code.

It has, however, been urged by the learned Counsel for the Crown that, as both parties came armed for a premeditated fight, the question of the right of private defence does not arise. This argument amounts to saying that in a case where both parties engage themselves in a pitched battle, having come ready for the purpose, circumstances which would otherwise give the assailants a right of private defence either of property or of body will be of no avail. It is, therefore, necessary to consider whether this contention, in this very wide form, is correct. The earliest decision on the point in In re Kali Bepari (78) 1 Cal. L.R. 521 in which the proposition was laid down in the following terms, namely:

where both parties are armed and prepared for battle and it is not shown that they were acting within the legal limits of the right of private defence, it does not matter which is the first to attack.

The proposition as laid down clearly makes allowance for cases in which the parties so armed and so prepared for a battle act within the legal limits of the right of private defence. This case was dealt with in what is known as Kabir-ud-din v. Emperor (08) 35 Cal. 368, Rampini J. at p. 876 of the report, after quoting the aforesaid passage, proceeds to consider the various provisions contained in Sections 99 to 105, Penal Code, to see if, in the particular case before him in which both parties deliberately engaged in very large numbers in a pitched battle having come armed for a fight to enforce their right or supposed right, the appellants did or did not act within the legal limits of the right of private defence. This clearly shows that his Lordship was not of opinion that in a case like the one before him, the question of the right of private defence cannot arise.

He further says that the right "of self-help when it causes or is likely to cause damage to person or property of another must be restricted and recourse to public authorities must be insisted on. Referring to Holloway J. in 7 Mad. H.C. App. XXV, he says the natural tendency of 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 India. Sharfuddin J. in the same case, referring to the restrictions to one''s right of private defence given in Sections 96 to 106, Penal Code, says:

By the above restriction an accused cannot set up this right with regard to property in his possession if he has time to invoke the protection of the authorities. In cases of sudden fights, where there has not been any preparation by either side, a man, no doubt, is within the law, if in defending his property he causes such bodily injuries to the aggressive party as are allowed by the Sections of the Penal Code which deal with the right of private defence.

Referring to the facts of the case he summarises (a) that there had been a premeditated fight between the parties, (b) that the remonstrances of the two constables were ineffectual, (c) that there was no pressing necessity to repair the pyne, and (d) that there was ample time to seek the protection of the authorities, and then holds "it was immaterial as to which of the parties was in possession." In my view the ratio decidendi of this decision is not to rule out the right of private defence of property or body simply because a party comes with a premeditated motive of fighting. If such a party has had no time to take recourse to public authorities, and if such a party is entitled to invoke the aid of the provisions of the Penal Code relating to right of private defence of body or property on the particular facts of that case, he is still entitled to the right of private defence.

In Nareshi Singh v. Emperor AIR 1924 Pat. 388 the case of Kabir-ud-din v. Emperor (08) 35 Cal. 368 came to be considered, and it was held that where possession is in dispute, or where there is no time to seek the assistance of the authorities, there is no obligation upon a person entitled to exercise the right of private defence and to defend his person or property, to retire merely because his assailant threatens him with violence. Kabir-ud-din v. Emperor (08) 35 Cal. 368 was distinguished on the ground that the question of possession in that case was in dispute and there was sufficient time to inform the authorities, and, therefore, they were members of an unlawful assembly having come prepared to fight in their attempt to enforce a right or supposed right of violence.

In Kabir-ud-din v. Emperor (08) 35 Cal. 368 Sharfuddin J. laid down that even if an accused has possession, he cannot plead that in support of his plea of right of self-help, if he has time to invoke the protection of the authorities. In the case of Nareshi Singh v. Emperor AIR 1924 Pat. 388 the correctness of this proposition is not doubted, because in giving the benefit of the right of self-help, their Lordships put this as a condition that where there is no time to seek the assistance of authorities, the accused is under no obligation to retire from his field.

In Ghyasuddin Ahmad v. Emperor AIR 1932 Pat. 215 it was held that there was no distinction between forming an assembly to enforce a right or supposed right within the meaning of Section 141 (fourthly), Penal Code, and forming an assembly forcibly to maintain an existing right, and that the proposition of the law that an assembly would be considered not unlawful unless the prosecution could show affirmatively that it was an assembly for enforcing a right or supposed right and not for maintaining an existing right was negatived, and the law laid down in this behalf in Ganauri Lal Das v. Queen-Empress (89) 16 Cal. 206, was re-affirmed for the guidance of the Courts of this province. It was there laid down that it was for the accused to prove right of private defence, and, therefore, it was for him to establish that he had possession, and that possession was required to be protected by force against the offence of theft. In short, the ratio decidendi of this decision is that a party of men who came armed in a body either to enforce or maintain an existing right or a supposed right by use of force and violence or show thereof, are members of an unlawful assembly, there being no distinction between enforcing a right or maintaining a right, and that in such a case it is the duty of the defence to establish that they have possession, and that this possession is required to be protected by force against an offence. So, according to this case also, even in a case of a premeditated fight, the right of private defence is available if the circumstances necessary for such right under the provisions of the law do exist.

