Mohamed Habib vs Emperor

Varma,. J.

This is an appeal on behalf of one Mohamed Habib who has been convicted by the Sessions Judge of Darbhanga, u/s 304, I.P.C., and sentenced to two years'' rigorous imprisonment. Two other persons, Abdul Sattar and Sheikh Salim, stood their trial before the same Court but they have been acquitted by the learned Sessions Judge. The occurrence is said to have taken place on 19th July 1939, at village Andhri which is at a distance of 12 miles from Police Station Darbhanga. On that date the Sub-Assistant Surgeon from village Sakri, which is at a distance of five miles from Andhri, was summoned to attend to the injuries on Wahab, at 8 P.M. He came and gave first-aid and advised them to take the injured person to the hospital.

Wahab was taken to the hospital hut he died without recovering consciousness. Habib, the present appellant, happens to be the youngest of four brothers. The eldest was Wahab, the deceased; the next was Razaque; and the third was Sattar. It is said that these brothers have got a cousin Saleem. The prosecution case is that Sattar and Habib were sitting at about 4 P. M. at the door of Saleem. Wahab went there and asked his brothers to take back the registered deed from the Registration Office and then divide the belagan lands, adding that delay would entail fine. The receipt happened to be in the name of Habib. Sattar and Habib refused;

Then Wahab asked for the receipt, so that he might take back the document. This led to an altercation and abuses, and on the orders of Ziarul Hague, who is said to be a father-in-law of Habib, to assault, Habib struck Wahab on the head with a lathi, and Saleem struck him on the right wrist. It is said that Sattar and Hafiz, son of Ziarul Haque, also struck Wahab with lathis. Wahab in self-defence hit Habib and Sattar. Wahab fell down senseless into a tank close by, and then the others turned on the complainant Razaque and chased him, but he ran away. Majeed is said to have taken out Wahab from the tank, and Wahab was taken to his own house.

The case of the accused is to be gathered from the written statement. The accused did not make any definite statement before the committing Magistrate and in the Sessions Court, although Habib ''admitted that there was a fight between the four brothers on account of a share of their aunt''s property, he did not know who hit whom, nor did he admit having hit anybody in the fracas. It may be noted that Abdul Razaque was found to have an abrasion with a swelling on the left forearm about two days old. Sattar succeeded in proving that he had an abrasion with a swelling on the left leg, a bruise with swelling on the back of the left knee, a swelling on the left forearm, and also a bruise on the left arm.

Habib had a swelling on the left index finger and the thumb, and a swelling on the left forearm. The injuries on Wahab were these: (1) fracture of the right ulna, (2) a lacerated longitudinal wound 2"x 1/4" scalp deep on the vault of the skull about 1" to the right of the middle line. On dissection, there was found ante mortem clot around the wound. The doctor noticed an injury also on the chest but that injury does not seem to have been the result of an assault on Wahab; it might have been due to a fall after having received the injuries on the head and the arm.

Death, according to the doctor, was due to the injury on the head and the pressure caused on the brain on account of that injury. In the post mortem report the doctor says "the death in my opinion was due to shock and compression due to the head injury."

The trial was with the aid of three assessors. The first assessor was of opinion that Habib was not proved to have hit Wahab on the head, nor that Sattar or Saleem caused grievous hurt to Wahab; the second assessor was of opinion that the charge was not proved and the third assessor was also of the same opinion as the second one. The first information report in this case was lodged not earlier than 21st July 1939, at 8 A.M. although the occurrence is said to have taken place on 19th July 1939 at 4 p.m.

The learned Sessions Judge has not accepted the defence version of the occurrence inasmuch as he says that it was not proved that the occurrence took place at the field which was the subject-matter in dispute. So far as the prosecution version is concerned, he considers that the delay in lodging the first information report should lessen our confidence in the exactness of the report. Of the eyewitnesses examined in support of the prosecution story, he relies to a certain extent upon the evidence of Zainul (P.W. 3) and Sadaruddin (P.W. 4); but he does not rely upon the evidence of Sundar Sao (P.W. 5). Without going into the details of the evidence, this case can be disposed of on the findings of the learned Judge himself.

After having discarded the evidence of one of the eyewitnesses, and that for very good reasons, he was of opinion that it was Wahab, the deceased, who was the aggressor. He says that according to the evidence it was Wahab who first came to the spot carrying a stick, and that Habib and Sattar at the time had no weapons. It was however not clear from the prosecution evidence when and how they got the weapons. Now, on these findings the question that arises is whether it could be said that the appellant had a right of private defence. Wahab came to the place with a stick in hand. There is no doubt that some injuries were caused to Habib by means of a stick. Under those circumstances, if he hit back and caused injuries to his assailant which ultimately resulted in death, it cannot be said that he exceeded the right of private defence, if at the time he inflicted the injuries he did not realize that they were of a very serious nature.

Looking at the nature of the injury caused on the head of Wahab, which ultimately caused the death of Wahab, it appears that the skull was not fractured; and it was due chiefly to the pressure on the brain that death ultimately resulted. It cannot therefore be said that the injury inflicted by the appellant on Wahab''s head was of an unusually severe nature or that it was intended to be so. It appears, therefore, that the appellant had in the circumstances a right of private defence which he did not exceed in protecting himself against his assailant. I would therefore allow the appeal, set aside the conviction'' and sentence passed upon the appellant and direct that he be acquitted and set at liberty forthwith. His bail bond, if any, will be cancelled.

Harries, C.J.

I agree.