Habibur Rahman and Others vs Emperor

Courtney-Terrell, C.J.—This is an appeal from a judgment of the Sessions Judge of Darbhanga convicting 16 persons of various offences arising out of an occurrence which took place in mauza Nayatola Dilahi on 7th June last. In this village there reside two men Habibur Rahman and Pipa Khan who are step-brothers and for a considerable time past disputes have been going on between the two step-brothers as to the rights in a mango orchard of which at one time they were certainly joint proprietors. According to the case of Pipa Khan the orchard had been divided by the original proprietor in such a way as to leave the northern portion the subject of a wakf trust deed and the southern portion remained joint between Pipa and Habibur. There were intermediate dealings with the property which it is not material to go into. The case of Habibur, on the other hand, was that pending the settlement of the dispute between the two brothers as to the partition of this orchard in respect of which a case had already been instituted in the civil Court a temporary allotment of the shares between the two had been effected. The evidence as to whether or not this temporary division had been effected is somewhat vague. The learned Sessions Judge has taken the view that no such separation had in fact taken place but that the orchard or the southern portion of it remained joint. There is however strong evidence that some sort of temporary division under the direction of the Court of the Subordinate Judge in which the partition suit was to be heard had been effected. But one thing is abundantly clear, namely, that Habibur had in fact placed two watchmen in that portion the garden which he considered as his exclusive portion and that these watchmen had been in command of the garden for a very considerable time, since in fact the flowering of the mango blossoms, and that he had for their purposes caused to be erected a hut in which the two men lived and took their food while taking care of the garden. Upon the whole the evidence points to the fact that at any rate as far as the southern or south eastern portion of the garden was concerned Habibur was in the enjoyment of exclusive possession of it. The disputes between the two brothers had not however terminated and Pipa was certainly asserting his joint ownership with Habibur.

On the day in question early in the morning Habibur had, according to the undisputed evidence, gone with a considerable party of his supporters prepared for combat if necessary to his portion of the garden and was, through his servants, collecting mangoes and piling them into the cart. This was not the first time he had done so. He had a few days previously, without any disturbance from Pipa, gone and picked some two thousand mangoes and sold them to a purchaser reserving the price to his own use and without accounting to Pipa. These facts indicate, to my mind, that he was in sole possession of the south-eastern part of the garden. On this particular day, according to the prosecution story, Pipa who was sitting in his house some two hundred yards or so to the south-east of the orchard received news from two persons that Habibur''s party had arrived and were picking mangoes. The two persona who brought the news were one Gobinda who ultimately died in the course of the events which I am about to describe and Pipa''s son-in-law Usman. Pipa says that he thereupon directed these persons to go back to the orchard and remonstrate with Habibur for picking the mangoes at a season when they were not ripe. The story up to this point has a certain improbability about it because a man in the ordinary conduct of an orchard garden and knowing his business does not pick mangoes before they are ripe for such an act would amount to wanton waste. However Pipa was clearly incensed at this but according to him before anything could be done Usman and (sic) named Dhora and Gobinda were chased by Habibur''s party right up to his doorway and there in front of a small hut which was opposite the east side of his house, Gobinda was struck down and slain and Dhora was also seriously injured and at the same time a nephew of Gobinda''s who had raised an outcry on seeing his uncle fall received a cut on his head by means of a garassa handled by one of Habibur''s party named Wahid Ali and fell on the ground. The persons who are said by the prosecution witnesses to have taken part in the actual attack on Gobinda are four in number. They are all Mahomedans and they have been sentenced by the learned Sessions Judge to four years'' rigorous imprisonment.