In the case of Matte Mandal v. Emperor AIR 1932 Pat. 189, a case that was decided by the same Bench as the case of Ghyasuddin Ahmad v. Emperor AIR 1932 Pat. 215, Kabir-ud-din v. Emperor (08) 35 Cal. 368 was followed, and it was held by Rowland J., Courtney-Terrell C.J. concurring, that the substantial fact being that the party of the accused went to the place knowing that they would meet opposition taking with them a large body of men to defeat that opposition, and the party of the prosecution incidentally having done exactly the same thing, it is clear that neither party can claim a right of private defence and the assemblies of the men on both sides were unlawful, and that it was not of much importance in the circumstances which side began to attack when both parties contemplated a fight and prepared for it in advance. But at the same time Rowland J. said:

In the present case the real question is whether the accused had any right of private defence, and on this point the restrictions imposed on that right by Section 99, Penal Code, are important.

Coming to the facts of that case, it was clear that the accused party refused to take recourse to protection of public authorities, even though there was time enough to do so, and it was, therefore, held that they could not invoke the right of private defence. Next case that deserves notice is the case in Farman Khan v. Emperor AIR 1926 Pat. 433. That was a case in which both parties came armed in large numbers and there was a free fight causing death. The accused took up the plea of private defence of property as well as of person. With regard to the former, it was held that the burden of proof was on the accused, and it was not proved that the accused were defending an existing possession. As to the plea of defence of person, it was held relying upon Queen v. Jeolal (67) 7 W.R. 34, In re Kali Bepari (78) 1 Cal. L.R. 521, Kabir-ud-din v. Emperor (08) 35 Cal. 368 and Queen-Empress v. Prag Dat (98) 20 All. 459

That when a body of men are determined to vindicate their rights, or supposed rights, by unlawful force, and when they engage in a fight with men who, on the other hand, are equally determined to vindicate by unlawful force their rights or supposed rights, no question of self-defence arises. Neither side is trying to protect itself but each side is trying to get the better of the other.

It appears, therefore, that both parties coming in large numbers for a premeditated fight is an answer to the plea of defence of person only. There would be some justification here to refer to the case of the Allahabad High Court, namely Queen-Empress v. Prag Dat (98) 20 All. 459 because of its acceptance as a good law in the case of Anup Singh v. Emperor Cri. Revn. No. 588 of 1935, an unreported decision of this Court, decided by Rowland J., the principles of which are approved and accepted in Satnarain Das v. Emperor AIR 1938 Pat. 518. In Queen-Empress v. Prag Dat (98) 20 All. 459 of the report the proposition of law is laid down in the following passage:

If a body of men go down to meet another body of men evidently intent upon picking a quarrel over a piece of mud wall, go down armed with a loaded gun and use that gun within a short interval of their arrival it is for them to rebut the inference which at once arises that their intention was by means of criminal force, or show of criminal force, to enforce their rights or supposed rights.... The presence of Laltu with his gun proves that the accused were prepared to defend this mud wall even to the voluntarily causing of death, and the burden lay heavily upon them of proving that they acted under reasonable apprehension that death or serious hurt would be the consequence if the right of private defence were not exercised.... The law in India is that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code is upon the accused, and it is directed by the Statutes that the Court shall presume the absence of such circumstances.

In Satnarain Das v. Emperor AIR 1938 Pat. 518 it was found as a fact that the accused had title and possession, but he could not get the benefit of the right of self-defence because there was no immediate danger to any property, neither standing crop, nor any valuable structure, but both parties expected attack from one another and the object of the assembly was not to prevent an aggression but to try out their strength by means of a pitched battle. In that case the principles laid down by Rowland J. in Anup Singh v. Emperor Cri. Revn. No. 588 of 1935 were quoted with approval which may also be quoted here, namely, that (1) there is no right of private defence when a riot is premeditated unless the object of the assembly is shown to have been to repel forcible and criminal aggression. (2) In appropriate cases the right of private defence is an answer to a charge of rioting. (3) The cases in Ramphal Das v. Emperor AIR 1929 Pat. 705 and Ghyasuddin Ahmad v. Emperor AIR 1932 Pat. 215 are not inconsistent with the cases in Fouzdar Rai and Others Vs. Emperor, and Subedar Singh v. Emperor AIR 1933 Pat. 434 as in the latter cases the person in possession saw actual invasion of his rights which invasion amounts to an offence, and he is entitled to collect such members and such arms as were necessary for the purpose of defending himself and his property, there being no time to get police help.

