Nareshi Singh vs Emperor

Facts.--A serious fight took place between the inhabitants of mauza Gopalpur on the one hand and mauzas Chainpurwa and Naraon on the other. It resulted in the death of five men namely Mahabir Ahir, Doman Ahir, Sheogulam Ahir, Jangi Ahir and Bhirgo Mahto, on the Gopalpur side and three men, namely, Deonandan Singh, Kamla, Singh and Deepan Singh, on the other side. Among the wounded were also Kamla Singh, Mukhram Singh, Prem Narain Singh Ambica Ahir and Pohkhan Ahir on the Gopalpur side and Narayan Singh and Sheobaran Singh on the Chainpurwa and Naraon side.

Mukhram Singh gave a report to the effect that nine buffaloes and cows belonging to Birchi Singh of of Chainpurwa and Lalji Singh of Naraon had trespassed into his maize and raher field and that while he, accompanied by his co-villagers Bhirgu Mahto, Narsingh and Prem Singh, was driving them towards the pound at Santa, about sixty to seventy men of the opposite party armed with spears, lathis, garasas pherasas, attacked them and rescued the cattle, and in the course of the attack injured the persons mentioned above. Ram Andeshi Singh reported that owing to long standing enmity, some ahirs of Gopalpur were cutting Deonandan Singh''s paddy, that Kamla and his father Deonandan caught an ahir named Binda, that thereupon 100 to 150 men from Gopalpur came up and attacked Deonandan and Kamla, who were reinforced by a number of Chainpurwa and Naraon men and that a fight resulted in the course of which Deonandan and others of his side received serious injuries and Binda was rescued. The Sessions Judge on the 3rd February, 1923, delivered judgment in both cases. Out of the twenty man on the Chainpurwa and Naraon side, who were committed for tri-al, the Sessions Judge acquitted five and sentenced the remainder u/s 302 read with Section 149. Out of the eighteen men in the counter-case, he acquitted nine and sentenced others u/s 302 read with 149. The accused in the former case presented appeal No. 20 (Death Reference No. 6) and those in the latter, preferred appeals Nos. 21 and 22 of 1923 (death Reference No. 7 of 1923.)

Mullick, J.

[After setting out the facts of the case his Lordship proceeded as follows:]

Before proceeding to deal with each appeal separately, it is necessary to observe that neither the Public Prosecutor nor the learned Judge nor in one cess the assessors seem to have believed the respective accounts of either party regarding the origin of the fight. The police were inclined to believe the ''cheirai'' (grazing) story but in the Sessions Court the Public Prosecutor appears to have boldly told the Court that he would not support either that story or the paddy cutting story and he set no altogether a new theory, namely, that both sides by agreement had fought a pitched battle. The learned Judge has accepted that view with the result that a situation of some difficulty has arisen before us.

In the case against the Chainpurwa and Naraon men the accused cross-examined the prosecution witnesses in order to show that their story as to the grazing and the capture of cattle was false, but they did not call any evidence to show that their own accounts as to the paddy cutting was true. Some of them, however, went to considerable trouble to call evidence to prove alibis.

In the counter case the Gopalpur men took the same course and one of the assessors was inclined to believe the story of paddy cutting set up by Ram Andeshi.

Before us the learned Counsel for the appellants, in both appeals, have had a somewhat easy task in overthrowing the finding of the learned Judge that there was a premeditated and pre-concerted fight, for the simple reason that there is no evidence whatsoever upon which such a finding can be based. The learned Judge in the case against the Chainpurwa men relies on the evidence of prosecution witness Sukan Ahir, but that evidence, in my opinion, proves very little. It merely shows that the two sides were at enmity with each other and that a fight did take place. It altogether fails to show how the fight originated and it cannot warrant the inference that the parties turned out by agreement to have a fight merely for the sake of fighting.

[The judgment then stated the arguments of Counsel and disposed of Appeal No. 20 and Death Reference No. 6 of 1923 and continued.]

Appeals Nos. 21 and 22 of 1923 and Death Reference No. 7 of 1923.--In this case out of seventeen men from Gopalpur, whom the police sent up for trial under the orders of the Superintendent of Police and against their own judgment, only ten were convicted. Out of these ten men the appellant, Ram Nareshi alias Nareshi, has been sentenced to death and the remainder have been sentenced to transportation for life, u/s 302 read with 149.

The learned Judge states that he is not in a position to find which of the accused caused the deaths of Deonandan Singh, Kamla Singh and Deepan Singh, but he finds that one or more members of the unlawful assembly committed murder by killing these men in prosecution of the common object of the unlawful assembly.

As in the counter case, the learned Judge has declined to accept the story that Deonandan and Kamla caught a number of ahirs of Gopalpur cutting their paddy. The Gopalpur men, who were the accused in this case, have given no substantive evidence in proof of their allegation that the riot originated out of a seizure of cattle by Mukhram Singh, but fortunately for them the prosecution have put upon the record the evidence given by appellants in the counter case when they were prosecution witnesses. It is clear from that evidence and from the reasoning of the learned Judge that the account given by the Gopalpur men as to the origin of the riot is substantially correct.

There is no evidence in support of the theory put forward by the learned Judge that the Naraon and the Chainpurwa men came to remonstrate with the Gopalpur men as to the cattle grazing of the previous day and of previous acts of aggression and that a quarrel broke out in which both parties joined and engaged in something in the nature of a pitched battle.

