Ramras Mahton and Another vs The King

Agarwala, Ag. C.J.

The two appellants, and three others who have been acquitted, were tried in the Court of the Sessions Judge of Saran u/s 302 read with Section 149, Penal Code. The appellant Ramras was also tried and convicted u/s 302 and sentenced to transportation for life. The appellant Rambaran was tried on a charge u/s 324 and convicted and sentenced to two years'' rigorous imprisonment. The charge u/s 302/149 failed against all the accused.

The facts alleged by the prosecution are that at about 3 p.m., on 17-10-1946, Ramdeo Singh, a resident of village Shivapur, was visiting a small piece of land which he held in village Lohra, where the accused persons lived, for the purpose of trimming the ridges of the field. Running along the northern boundary of this field an earthen platform separated the field from the house of the appellant Ramras. It appears that this platform was made by and has been in the occupation of Ramras for soma considerable time. While Ramdeo was cutting along the southern edge of the platform, Ramras armed with a bhala, appeared on the scene and objected. An altercation followed, in the course of which, it is alleged, the other four accused arrived on the scene armed with bhalas. Ramras is said then to have struck Ramdeo in the abdomen and in the chest with the bhala. As a result Ramdeo fell down in his field and died. He was also struck by Rambaran. The prosecution witnesses are said to have come up from the neighbouring fields in which they were working on hearing the altercation between Ramdeo and Ramras. A first information relating to this occurrence was laid at the thana seven milea away by Tribeni Singh, prosecution witness No. 1, at 5 p.m. Two hours later, Eamras appeared at the thana and laid a first information. According to this latter information, the occurrence took place at 1.30, when Ramras found two persons, whom he named, cutting away his chabutra, while Ramdeo and a number of others armed with various weapons were standing by. Ramras protested against the cutting of the chabutra and was thereupon assaulted. He fled into his house pursued by Ramdeo and his men, picked up a bhala in the house and injured an unnamed person while defending himself.

There is no evidence in support of the defence version of the occurrence. It was rejected by the Court below, and we have not been invited to reverse that decision so far as concerns the alleged flight of Ramras into his house, his pursuit there and his defence of himself in the house with a bhala. It is not, however, accepted that the assault on Ramdeo took place in the manner alleged by the prosecution. On the other hand, it is contended that the pro-babilities are that Ramdeo went to his field accompanied by a number of persons intent on demolishing the chabutra. and that, when Ramras protested against this, he was assaulted. There is, as I have said, no evidence in support of this version of the occurrence. It has been found in favour of the appellants, however, that Ramdeo was engaged in cutting away the southern edge of the platform. The Court below found that he was doing this under the impression that the chabutra encroached, to some ex. tent, on his field. The finding also is that Ramdeo was assaulted while he was on his own land because he refused to desiet from cutting the chabutra when Ramras objected. The Court below has not accepted the defence suggestion that the witnesses who have deposed in support of the prosecution case were persons who had accompanied Ramdeo to the scene for the purpose of ensuring the demolition of the chabutra. There has been no specific criticism of the evidence of the witnesses in this Court, although Mr. Nageshwar Prasad on behalf of the appellants has argued generally that the probabilities are in favour of the defence put forward in the Court below, namely, that the persons now posing as witnesses who arrived on the scene from their fields on hearing the altercation were in fact people who had accompanied Ramdeo to his field. In these circumstances, I see no reason to differ from the conclusion reached by the Court below as to the facts which may thus be summarised: first, that Ramdeo was engaged in cutting away the southern portion of the chabutra which was built by and had been in the possession of Ramras for some years; secondly, that Ramras objected to the cutting of the chabutra; and, thirdly, that the persons claiming to be eye-witnesses, who were residents of village Shivapur and who were working in their fields not far from the scene of the occurrence, came up and witnessed Ramras striking Ramdeo with his bhala. There is one other conclusion which must be accepted, and that is that some one struck Ramras with a cutting weapon. When he was examined by the Jail Doctor on the 19th it was found that he had three injuries: (1) an incised-looking injury on toe top of the head 2� � � and scalp deep; (2) an abrasion on the upper part of the right side of the nose � � � and (3) a longitudinal scratch on the dorsal aspect of the root of the left thumb 1/3 long and of insignificant breadth. The doctor''s opinion was that the first injury might have been caused by a sharp instrument and the second and third by a blunt instrument. The evidence tendered by the prosecution does not explain these injuries on Ramras. But that, in my view, is not sufficient reason by itself for rejecting the rest of the evidence in the case. These witnesses had been named by Ramras as his assailants in the first information, and while the investigations into the allegations against them were pending, they were not likely to make any admission against themselves. That is a common feature in cases like this, where injuries have been suffered by both sides.