In Nareshi Singh v. Emperor AIR 1924 Pat. 388 and Matte Mandal''s case AIR 1932 Pat. 189 the parties in vindicating their disputed rights of irrigation and fishery having no particular occasion or necessity to exercise them on the day of occurrence, went forth under arms expecting and intending to bring on a violent encounter. It was held that whether their claim was good or bad, there could be no right of private defence in those circumstances, and that the observations made in those cases must be read with reference to those circumstances.

In Jageshar Rai v. Emperor AIR 1917 All. 119 in considering as to whether one has time enough to have recourse to protection of public authorities it was said:

The learned Sessions Judge suggests that they had plenty of time to go on to the police-station and to make a report of theft. It is true that they had ample time to do that, but that would have been of very little use so far as the protection of the property was concerned. The damage and loss would have been completed before the police could have arrived. The case cannot for a moment be compared to the reported case in Queen-Empress v. Prag Dat (98) 20 All. 459 and the other cases which are mentioned in that judgment. Furthermore, it is not a case in which the opposite party were merely ploughing up the land and preparing it for Bowing. In the latter case no damage is being done, and there is ample time to have recourse to the protection of the public authorities for the enforcement of their right. In the present case, property was actually being cut and damaged: If the applicants had gone to the police-station and returned with police help the damage would have been completed.

It is clear, therefore, that there are circumstances in which one can collect a mob expecting resistance with violence from his opponent and defend his property by violent means and can still get the benefit of the right of private defence. Those circumstances must be (1) immediate danger to the property which, if not immediately protected, would be lost by the time protection of public authorities is obtained; (2) even this justified violence by the mob for protection of property from actual invasion should be exercised within the legal limits of the right of private defence of person or property, that is to say, there must be circumstances existing leading to a reasonable apprehension of a danger arising out of a committed or attempted or threatened offence affecting person or property, as the case may be, justifying the particular injury inflicted.

It would not be out of place to add a few statements from standard authors of the English common law about right of self-defence, just to show with what restraint the right of justifiable homicide can be caused. Though the laws in this respect in both the countries may not be identical, they are in pari materia. The English common law on the subject of excusable homicide in private defence of person or property has in some cases been authoritatively said to be almost same as the law in India. This further justifies me to quote certain passages from the standard authors on the subject which may illustrate the position more clearly than I could otherwise express. Archbold''s Criminal Pleading, Edn. 81 p. 871, Article 4:

If two men fight upon a sudden quarrel, and one of them after a while endeavours to avoid any further struggle, and retreats as far as he can, until at length no means of escaping his assailant remain to him, and he then turns round and kills his assailant in order to avoid destruction ; this homicide is excusable, as being committed in self-defence, and malice apart, it is little matter, in such a case, which struck the first blow at the beginning of the contest. And the same, of course, applies where one man attacks another, and the latter, without fighting flees and then turns round and kills his assailant, as above mentioned. But, in either of these cases, to show that it was homicide se defendendo, it must appear that the party killing had retreated either as far as he could, by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault would permit him; for the assault may have been so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence, if there is no other way of saving his own life, he may kill his assailant instantly.... Not only is the manner of the defence to be considered; the time also is important. If the person assaulted does not fall upon the aggressor until the affray is over, or when he is running away, that is revenge and not defence.

At p. 878:

If any person attempts to rob or murder another in or near the highway or in a dwelling house, or attempts burglariously to break into a dwelling-house in the night time, and is killed in the attempt, the slayer is entitled to acquittal, for the homicide is justifiable, and the killing is without felony. The same rule applies where a man is killed in attempting to burn a house or where a woman kills a man who attempts to ravish her, or where a man is killed in attempting to break open a house in the day-time, with intent to rob.... The above rule, however, does not extend to felonies without force, such as picking pockets, nor to misdemeanours of any kind; and even in cases within the rule it must be proved that the intent to commit such forcible and atrocious crime was clearly manifested by the felon, otherwise the homicide will be manslaughter at least, if not murder.... In cases within the rule, it may be necessary to observe that the party whose person or property is attacked is not obliged to retreat, as in other cases of self-defence, but may even pursue the assailant until he finds himself or his property out of danger. But he must not strike blows except in self-defence. What we have now said relates to felonies by force. In the case of forcible misdemeanours, such as trespass in taking goods, although the owner may justify beating the trespasser, in order to make him desist, yet, if he kills him, it will be manslaughter.