The learned Government Advocate however, contends that, accepting that the riot originated as alleged by the Gopalpur men in the seizure of cattle by Mukhram Singh, yet this is a case in which no right of private defence can be claimed by the Gopalpur men. He contends that in taking the cattle to the orchard of Mukha Singh and collecting reinforcements and in awaiting the attack of the Chainpurwa and Naraon men appellants in this case were clearly members of an unlawful assembly and he relies strongly upon Kabiruddin v. King-Emperor [1908] 35 Cal. 368. In that case the learned Judges appear to have approved the following statement of the law as given in the Sessions Judge''s charge to the Jury. "In laying down the law I rely, first, on the clear language of Section 141(4), which refers to an actual right as well as a supposed one, and then on a long series of rulings which begin with Queen-Empress v. Jeolall [1867] 7 W.R. Cr. 34 and end with Anant Pandit v. Madhusudan Mandal [1899] 26 Cal. 574. There can I tell you, be no right of private defence, either on one side or on the other, where both parties are evidently aware of what is likely to happen and turn out in force. The right of private defence cannot be pleaded by persons who expecting to be attacked, go out of their way to court an attack. When the parties of the complainant and accused are prepared to fight, it is immaterial who was the first to attack, unless it be shown that the accused were acting in the exercise of the right of private defence. If the accused, it was held by the Judges at Allahabad not many years ago see Queen-Empress v. Prag Dat [1898] 20 All. 459, were determined to vindicate their supposed rights and engaged in a fight with men equally determined to vindicate them no question of private defence can arise. It comes to this simply, that our law does not permit rival claimants to enter in cold blood into battle to settle a dispute which can be settled in a lawful manner. "And the learned Judges of the Calcutta High Court draw attention to the words of Holloway, J. in Hyde v. Graham [1862] 1 H. & C. 593 where that learned Judge observes as follows: " The natural tendency of the 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 De safely applied to a country like this." It is clear, however, that the decision in Kabiruddin''s case [1908] 35 Cal. 368 was founded on the fact that the question of possession was in dispute and that the appellants before their Lordships were members of an unlawful assembly, firstly, because they were attempting to enforce a right or a supposed right by violence, and secondly, because there was sufficient time to inform the authorities. Where however, possession is undisputed or where there is no time to seek the assistance of the authorities, I cannot agree that there is any obligation upon a person entitled to exercise the right of private defence and to defend his person or his property to retire from the field merely because his assailant threatens him with violence. I see nothing wrong on the part of the Gopalpur men in awaiting the coming of their antagonists and in maintaining their possession of the cattle which they had lawfull seized.

The law did not require them to retire as soon as Deonandan and Jaji went away to fetch reinforcements. The learned Government Advocate seems to suggest that it was their duty to release the cattle and to complain to the authorities, but I entirely disagree with hi n. He next contends that it was not their intention to impound the cattle at all; and that their object was merely to fight for fighting''s sake; and he relies on the circumstances that they remained in Makha Singh''s orchard for an hour before the fight began. There is, however, no clear evidence in support of the theory that the common object of the Gopalpur men was not to resist aggression but to resort to the ordeal of battle. The facts are equally consistent with their allegation that they did intend to take the cattle by the Local Board road and that as it passes Chainpurwa it was necessary for them to collect men in order to resist a possible attack. Something might perhaps have been said for the learned Government Advocate''s theory if they had let the cattle go and had then assembled on Mukha Singh''s orchard and given a challenge to the other side to come there and fight; but the evidence does not disclose any such conduct and as the rescue of the cattle amounted to theft under the Indian Penal Code, apart from an offence under the Cattle Trespass Act, the right of private defence of property was, in my opinion, clearly available to them. As a matter of fact the cattle escaped in the course of the fight and in my opinion it is established that the Gopalpur men did intend to maintain their possession of them.

Again, if the Chainpurwa and Naraon men entered upon Mukha Singh''s plot without the consent of the Gopalpur men and with the object of committing an assault, then they were guilty of the offence of criminal trespass, and the Gopalpur men had the right to eject them by such force as was necessary. It would have been otherwise if the entry was made in answer to a challenge to fight, but of this there is no evidence.

I think then the appellants are entitled to plead Section 97 of the Indian Penal Code and the only question is whether the force used was excessive.

Having regard to the savage nature of the attack and to the fact that no less than five of their men were killed I cannot say that the right of private defence was exceeded by the appellants. As was observed by Jenkins, C.J., in Bhut Nath Dome v. King-Emperor 13 C.W.N. 1180, a man acting under an apprehension of death cannot be expected to judge too nicely the force of his own blow; and the common law of England which is substantially also our law on this topic says that he is not bound to modulate his defence step by step according to the attack before there is reason to believe that the attack is over; 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.

The evidence is that the attack was commenced by the Chainpurwa and Naraon men and in my opinion the Gopalpur men did not use unnecessary force in repelling it.

The learned Counsel for the appellants, in one part of his argument seemed to suggest that once the right of private defence is conceded there can be no conviction u/s 302 read with 149. He contended that individuals might perhaps be convicted of exceeding the right of private defence but there could be no conviction of the other members of the assembly of that excess by implication and he relied on Kunja Bhuiya v. King-Emperor [1912] 39 Cal. 896. I do not, however, understand that case to lay down any such general proposition. In my opinion the law is that if the members of an assembly act with the common object of exceeding the right of private defence then they are not only all generally guilty of rioting but also of the particular offence constituted by such excess of user.

Under our law an assault is a crime except under certain special circumstances. Bat in one sense criminal force is a continuing wrong and there is a limit where the plea of justification ceases to operate and the liability to punishment revives; if one member in prosecution of the common object of an assembly exceeds that limit every other member shares with him the guilt of his act.

In the present case, however, the right of private defence not having been exceeded the question does not arise.

The result is that the convictions and sentences must be set aside, and, acquitting the appellants we direct that they be set at liberty.

Adami, J.

I agree.