Matte Mandal and Others vs Emperor

Rowland, J.—This is an appeal by 15 persons who have been convicted by the Additional Sessions Judge of Santhal Perganahs on 8th September 1931, on charges as below:

All the appellants 9 months'' rigorous Section 147, I. P.C. imprisonment and fines of Rs. 100 each. Appellant 7 Dila- 3 years'' regorous war, Section 304, I. imprisonment. P.C. for causing death of Sheik Kausar Ali. Appellant 9 Atabul 18 months'' rigorous and appellant 15 imprisonment each. akhawat, Section 325 for causing grievous hurt to Sheikh Ainullah. 2. The sentences have been directed to take effect concurrently.

The prosecution case was that there had been dispute over fishery rights in the river Sunder at the portion known as Telia Bandh where there was a dam in the river for irrigation purposes and to prevent fish from escaping. The accused''s party claimed to have a right of fishing in this bandh by virtue of an old settlement on payment of Rs. 4 annually. The settlement is said to have been made with a common ancestor of the principal accused and of Ainullah, but no document of lease appears to exist. The zamindar in 1336 made a settlement of the entire fishery right in the disputed water with Ainullah and again made settlement with him in 1338 on a rental of Rs. 41.

The party of the accused considered this settlement to be an infringement of their right, and on 13th March 1931, they collected a body of men (50 or 60 in number according to the first information report but in evidence it appears Matte''s party numbered 18) with the object of fishing in the stream and having made preparation to overcome any possible opposition. There was a report made to the thana by the chaukidar Ransi Hazra to the effect that a breach of the peace between the two parties appeared imminent. In the meanwhile there was in fact opposition to the accused''s party offered by Ainullah and others and a fight ensued out of which the charges arise. In the fight on the prosecution side Ainullah, Asghar, Zamiruddin, Kausar, Manullah and Ashraf received injuries, and on the side of the accused Matte, Sabadullah, Bohi, Sakrullah, Dilawar, Jamaluddin and Jahid were injured. Of the injuries on the prosecution party the head injuries on Ainullah were found to amount to grievous hurt, while Kausar received head injuries which caused his death in hospital on 7th April 1931.

The charge of rioting recites as to the common object of the unlawful assembly of accused "enforcing a right or supposed right to catch fish in the river Sunder." The Sub-Inspector receiving the report of chaukidar Ransi Hazra sent a head constable, Gauri Prasad Singh, and constable Sheikh Ismail to the place to prevent breach of the peace. They were still on their way to the place of occurrence when they met some members of the prosecution party who had been injured and were going to the police station. The head constable went on to the place and found some persons of the accused''s side also to have injuries. He advised them to go to the police station also and informations were laid on behalf of the prosecution party (Ex. 2) by Deyali at 5 p. m., and on behalf of the accused''s party by Matte Mandal (Ex. 16) at mid night. The police officers found foot marks in the mud at the river, marks of blood on the stumps of the paddy in the field, and three fish traps (pairas) were recovered from the house of accused Matte Mandal. Twenty-one witnesses were examined for the prosecution and eight for the defence. The first information of Deyali was to the effect that Sheikh Ainullah and his party were catching fish in the bandh when the accused''s party came armed with lathis and assaulted the prosecution party, whereupon the accused''s party began to fish.

The information of Matte Mandal was to the effect that the accused''s party had gone to the bandh to fish when Ainullah and his partisans came armed with lathis and began to assault the accused''s party who, in order to protect their rights and save their lives, used their lathis. It has transpired that it was the party of the accused, and not the party of the prosecution, who had gone to fish in the bandh, and it was the party of the prosecution who had gone to prevent them. To this extent the information of the accused is more correct than that given by Deyali. Deyali says he was an eyewitness; Matte, accused was a participant and had received four injuries, one of which amounted to grievous hurt, by fracturing the left ulna bone. The prosecution witnesses deposed that their party merely protested against the taking of the fish by Matte and those with him and did not assault him. But having regard to the nature of the injuries on both sides the Sessions Judge held that there was a mutual and free fight in which men of both parties were injured. The Sessions Judge is obviously right.