Russell on Crime, 9th Edn. p. 505-

When a man is assaulted in the course of a sudden brawl or quarrel, he may, in some cases, protect himself by killing the person who assaults him, and excuse himself on the ground of self-defence. But in order to entitle himself to this plea, he must shew first that before a mortal stroke given he had declined further combat; secondly, that he then killed his adversary through mere necessity, in order to avoid immediate death.

Page 506-

In all cases of homicide excusable by self-defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated, or with malice; and from the doctrine which has been above laid down, it appears that the law requires that the person who kills another in his own defence should have retreated as far as he conveniently or safely could, to avoid the violence of the assault, before he turned upon his assailant; and that not factitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother''s blood.... Before a person can avail himself of the defence, that he used a weapon in defence of his life, he must satisfy the jury that the defence was necessary; that he did all he could to avoid it; and that it was necessary to protect his own life, or to protect himself from such serious bodily harm, as would give him a reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape in such case, if he retreated as far as he could he would be justified.... Where the prisoner levelled a gun at the deceased, and it was a question whether the gun went off accidentally or not, Oockburn C.J. left the following question to the jury: Was the gun levelled by the prisoner at the deceased in self-defence against an attack of the deceased endangering life or limb, or reasonably apprehended by the prisoner as likely to do so, in either of which cases the prisoner would be entitled to an acquittal.

Page 512:

A man is justified in repelling force by force in defence of his person, habitation, or property, against one who manifestly intends and endeavours by violence or surprise, to commit a felony upon either. In these cases 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. But the rule does not apply to any crime unaccompanied with force, such as pocket picking. The intent to murder, ravish, or commit a felony attended with force or surprise, should be apparent, and not be left in doubt; so that if A makes an attack upon B, it must plainly appear by the manner of the assault, the weapon, etc., that the life of B is in imminent danger; otherwise his killing the assailant will not be justifiable self-defence.

In this view, therefore, we have to see in this particular case (1) whether Durga Jha had actual possession of the property; (2) whether that possession required to be protected by force; (8) whether he had time enough to have recourse to the protection of public authorities within the meaning of Section 99, Penal Code; and U) whether the right of using that force extended to the extent of voluntarily causing death. I have held above that Durga Jha had previous notice of Sarabjit claiming the property and having used force in taking away a part of the property beforehand. Therefore in all probability he would expect resistance with violence from Sarabjit and was justified in coming with a number of armed men to protect his property; but, in my view, there is nothing on the record to show that he could have got such protection by recourse to public authorities, in this particular case, as could keep him in present possession of the paddy crops which he was entitled to harvest. He could get that remedy only if there was time enough for him to get police help at the time of the occurrence. But the police-station being 8 miles away, it cannot be said that after knowing that Sarabjit was coming with a mob, he could take recourse to public authorities. Keeping in view the decisions referred to above holding that a party is under no obligation to retire from his field on the appearance of a mob collected by his opponents on the scene and intent upon using violence, I would hold that Section 99, Penal Code, is no bar to the appellant Dorik getting benefit of the right of private defence of property, he having come to the scene of the occurrence to defend the actual possession of Durga Jha. Here I am taking the view that the protection of public authorities means such protection as can preserve status quo. His right of private defence of person, according to Farman Khan v. Emperor AIR 1926 Pat. 433 would be non-existent for the simple reason that he came with a mob for a premeditated fight and in such circumstances if he is first attacked, he would have no plea of self-help available to him.

