Nathu Mahto and Others vs Emperor

Ray, J.—The eight petitioners have been convicted under Sections 147 and 324 read with Section 149, Penal Code, and they have been sentenced to six months'' rigorous imprisonment each and to pay a fine of Rs. 50 each in default three months'' rigorous imprisonment.

A very brief outline of the facts leading to this prosecution are that the petitioners are residents of village Jagdishpur in which there are jungles of fuel wood and of other kinds of trees. Admittedly in Part 2 of the Khewat they have been recorded to have the customary right of taking their necessary fuel from the jungle. The complainant''s party belong to an adjoining village Barasi and some of the residents of Barasi have got raiyati lands in Jagdishpur. The complainant''s party by virtue of their possession of raiyati lands in Jagdishpur also claim to have similar customary right to take fuel from the jungles. On the day of occurrence, the complainant''s party armed with their alleged customary right, came in a body with 18 or 20 carta and cut fuel wood and while they were carting them they were opposed by the accused persons and certain others of village Jagdishpur as they thought that the complainant''s party had no such right and they by their action were encroaching upon the rights of the accused persons. Admittedly there was mutual marpit and a large number of people of Jagdishpur belonging to the petitioners'' party were injured and one of them died of injuries in the hospital, while some three men of the complainant''s party had also been injured. Both parties lodged information against each other and the police charge-sheeted both the parties.

The learned Magistrate acquitted the complainant''s party and convicted the petitioners as already mentioned and had originally sentenced them to rigorous imprisonment of 1 year each. The learned lower appellate Court has reduced the sentence of imprisonment to 6 months each, as I have already stated. The trial Court considered that the complainant''s party, coming as they did under the protection and with the permission of the landlord, were fully justified in removing fuel wood and inflicting injuries on the people of the accused''s party in vindication of their right, while the learned lower appellate Court took the view that the question of the right of private defence did not arise as both parties had come determined for a premeditated fight, though the villagers of Jagdishpur were worsted.

I have gone through the entire evidence on the record, and I am of opinion that the petitioners have been wrongly convicted, and in my view this flows from a complete misapprehension of the right and title of the people of Jagdishpur with regard to the jungles, and though very reluctant, I am constrained to observe that the learned Courts below have not paid proper attention to the state of evidence on record.

The following is the summary of the evidence with regard to the respective rights of the parties. On the evidence of P.W. 2, who is a cosharer landlord, it is clear that the jungles are divided into 2 parts, zamindar''s rakhwat and tenant''s katawat, that is to say, jungles reserved for the zamindar and the jungles in which the tenants are given free hand for the purpose of taking their fuels. The disputed jungle along with certain other jungles consisting of an area of 300 acres had been let out in mukarrari by the 16 annas landlord to one Mohni Mohan Mukherji whose son Khity Nath Mukherji is p.w. 2. This Mohni Mohan has no other interest in the village except owning the jungle and it is significant to note that he has no tenant under him cultivating any raiyati lands and belonging to village Barasi. About 20 years ago the tenants of Jagdishpur having cut out fuel wood from the jungles within the mokarrari interest of Mohni Mohan Mukherji, there was a litigation and that litigation ended in a compromise by which it was agreed between the parties that Mohni Mohan should set apart 100 acres of jungle lands for use by the villagers and the other 200 acres would remain as his reserved forest. This 100 acres of jungle lies to the east of his old bhandar, and it is clear from the evidence of the officer in charge (p.w. 14) that the occurrence took place in this jungle and he had visited this part of the jungle only in course of the investigation of the case. From the evidence of P.W. 12 him self, it is clear that the residents of Jagdishpur and the raiyats of Jagdishpur have a right to cut fuel wood and they have been doing so all along in exercise of their right and without any permission from the landlord. This point has not been kept in view by either of the learned Courts below, and this will be clear from a quotation from the judgment of the trial Court which runs:

From the entire evidence placed before me, it is clear beyond all doubts that the P. Ws. under the above condition had right to cut the wood. It is quite different thing that the tenants of Jagdishpur may not like it, as it goes against their interest, as thereby their freedom would be curtailed. It has been argued that the landlord can even dispose of the entire jungle in the manner he likes and the tenants can''t have any objection to such disposal. His right only comes in the jungle left and as it stands.