The parties entered into evidence as to the fishery rights in Telia Bandh and the learned Sessions Judge held that Ainullah had taken settlement of the bandh from the landlord and that the right of the accused''s party to fish in the bandh though entered in the village note was not shown by that note to be a permanent or continuing right. Now there is some evidence notably Ex. B, a petition dated 7th November 1930, filed by Ainullah before the Subdivisional Officer of Godda indicating that until the settlement was made by the landlord with Ainullah both parties jointly were in enoyment of the fishery rights in the bandh, and it may be that if it was necessary for as to go thoroughly into the question of title we might find that the answer was not so clearly in favour of the prosecution party as the Sessions Judge thought; but the proper place for a finding on matters of title is in a regularly constituted litigation between the parties claiming title and though cases may arise in criminal Courts where without deciding a question of title the matters directly under trial cannot be properly disposed of, it is desirable to limit one''s findings as to title in criminal proceedings to those cases in which a finding is necessary and to those points only which the Court is compelled to determine. 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, I. P.C. are important:

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Now we have it from tie chaukidar Ransi Hazra that he was informed by Ainullah that:

he had taken settlement of Telia Bandh from the zamindar, but Matte Mandal was preparing to fish in it and when he (Matte) would go to fish he (Ainullah) would oppose him and in doing so there might be a breach of the peace.

Ransi Hazra further says that before going to the thana he had met Matte Mandal and told him what Ainullah had said, whereupon Matte replied that the property was his and Ransi might go to the thana, which amounts to saying that Matte did not intend to act on the warning given. The credibility of this evidence of Ransi Hazra was challenged but we find no reason to doubt it. The chaukidar appears to be an honest witness, and he impressed the Sessions Judge as such. That being so, the substantial fact is that the party of the accused went to the place knowing that they would meet opposition and taking with them a large body of men to defeat that opposition. The party of the prosecution incidentally appear to have done exactly the same thing. In the circumstances it is clear that neither party can claim any right of private defence, and the assemblies of men on both sides were unlawful. It is not of much importance in the circumstances which side began the attack when both parties contemplated a fight and prepared for it in advance: see Kabiruddin v. Emperor [1908] 35 Cal. 368.

The only point remaining is whether each of the appellants is proved to have taken part in the riot and whether the specific charges against individuals are proved against them. The eyewitnesses are P. W. 2 Deyali, No. 7 Ainullah, No.9 Manullah. No. 12 Asghar, No. 13 Ashraf, No. 15 Azmatullah, No. 17 Ranjit and No. 18 Gholtan. Six of the appellants had injuries and eleven of them, that is to say, all except Atabul, Amin, Babuli alias Bhagruli and Sakhawat have admitted their presence at the occurrence. The manner in which their identification was taken from prosecution witnesses might be improved on, several of the witnesses having said in general terms "the accused persons were present."

However there is evidence against all the appellants and only one, namely, Amin has sought to rebut it by examining witnesses to prove an alibi. The two witnesses examined are his uncle Sheikh Akbar residing in village Jhapania and Sabir a near neighbour of Akbar. Their evidence is indefinite as to date and they appear to be interested in this accused. Amin is mentioned in first information and in evidence by Deyali and Ainullah of whom Ainullah says that he was struck by Amin. Other witnesses have identified Amin along with other accused without naming him. The Sessions Judge was right to accept the prosecution evidence rather than that of the alibi witnesses.

In the result the finding of the Sessions Judge regarding all the accused must be affirmed, and the appeal dismissed.

The dispute is of such a nature that it seems likely that it may lead to further breach of the peace when the appellants and the combatants of the other party, who have been convicted in the counter-case, are set at liberty. The Subdivisional Officer will no doubt take steps to obviate such a danger in due time by a proceeding Under Sections 107, 145 or 147, Criminal P.C., as he may find appropriate.

Courtney-Terrell, C.J.

I entirely agree.