Ramsagar Gope and Others vs Emperor

Madan, J.—This order deals with a death reference by the Additional Sessions Judge of Muzaffarpur in the case of four persons Ajodhya Gope, Pardip Gope, Siban Gope and Ramsagar Gope who have been sentenced to death for the murder of Siudhari Gope, Ramdhiraj Gope and Siaram Gope. There is also an appeal by these persons and by Prahlad Gope, Ramagar Gope and Ramjiwan Gope who have been sentenced to transportation for life u/s 302 read with Section 149, I.P.C. in the same connexion. The dispute arose over plot No. 1024, with an area of about 14 Kathas, which is situated in Balisahila which adjoins Kalyanpur where the parties live. Admittedly this plot was the sole landed property of one Tilak Gope who died some time prior to the year 1922. Thereafter there was a dispute between his heirs who belong to four branches of the family. The three murdered men and the witnesses Ramlakhan, Ramlachhan and Arjun belong to one of the branches which is discended from one Jaipal. Of the seven accused persons Ramjiwan, Siban and Pardip belong to the branch of Tufani, brother of Jaipal. Prahlad is the usufructuary mortgagee of the plot under Ramjiwan, and Ajodya, Ramagar and Ramsagar are related to Prahlad. According to the prosecution Siudhari came into possession of the entire plot as he was alleged to have paid the share of sradh expenses of Tilak. Subsequently Ramjiwan paid his one quarter share in those expenses and was given an equivalent share in the plot comprising a separate sub-plot on the north side. The rest of the plot remained in the possession of Siudhari. On 20th March last after sunrise Ramlakhan, Ramlachhan, Arjun and the three persons who were killed were harvesting the khesari crop grown by them in their portion of the plot.

Then the accused persons came in a mob armed with bhalas, gandasas and lathis and attacked them, with the result that the throe persons above named were killed and Arjun and Ramlachhan were injured. During the occurrence two chaukidars named Kantlal and Dhanesar arrived on the scene whereupon the rioters fled. A first information was lodged by Kantlal at midday at the thana which is 12 miles distant from the spot. The defence was that Tilak was living with Ramjiwan who was given the entire plot, and afterwards he mortgaged it with Prahlad. On the day of occurrence Ramsagar and some labourers were harvesting khesari grown by the mortgagee when Siudhari and a mob arrived armed with bhalas, gandasas and lathis. Ramsagar was assaulted and then Prahlad came to the spot and was also assaulted. Afterwards other persons came and there was a free fight and people were hurt on both sides. A first information was lodged to this effect by Ramsagar. The Sub-Inspector of Police inquired into both the cases and submitted charge-sheets, and this case has been first brought to trial. The learned Additional Sessions Judge held that Ramjiwan and the mortgagees were in possession of the entire plot, but he convicted the accused, holding that in killing three persons they had exceeded their right of private defence. He accepted the prosecution version of the occurrence as substantially true.

As regards possession, the Additional Sessions Judge''s finding is based on the evidence of the two chaukidars and the learned Assistant Government Advocate admitted that these were the most reliable witnesses and that it was difficult for him to challenge the finding on this point. This evidence, which I accept, shows that, whatever may have been the previous history of the dispute, the accused party were in effective possession at the time of the occurrence and had grown the khesari crop. The witnesses to the occurrence fall into two distinct groups, which have not been adequately distinguished by the learned Additional Sessions Judge. The first group consists of those persons who claimed that they were harvesting their khesari on the plot as well as one Raja Raut who says that he arrived during the occurrence. These witnesses have tried to make out that they were attacked while they were wholly unarmed and that they were quite ignorant as to how the persons were injured on the other side. They told a materially different story to the investigating Sub-Inspector and the learned Assistant Government Advocate did not rely on the evidence of these witnesses where it comes into conflict with that of the other group, which consists of the two chaukidars and one Raghunandan Mali who is mentioned as a witness in the first information. Prom the evidence of these witnesses it is, I think, possible to obtain a satisfactory account of what actually did occur. Raghunandan is a priest who lives at a village called Hathauri which is near Kalyanpur. He says that he was collecting fees from his jajmans in Kalyanpur on the morning of the day of occurrence, and he does not appear to have any motive for not telling the truth about what he saw. He says that he saw Siudhari and seven or eight other persons on the disputed plot armed with bhalas and gandasas, and he also saw Ramsagar sitting there.