This observation is entirely unjustifiable and unjustified in view of the admissions made by the landlord''s witnesses to the effect that from the jungle in dispute the tenants can cut fuel at their sweet will without any interference on the part of the landlord. Therefore, the trial Court''s view not set aside by the lower appellate Court that it is open to the landlord to introduce anybody and everybody into the jungle to cut fuel will not stand scrutiny. The rights of the people of Jagdishpur to cut fuel wood from this jungle in dispute would, therefore, depend upon any pre-existing customary right standing in their favour, but such a right cannot be newly conferred by the landlord at his sweet will. The learned Government Advocate for the Crown in fact advanced the self same argument and urged strenuously that every tree growing in the jungle belongs to the landlord and the landlord can cut it himself or can introduce another tenant at his own option to cut fuel wood, and the tenants will have absolutely no right to prevent or oppose the cutting by the landlord''s nominees and when they do so they are in the wrong.

Both the learned Courts below seem to have been misled by a theory set up by the prosecution, namely, that in a panchayat which took place 7 or 8 days before the occurrence it was going to be settled, but for the ultimate backing out on the part of the villagers of Jagdishpur, that 100 acres out of 300 acres of Khity Nath Mukherji''s jungle should be set apart for the people of Barasi and the rest for the people of Jagdishpur, and the learned Courts below seem to have thought that as the villagers of Jagdishpur backed out from this arrangement and all the while were preparing for armed opposition to the legitimate right by the villagers of Barasi, they must be taken to be the aggressors and they cannot claim any right of private defence in justification of their conduct. This again, I am constrained to say, is directly against the evidence on record. P.W. 2 is one of the cosharer-landlords who comes to depose about the panchayat. He says that the panchayats were proposing to divide the 100 acres lying to the east of the old bhandar into 60 and 30 as between the villagers of Jagdishpur and Barasi, and the investigating officer says that P.W. 2 did not even tell him this story at the stage of the investigation. On the contrary, it appears from the evidence of P.W. 12 that 100 acres were set apart by his father in course of compromise in the previous litigation for the villagers of Jagdishpur and for the raiyats of Jagdishpur. It is clear, however, that the villagers of Barasi in cutting fuel from the jungle in question were asserting their exclusive right over the entire 100 acres of jungle. This, therefore, amounted to a complete denial of their (Jagdishpur people''s) right, keeping in view that the tenants had already agreed to leave 200 acres as reserved jungle in favour of the landlord, and if they are driven out of this 100 acres lying to the east of the old bhandar, they should be deprived completely of any right whatsoever to take fuel from the jungle, It is not only a question of diminution of their right but it is a question of complete extirpation of their right to take fuel from the jungle and their (prosecution party''s) action has to be judged on this background.