When the accused were put up before the Sessions Judge most of the accused declined to make any statement at all but one of them, that is to say, Abdul Rahman, made a very full and complete statement. He said that it was he who in fact took part in the attack on Gobinda and he explained the way in which the attack had taken place. He says that Gobinda together with a number of others of Pipa''s party had chased him and a man named Keshwar Singh away from the orchard and they had not fled towards the house of Pipa but had fled southwards towards a field situated about the same distance as Pipa''s house which was known as Batulan''s field and there the following events took place: It may be noticed that the man Abdul Rahman together with another person named Mubarrak were the two watchmen who had been employed by Habibur to watch the orchard garden. He makes the statement that he was in fact the watchman and that he saw Pipa together with a large number of persons approaching the orchard armed with a gun and the rest of his party armed with lathis and garassas. Thereupon he fled from the orchard, and fled southwards, and he was pursued by Pipa''s mob. He says that Gobinda, the man who was ultimately killed, struck his companion Mubarrak on the left arm with a garassa. This statement is corroborated by the fact that Mubarrak did in fact bear a wound from a garassa on the left arm; that Mubarrak turned back on receiving this blow and thereupon Gobinda dealt him a second blow on the neck: this is also corroborated by the medical evidence, and when Mubarrak fell down after the assault Usman pierced his (Abdul Rahman''s) hand with a spear (which is also borne out by the medical evidence) that he then snatched up a sipaha, which is a pair of heavy sticks fastened together with an iron ring and used as a prop for a bullock cart, and blindly struck out at Gobinda in his own defence, and he says that Dhora was struck by Keswar Singh with a garassa. He makes it quite clear that Gobinda, Dhora and Mubarrak were all assaulted and the whole fight took place in Batulan''s field. The injuries inflicted on Dhora and Mubarrak must have bled profusely. The injuries which were found on the body of Gobinda were heavy lathi blows which broke the ribs and ruptured the lungs and spleen, and would only have caused internal injuries which would not have bled profusely. But the first two men must have received serious wound which would cause a great deal of blood. When the Sub-Inspector came to investigate the story he at once went to the place where Gobinda was at that time lying, that is to say, just outside Pipa''s house and in the place where all the witnesses including Pipa himself said that Gobinda had actually fallen. He found a little trace of blood under the body where the blood from the nose of the victim had clearly stained the ground. He found no blood anywhere in that vicinity, but a boy named Chhotka was brought to him, aged sixteen years, who has given evidence in this case and he left out the fact that the battle had really taken place in Batulan''s field. Thereupon the Sub-Inspector went to Batulan''s field to examine the ground there, and there he found not only profuse bloodstains but an attempt to conceal the bloodstains. The ground had been dug over a small portion which did not suffice to conceal blood and the ground showed marks of some water having been thrown upon it. There does not appear however to have been either water or blood in the place where the prosecution say the assault actually took place. The water is to be accounted for by the fact that an attempt was made when Gobinda fell down senseless to revive him by pouring water into his mouth. Traces of that would certainly have been visible at the place opposite Pipa''s house as well as the blood if Gobinda had actually fallen at that place.

Therefore we have to start with the very clear finding which is in fact arrived at by the learned Sessions Judge that this occurrence took place at Batulan''s field and not as the witnesses on behalf of the prosecution state, near Pipa''s house. It thus becomes manifest that the story of the pursuit of the injured men Dhora and Gobind to Pipa''s house is absolutely untrue and indeed the learned Sessions Judge starts with that finding. I do not agree that there is any fundamental rule of law which prevents a Judge, if he finds that the prosecution story as told by the prosecution witnesses is untrue, from doing the best he can in view of all the evidence given in the case to arrive at some theory as to what has actually happened if he can fairly do so upon the evidence. But in a case where the story of the occurrence in its fundamental aspects has been found by the Session''s Judge to be untrue it will rarely if ever be possible to accept the evidence of the prosecution witnesses who have obviously conspired together to tell that false story.

It would appear from the only man who has had the courage to make a frank statement before the Sessions Judge, and he is largely the saviour of his companions, that what really happened was that Habibur went with his party expecting an attack to the orchard, that an attack was in fact made by Pipa''s party and that Pipa''s party got the worst of it. Two men of Habibur''s party have received slight injuries and it is a misfortune that the injury on the man of Pipa''s party was a serious one resulting in death. But one is constrained to wonder whether the learned Judge could possibly, in view of the evidence, have arrived at the finding he has in this case had it not been for the fact that this death took place. If the injuries had been of an equal character on both sides, in my opinion, there would have been no alternative for him but to find that the story of Pipa having been the real aggressor in the case was correct. Indeed it appears that since this occurrence Pipa''s party have been prosecuted on a counter-case. They have been held to be the aggressors by the same Magistrate and that view was supported by the same Sessions Judge who has arrived at the decision in this case. We have read the judgment in the counter-case and the judgment of the Sessions Judge is quite consistent with his judgment in this case. There is no inconsistency between the two. He has come to the conclusion as to both cases that both parties set forth armed with a view to obtaining exclusive possession of the orchard. He has come to the conclusion in both cases that Habibur''s party succeeded in driving away the two men of Pipa''s party who were injured not towards Pipa''s house but downwards into Batulan''s field and it was there that the injuries upon them were inflicted. In my view where he went wrong was in not perceiving that none of the witnesses on behalf of Pipa''s party, and in particular Pipa himself, ought to have any weight attached to their evidence after it had been thoroughly well established that their account of the way in which the occurrence took place was altogether false. The true view of the facts as far as one can obtain them from the evidence seems to me to be that Pipa''s party were in fact the aggressors, that Habibur''s party were on the defence and that as regards the injuries inflicted upon Gobinda and Dhora they were inflicted in actual self defence by the people by whom they were inflicted and the story told by Abdul Rahman, confirmed as it is by the story told in the witness box by Mubarrak seems to me to be true. For these reasons I would set aside the convictions and sentences of all the appellants in this case and direct that they be released.

Adami, J.

I agree.