Janki Mahto vs Emperor

Fazl Ali, J.—The appellant having been convicted u/s 326, I.P.C. by the Sessions Judge of Gaya and sentenced to undergo rigorous imprisonment for two years has preferred this appeal against his conviction and sentence. It appears that there is a plot of land about 10 bighas in area in village Mow which was admittedly jagir tenure of one Ramkishore Pandey who is virtually the complainant in the present case. On 2nd August 1911 Ramkishore Pandey settled this land with Khargu Mahto, father of one Deodatt Mahto who was one of the accused persons tried with the appellant for a term of five years under a registered lease dated 2nd July 1911. This land came to be recorded as the kaimi land of the members of Deodatt''s family in the record of rights which was finally published in 1916.

It appears however that an application was made u/s 108, Ben. Ten. Act, by Ramkishore Pandey before the survey authorities in which he attacked the entry as incorrect, and in the course of the proceeding a written statement was filed by one Komal Mahto, an uncle of Deodatt, in which he admitted the incorrectness of the entry. This matter however is of little importance for the purpose of determining the question of possession in this appeal, because it appears that on 30th June 1916 another lease was executed by Ramkishore Pande in favour of Deodatt; Mahto under which the land was settled with Deodutt Mahto and the other members of his family for a period of seven years.

There is no dispute that Deodatt Mahto and his relations continued to be in possession of the land up to 1923, but according to Ramkishore Pande they gave up possession in that year, and after being in khas possession of the land for some time, he settled it on 11th June 1924 with one Lachuman Sahu for a period of five years under a lease which was not registered. Ramkishore Pande has further stated that Lachuman Sahu continued to be in possession of the land even after the expiry of the term of the lease in consideration of his having advanced a sum of Rs. 200 to Ramkishore Pande, but he gave up possession some time in,1932 and the possession of the land was then taken over by Ramkishore Pande. It is not disputed that a serious fight took place between Ramkishore and his men on one side and Deodatt Mahto and a number of persons on the other side on 15th November 1932 in which one Ramkishun Singh was killed and one Musafir Singh received a grievous injury on the side of Ramkishore Pande and five persons were injured on the side of Deodatt, two of them Nihora Mahto and Naubat Mahto, having received grievous injuries.

The question which was principally, debated in the trial Court was whether the land was in possession of Ramkishore or whether it had continued to be in possession of Deodatt notwith standing the fact that the lost lease executed in his favour expired some time in the year 1923. The learned Judge has on a consideration of the entire evidence before him held that the land was in all probability in the possession of Deodatt Mahto on the day of occurrence.. (After examining the evidence and holding, that the finding of the Judge was neither unreasonable nor mistaken, the judgment, proceeded.) Now, as I have already stated, there were two versions put forward before the learned Judge, one on behalf of Ramkishore Pande and the other on behalf of the accused persons. These versions have been set out in detail in two informations lodged at the Tikari Police Station on 15th November 1932, the information by Deodatt being given at 5 p.m. and the information by Ramkishore at 6 p.m.

Ramkishore''s version was that he had taken several men to cut the paddy on the disputed, land and while they were cutting it they saw some 25 persons coming from the west, and when they arrived two of them, Nihora and Naubat, claimed the land on the ground that they were recorded as tenants of the land in the survey papers, and also used abusive language. Thereupon Musafir Singh, a barahil of the Tikari Raj, came up to prevent the parties from fighting, but Janki and Nihora did not pay any heed to him and proceeded to assault him. Musafir warded the blow with his lathi, but as the result of a blow dealt by Janki his left thumb was cut off. One of the accused, Deonandan, hit Ramkishun Singh with a spear and Ramkishun Singh fell down and died, whereupon the riotera fled away.

The version given by Deodatt on the other hand was that his brother had transplanted paddy on 5 bighas and that on the day of occurrence, while his brother Naubat and others were cutting the paddy, an armed mob came from the direction of Rewai village and attacked the persons who were cutting the paddy and caused injuries to them.

The learned Judge has virtually accepted the defence case and although he has held that both parties were armed and ready to fight, yet he also definitely found that Ramkishore and his party were the aggressors and the accused, were entitled in the exercise of the right of private defence of person and property even to cause grievous injuries to their assailants. Strangely enough however the learned Judge has denied the right of private defence to the appellant on the ground that it was not specifically pleaded by him.

It may be stated here that the main defence of this appellant was that he had not taken any part in the occurrence and that he bad been falsely implicated because he had litigation with the Tikari Raj and that one of the criminal cases in which he was accused at the instance of the Raj went up to the High Court and he was ultimately acquitted. Now, it appears to me that the learned Judge has taken a mistaken view of the law. It has been frequently held by this Court as well as by other High Courts that the right of private defence may be pleaded even alternatively with the plea of alibi and that the right should not be denied to an accused person merely because he does not specifically plead it, provided that circumstances found by the Court are such as clearly entitle him to the exercise of that right.

In this particular case the learned Judge has found that the appellant was with Deodatt and the other persons who were according to him in possession of the land; that Deodatt''s party was attacked by a mob which came from Rewai along with Ramkishore Pande and that Deodatt and his relations who claimed to be in possession of the land were entitled to defend both their person and property in exercise of the right of private defence. As the Penal Code gives the right to a stranger also to defend the person and property of another person, I do not see how the right of private defence can be denied to the appellant upon the findings arrived at by the learned Judge. It appears to me therefore that upon those findings alone the appellant is entitled to an acquittal.

The learned Assistant Government Advocate however contends that according to the prosecution case and the evidence adduced at the trial on behalf of the prosecution Musafir came upon the scene not as a member of the mob but to intercede in the quarrel and therefore there was no justification for the appellant or for anybody else to attack Musafir and to cause injuries to him. The learned Assistant Government Advocate would have been undoubtedly right in his contention if it was established clearly that Musafir was not a member of the mob led by Ramkishore Singh but appeared on the scene only to prevent the parties from fighting. The learned Judge however does not appear to have accepted this case.

He has indicated in his judgment that the story that Musafir who is a barahil of Tikari Raj was a mere chance passer-by and intervened to save the complainant was not very probable, but on the other hand in view of the fact that the local Raj agents were not on good terms with the Koiris of Mow, it was more likely that they would come forward to help the complainant who was himself an employee of the Raj. He has also pointed out that Musafir Singh had admitted before the police that he had gone with the complainant to the disputed field. Musafir has himself admitted in his evidence that he had a dante and that he used it though he says he did so to save the complainant.

I think the learned Judge was quite justified in taking the view that Musafir was one of the members of the complainant''s party. I would therefore allow this appeal and set aside the conviction of the appellant as well as the sentence passed on him and direct that the appellant be acquitted.

Saunders, J.

I agree.