Coming to consider the rights of the villagers of Barasi, the question raised was whether they have got anything under the compromise already referred to; but that compromise took place 20 years ago and it said "the raiyats of Jagdishpur and residents of Jagdishpur". The former phrase should certainly include resident of any other village who is a raiyat of Jagdishpur. The compromise can, with certainty, be interpreted to mean that the persons entitled to cut fuel would not include persons who had at that time no raiyati interest in the village. In view of the pre-existing customary right defining the rights and obligations as between the landlord and the tenants, it was generally agreed that the landlord should not be permitted, particularly after the agreement, to withdraw a large parcel of the jungle and to introduce new tenants on a pretext of they being persons who are also raiyats while in fact they were not raiyats at the time when this agreement was finally reached. It is open to doubt whether the compromise could affect the rights of Jagdishpur tenants. Secondly, there is another aspect of the case which has been completely lost sight of by the Courts below. The evidence of P.W. 2 and P.W. 11 both of whom are cosharer landlords is very clear on the point that, so far as the residents of Barasi who have raiyati lands in Jagdishpur are concerned, they have their rights to take fuel from the jungle belonging to their respective maliks. It is to be borne in mind that besides these 300 acres which were settled in mokarrari with Mohni Mohan Mukherji the landlords have in their own patti jungle lands, and if there happens to be any villager of Barasi who owns any raiyati land in Jagdishpur, he has to look to his own landlord''s jungle for the purpose of supply of his necessary fuel. It is admitted by P.W. 12 himself and also by P.W. 2 that Mohni Mohan or for the matter of that Khiti Nath had absolutely no tenant possessing any cultivable land in the village. Therefore, on the strength of possessing any raiyati land no resident of Barasi can lay claim to any part of the jungle in possession of P.W. 12. True that in the compromise two people of Barasi were parties, but none of them happens to be in the complainant''s party who came on the day of occurrence to enforce a right in the jungle. That some of the prosecution witnesses are setting up a new claim to this jungle will appear from the very statements they have made in Court. P.W. 1 admits that the tenants of Barasi take fuel wood from the jungle of their respective landlords, but he says, because Mohni Mohan Mukherji is a mokarraridar of the 16 annas landlords, therefore, they can take fuel from his jungle. This seems to be a completely new right. P.W. 7 says that he takes fuel from the jungles of all the zamindars and also from the jungles of Mohni Mohan Babu. P.W. 2, one of the cosharers-landlords speaks:

No permission for taking fuel from Mohni Babu''s jungle is necessary but nobody can take fuel from the jungles of landlords without their permission.

But he states that there is no tenant in Mohni Babu''s share because his share consists only of 300 acres of jungle and nothing else. P.W. 10 says: "No tenant or malik can cut wood from my jungle. Tenants cut wood from the jungle of their maliks of Jagdishpur." From what I have quoted above from the evidence, it is clear that no resident of Barasi even if he has raiyati land in Jagdishpur has any right to cut fuel wood from the jungle in occupation of Mohni Babu and from the evidence of the officer in charge and the evidence on record, it is clear that the jungle in dispute consists of that 100 acres jungles of Mohni Mohan Babu which has been reserved and set apart for the use of the tenants of Jagdishpur and this jungle has been located by the officer in charge in which he is corroborated by P.W. 12 as lying to the east of the old bhandar. I have also gone through the evidence of all the tenants of Barasi who have been examined for the prosecution. I find none who can claim to have been a raiyat of Jagdishpur within a measurable distance 6f time from the date of the compromise above referred to. Most of them are tenants only of the last year and it was only one who could claim to his credit that he has got land for the last 6 or 7 years. Considered from this stand point also, I do not see that they are persons who are meant to have a title to the jungles of Mohni Babu within the meaning of the compromise referred to if such a compromise can, at all, be held to bind the residents of Jagdishpur.

The position, therefore, is that in the jungle the complainant''s party who cut wood on the day of occurrence had absolutely no right. If they had any, they had the right to cut fuel from the jungles of their respective landlords. Their cutting amounted to direct encroachment on the subsisting right of the accused persons. Therefore, the latter are completely protected by the right of private defence of property.

In view of the lower appellate Court''s argument that as the accused persons came prepared to fight, they cannot avail themselves of the right of private defence of property, I would say that this proposition of his is only partially correct. I do not know of any principle of criminal law which prevents people from getting themselves prepared, if necessary, with arms when they anticipate attack upon their subsisting right by an armed set of people. In view of the finding that the people of Barasi (having no shred of right to take wood from the jungle in dispute) were determined to come in a body and to take away fuel from the jungle in dispute, the villagers of Jagdishpur had every right to collect such arms and number of persons as were necessary to defend their property. In View of the very simple injuries inflicted on three of the complainant''s party, it cannot be said that they have exceeded the right of private defence. On the contrary, I have no hesitation in holding that, so far as the people of Barasi are concerned, they were not only aggressors but they acted throughout without any justification whatsoever either in the right of private defence of person or property in inflicting severe injuries on a large number of persons on the side of defence, and it is pity that they have been acquitted.

In my judgment, therefore, the rule must be made absolute. The convictions and sentences passed against the petitioners must be set aside and they be discharged from their bail bonds. The fines, if paid, will be refunded.