This evidence agrees with the account given in the written statement of the accused, namely, that the trouble arose when Ramsagar went with some labourers to the field and was opposed by the other side. Raghunandan states that Ramsagar was complaining that he had been assaulted, but evidently this assault was not of a serious nature. Shortly afterwards Ajodhya and other persons came armed to the spot, and an altercation arose between the parties. Raghunandan asked them not to fight, but as they were persistent in their attitude he went away. I should observe that according to Raghunandan, Prahald was among the persons who arrived at the spot with Ajodhya, but from the evidence of the chaukidars it appears that Raghunandan must have been mistaken on this point. The evidence of the chaukidars is to the effect that they and Prahlad were sitting at the house of one Rijhan Singh of village Dhanukhi which adjoins Kalyanpur on the further side from the scene of the occurrence. Ramsagar came to the spot and told Prahlad that a mob had gone to the field, and Prahlad and Ramsagar left for the place, which is about one mile distant, being followed by the chaukidars. Shortly after their arrival the fight began which led to the death of three men on the prosecution side. Kantlal is chaukidar of the village where the field is situated, and Dhanesar is chaukidar of a village called Sahila Baijnath. These persons appear to be the most disinterested witnesses in the case, and the prosecution is mainly dependent on their evidence, and the question is whether on that evidence the accused can be adjudged to have been guilty.

Now the learned Additional Sessions Judge, while discussing the question of the right of private defence, concluded that the accused had no such right as they did n0ot take the help of a constable named Gaya Pande who is also a witness in the case. The evidence of the constable is that for some days past he had been deputed to the house of Rajhan Singh in connection with another dispute in which Rajhan Singh was concerned. At the time when Ramsagar arrived there he was not present as he had gone to answer the call of nature. Now the circumstances in which an aggrieved party is bound to have recourse to the public authorities instead of taking his own measures for the defence of his property are not always easy to determine; but at least it is lawful for a person which has seen an invasion of his rights to go to the spot and object. It is also lawful for such person, if the opposite party is armed, to take suitable weapons for his defence. I must hold that in such circumstances Prahlad and Ramsagar committed no offence in going to the field, and the chaukidars'' evidence goes to show that when they arrived both sides were about equal in number and were similarly armed. It was argued by the learned Assistant Government Advocate that the evidence of Raghunandan indicates that both parties had gone to the spot determined to fight, and it was therefore immaterial which party was the actual aggressor and neither party had the right of private defence. The evidence however indicates that the parties must have been present on the field for about a quarter of an hour before the chaukidars arrived from Dhanukhi, which is at a distance of about one mile. Up to this time the accused had been entirely in the right, but they had not resorted to the use of force and indeed seem to have shown some amount of forbearance. I do not therefore consider that any inference can be drawn against the accused from their conduct prior to the actual occurrence. It is therefore a vital issue in the case, which of the two sides was the first to commit a breach of the peace after the arrival of Prahlad and the chaukidars. On this point the evidence goes to show that the fight began with an attack on Prahlad himself. The first information and the examination-in-chief of Kantlal are not definite on this point, nor do I find that it arose in the examination of Dhanesar before the committing Magistrate. It is probable that the importance of this point had not been realized at that time, and Dhanesar has explained that he was not questioned about it in that Court. Kantlal however stated in his cross-examination in the Sessions Court that, although he himself was unable to say whether Prahlad was the first man to be injured, he did see Prahlad sitting injured in the field and then he saw the other persons receiving injuries. Dhanesar has stated that when Prahlad went to the field he found three persons assaulting him with lathis. Later on he states clearly that Prahlad and Ramsagar were first assaulted and then the fight went on both sides. It was suggested for the prosecution that this witness has been induced to change his evidence in favour of the accused, and it does appear that at one time his own son was made an accused in the case although he was snot sent up for trial. The difficulty is that if the evidence of the two chaukidars is not accepted on this point, there is no other evidence available to the prosecution, as the evidence of the interested witnesses must be adjudged to be wholly valueless on a point of this kind. Both the chaukidars have stated that they followed Prahlad to the spot at a distance of about 50 yards, and they were therefore in a position to see what took place, and in fact Kantlal claims that he actually intervened and took the weapons of some of the combatants. I therefore see no alternative to accepting the evidence of these witnesses, and find that the occurrence began with an assault on Prahlad. Up to this time the accused were in the right, and I must hold that when the assault began the prosecution party became unlawful assembly and the accused had a right of private defence.