I propose now to consider the plea which has been advanced on behalf of the appellants, namely, the right of private defence. This has been placed both on the ground of right of private defence of property and of the right of private defence of person. So far as the right of private defence of property is concerned, it is contended that, as the cutting away of the chabutra amounted to an act of mischief on the part of Ramdeo, Ramras is protected by the fourth clause of Section 103, Penal Code. That section protects a person who has caused death, if death has been caused in the exercise of the right of private defence in certain circumstances only. The fourth clause deals specifically with cases where the act which causes the exercise of the right of private defence amounts to theft, mischief or house-trespass. The clause, however, does not justify the causing of death in all cases. in which these offences are being committed. Its language, the meaning of which, to my mind, is quite clear, is as follows:

Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." This obviously means that it is when the act which amounts to theft, mischief or house trespass is such as per se to cause a reasonable apprehension that death or grievous hurt will be the result then the causing of death in order to prevent the commission of such act is justified. It does not apply when the apprehension of death arises by reason of the intervention of the persons exercising the right of private defence. The last nine words of the section make that quite clear. Section 104 applies in cases where an injury (but not death) is inflicted on the offender in the course of his committing the offences of theft, mischief or criminal trespass by the person exercising the right of private defence. But Section 104 does not apply to a case where death has been caused in exercise of the supposed right of private defence. The plea based on the right of private defence of person is concerned [sic], that is, of course, governed by Section 100 of the Code, and, in order to rely on that defence, it is necessary for the accused to prove that an assault was committed. The word "assault" is explained in S, 351 of the Code:

Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person is said to commit an assault.

It is not argued, and there is no evidence to she, that Ramdeo made any gesture of the kind referred to in this section. It is, however, argued that preparation had been made, giving rise to a reasonable apprehension on the part of Ramras, that he would be assaulted. The alleged preparation is the fact that there were present on behalf of Ramdeo men who were armed. As I have already indicated, the fact that Ramras received an incised injury does prove that somebody was present with a cutting weapon who used it on Ramras, although there is no evidence as to whether this was before or after Ramdeo had been assaulted. The mere presence of some one or more persons with a cutting weapon or weapons is not, however, sufficient to justify the attack on Ramdeo, unless at least it can be shewn that they were present armed with his knowledge and connivance; that is to say, if the defence can shew that ''one or more persons armed with cutting weapons were present at the scene in support of what Ramdeo was doing, namely, cutting the chabutra, then it might be arguable that this circumstance justified an inference that Ramdeo and those men had come there prepared to use criminal force against Ramras or anybody else who opposed them. But that is not what the evidence discloses in this case. All that is disclosed by the evidence is that the prosecution witnesses were working in their fields when they heard an altercation, that they came to the place where Ramdeo was working, and that at least one of them was armed with a cutting weapon. It does not prove that the person or persons who had a cut-ting weapon or weapons had made any preparation in consultation with Ramdeo, or that he was cognisant of the fact that they would come so armed. In my view, therefore, Section 100 does not justify the right of private defence of person in this case. That being so, in my opinion, the view taken by the Court below, both with regard to the facts and the law is correct, and must be upheld, and I would, therefore, dismiss this appeal.

In doing so, however, I feel constrained to observe that in view of the fact that Ramras had built the chabutra, the cutting of which was the cause of the present occurrence, and has been in undisputed possession for some years, the punishment which the law requires on his conviction for murder is so severe as to justify the attention of the proper authority being called to his case.

Mukherji J.

I agree.

BT2