The question next arises whether he had the right of private defence of property to the extent of voluntarily causing death of Singheshwar. That he has voluntarily caused his death is a matter beyond all reasonable doubt. His right in this respect is limited by Section 103, Penal Code. This Section requires, with reference to the facts of this particular case, that there must have been either committing of, or attempting to commit, theft under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. I have shown above that there was neither cutting of paddy nor an attempt to cut tbem on the part of Singheshwar or the members of hi3 party. In the result, I arrive at the conclusion that the acts of Appellants Jadu Gope and Sundar Gope are completely justified by right of private defence of property. They are, therefore, acquitted of the charge and I direct that they be set at liberty at once. Dorik, as I have shown above was justified by right of private defence of property to inflict any bodily injury short of death, but under the circumstances of this case, his right did not extend to voluntarily causing the death of Singheshwar. I have no doubt that he had no intention to kill Singheshwar, but must be taken to have the requisite knowledge that his act was likely to cause death. I, therefore, alter his conviction from one u/s 302, Penal Code, to a conviction u/s 304, Part II, Penal Code. His sentence of transportation is, therefore, reduced to a sentence of four years'' rigorous imprisonment.

The appeal of Jadu Gope and Sundar Gope is allowed and that of Dorik is dismissed subject to the above modification.

Das, J.

I have had the advantage of reading the judgment proposed to be delivered by my learned brother. As to Jadu Gope and Sundar Gope, I am in agreement with what my learned brother has said. As to appellant Dorik Gope, I am inclined to place more reliance on the evidence of Raghu Nonia (P.W. 11), particularly when another prosecution witness has admitted that Raghu Nonia was present at the time of the occurrence. Raghu Nonia had stated that he saw the fighting from a distance, and both sides were using their weapons. He further stated that about 40 men were on the side of Singheshwar and about 100 on the other side, and both parties were armed with lathis, ballams, bhalas, etc. The evidence of Raghu Nonia, taken with the evidence of the doctor (D.W. 5) who examined the injuries on Bhulku Gope and Dhaturi Gope, two of the persons on the side of the accused, tends to show that the prosecution witnesses minimised the part which they had played in the occurrence. It would appear that the men on the side of Sarabjit were also armed, and had caused injuries to some of the persons on the side of the accused. The real question, therefore, is if Dorik Gope is fully protected by the right of private defence or not. That he had a right of private defence cannot be denied: the question is if he has exceeded that right. I was, at one time, inclined to think that he had not exceeded the rights inasmuch as the men of Sarabjit also came armed with dangerous weapons, and some of them had assaulted Bhulku and Dhaturi. My learned brother has, however, taken the view, that Dorik Gope gave the bhala blow on Singheshwar in circumstances which did not give rise to any apprehension of grievous hurt to Dorik or any person on his side. u/s 105, Evidence Act, the burden of proving the existence of such circumstances as would fully protect Dorik Gope is on the accused person, and the Court shall presume the absence of such circumstances. The evidence of Raghu Nonia (P.W. 11) is somewhat weakened by reason of the fact that he admitted in cross-examination that he had not seen the actual fight. Sahdeo Nonia (D.W. 4) who gives the defence version of the occurrence, gave no account of how Singheshwar was assaulted, though he said about the assault on Bhulku and Dhaturi. His evidence, therefore, does not clearly establish any circumstances which would give Dorik Gope the right to assault Singheshwar up to the causing of death.

It was argued before us on behalf of the. appellant Dorik Gope that the witnesses who said that Dorik had given the bhala blow to Singheshwar Gope were inimically disposed towards Dorik Gope, because of another case which had been brought by one Pahup Lal Gope against Sarabjit and others only a few days before the present occurrence, Pahup Lal Gope was a bataidar under Dorik Gope. Even then I do not see any good reasons why these witnesses should falsely mention Dorik Gope as the assailant of Singheshwar Gope, if some body else had given the bhala blow. I think that the evidence is clearly to the effect that Dorik had given the bhala blow to Singheshwar. I was, at first, inclined to favour the contention of the appellant that Dorik Gope was fully protected by the right of private defence. After reading the judgment of my learned brother, I do not feel inclined to express dissent from the view which he has taken regarding the circumstances in which Singheshwar Gope was given the bhala blow by Dorik Gope. If there was no reasonable apprehension of grievous hurt, Dorik Gope would not be justified in exercising his right of private defence to the extent of causing death. In Ramsagar Gope v. Emperor AIR 1936 Pat. 622 it has been held that so long as the accused were confronted by an unlawful assembly they were entitled to deal with that assembly as a whole, as long as it continued to be dangerous to them; even if the accused did inflict fatal injuries on members of that assembly, they would be entitled to take all measures necessary for their own safety in case of a dangerous attack on them, and they could not be expected to judge too accurately what was the exact amount of force necessary for that purpose.

The principle laid down in that case would not, however, apply if the view of the occurrence is that there was no such attack on Dorik Gope or the members on his side as would give rise to a reasonable apprehension of grievous hurt being caused, if the right of private defence of person or property were not exercised.