The last question is whether or not the accused exceeded their right of private defence. Now the medical evidence shows that Prahlad received three incised wounds, all of which were described as grievous and might have been caused by bhalas or gandasas. His condition was so serious that his dying declaration was recorded. Ramsagar also received two similar wounds, one of which was grievous. On the other side grave injuries were inflicted and three persons were killed. In the case of Siaram there were six stab wounds, one of which perforated the pericardium and proved fatal. Siudhari had four stab wounds and died of shook resulting from these injuries. Ramdhiraj received one stab wound which was on the heart and was fatal. Arjun and Ramlakhan also received two injuries, each caused by a sharp weapon. The learned Additional Sessions Judge convicted the accused largely because he thought that the injured persons were not proved to have been actual assailants at the time when they received their injuries, and there was therefore no right of private defence as against those persons at that time. I am unable to support this view, as so long as the accused were confronted by an unlawful assembly they were entitled to deal with that assembly, as a whole, so long as it continued to be dangerous to them. It is true that the accused did inflict fatal injuries on members of that assembly, but they themselves had been dangerously attacked and were entitled to take all measures necessary for their own safety, and they could not be expected to judge too accurately what was the exact amount of force necessary for that purpose. The learned Additional Sessions Judge convicted some of the accused with the aid of Section 149 of the Code, on the finding that they had the intention to cause more hurt than was justified; but it is difficult to infer any such intention on the part of the persons who found themselves dangerously attacked. The defence is that the injuries were caused in the exercise of the right of private defence, and most of the injuries were punctured wounds on the front of the body such as might have been caused while the persons attacked were attempting to keep their assailants at bay.

According to Dhanesar, who is the only witness who has attempted to give a clear and detailed account of the occurrence, the three deceased persons were those who were actually assaulting Prahlad with spears; and Prahlad and his companions were entitled to take measures necessary to defeat that attack. Although ''these three persons were all mortally injured, the evidence is consistent with the view that they were injured in the exercise of the right of private defence; and, as I have said, the accused were in the right, and were entitled to take all measures necessary for defending themselves and their companions from an attack with dangerous weapons. As a result I am unable to hold that the accused either collectively or individually were guilty of exceeding their right of private defence, and I accordingly would reject the reference, allow the appeal and acquit the accused.

Agarwala, J.

I entirely agree. Upon the evidence of the chaukidars it is impossible to come to any other conclusion than that the accused were attacked while protesting against the prosecution party interfering with the khesari crop which belonged to the accused and had been grown by them. The fact that they had arms in their hands at the time of making their protest does not, in my view, make any difference, in the circumstances of the case. They had not attempted to use those arms until an attack was made on one of them by three of the prosecution party armed with bhalas. In these circumstances they were entitled to resist that attack with the weapons which they had with them and it is not possible to say that in doing so they exceeded the bounds of legitimate action. I therefore agree that the reference must be rejected, the appeal allowed and the convictions and sentences set aside.