Shyamsher Biswas vs State

Sudhamay Basu, J.—This is an appeal against an order of conviction dated January 18, 1965, in S.I. No. 1 of January 1969, passed by the Additional Judge, Murshidabad, by which the two Appellants Shyamsher Biswas and Naimuddin alias Naimuddin Shaikh were convicted u/s 304 pt. II/34, Indian Penal Code and sentenced to 4 years rigorous imprisonment.

The Court is informed that one of the Appellant Shyamsher Biswas had died during the pendency of this appeal. It may be recorded that the appeal has abated so far as the said Appellant Shyamsher Biswas is concerned.

It appears that Shyamsher Biswas, father of other Appellant Naimuddin, along with 12 others were tried by the learned Additional Sessions Judge. All of them were charged under Sections 302/149, 148 and 447, Indian Penal Code. Shyamsher Biswas and Naimuddin were also charged under Sections 302/34, Indian Penal Code and two accused Dasu and Dukhu were charged u/s 323, Indian Penal Code. The learned Judge convicted Shyamsher Biswas and Naimuddin of the offence u/s 304, pt. 11/34, Indian Penal Code, but acquitted the accused persons of all the other charges.

The prosecution case is that plot No. 309 of mouza Meghuan in the field of Shyamsher belong to Michu Shaikh, P.W. 4 who is the sister''s husband of the accused Shyamsher Biswas. P.W. 1 Abdul Rashid and one Sajjad Shaikh, since deceased, were the sons of said Michu Shaikh. Though Michu and others were the owner of the 16 as share in the said plot No. 309, half of them was recorded in the name of the accused Shyamsher Biswas and others in the recent settlement operation. A title suit was tiled by Michu''s lather against the accused Shyamsher Biswas and others regarding that hall portion of the plot. The suit was decreed in favour of the Plaintiff and confirmed in the appeal but a further appeal is pending in the High Court. It appears that on February 22, 1909, Purushottam Chatterjee J. passed an interim order in the appeal whereby on the claim of the Appellants that they were in possession, he directed them to deposit the costs of the Court below within three months upon which possession was to be maintained. The costs were deposited. Thereafter, on March 31, 1968, the accused Bhadu, Dukhu, Soraj and Imam were seen ploughing the half of the plot No. 309 by P.W. 1 Abdul Rashid and his brother Sajjad (since deceased) from their kholan at some distance. The two brothers went there and protested as to why they were ploughing their lands. Those who were ploughing then raised shouts--''you all come, they have come to resist''. At that time several accused persons, who were hiding at some distance, rushed to the spot and surrounded the two brothers. The accused persons were armed with phala, farsa and lathi. P.W. 1 Abdul Rashid also raised alarm when people began to come. The accused Naimuddin dealt a phala blow near the left shoulder joint of Sajjad who sat down when Shyamsher Biswas, father of Naimuddin, dealt another phala blow on the lower abdomen of Sajjad. P.W. 1, Abdul Rashid, tried to save his brother when he was, assaulted by other accused persons. He fell down. Seeing other men coming the accused persons lied away taking with them the bullocks and cows. Sajjad died on the spot. P.Ws. 2, 3 and others came there. P.W. 1 narrated the incident to them. P.W. 2, Habibur Rahaman, who was catching fish in a tank to the southwest of the disputed land and others claim to have seen the assault on Sajjad. The F.I.R. was lodged by P.W. 1, Abdul Rashid, at Shyamsher where the Officer-in-charge came in connection with some other duty. The F.I.R. was forwarded to Suti P.S. where the formal F.I.R. was drawn. The I.O. took up investigation and prepared a sketch map, held an inquest on the body and sent it for postmortem examination through constable Raghunandan Dubey. He also noticed marks of injuries on P.W. 1 and sent him for treatment to the hospital. He tried to arrest the accused persons but could not find them and prayed for warrant of arrest and proclamation. He sent blood-stained articles to the chemical examiner. Dr. S.R. Ghosh, P.W. 5, held post-mortem examination on April 1, 1969.

It would appear from the evidence of P.W. 5 Dr. S.R. Ghosh, who held post-mortem examination, that he found two injuries on the body of Sajjad, brought and identified by constable Raghunandan Dubey. The injuries were (1) one gaping wound about 5" x 1�" on the left side of the anterior surface of the neck just above the medial half of the left clavicle and placed obliquely dividing all the soft structures including division of the external carotid artery and its branches with a perforating injury on the apex of the left lung and (2) one stab wound about 1" on the lower abdomen just below the umbilicus dividing the whole thickness of the anterior abdominal wall through which omentum was protruding. Both the injuries, according to the doctor, may have been caused by sharp weapons, such as, phala. The injury No. 1 was fatal. The death was due to shock and haemorrhage as a result of injuries noted above which were antemortem and homicidal in nature. There is no doubt, therefore, that the deceased met a violent death as a result of injuries. The next question is who caused this injuries. P.W. 1 Abdul Rashid, son of Michu Shaikh, stated that the total area of plot No. 309 was 68 decimals. They were owners of the entire land, but half of the plot was recorded in the name of the accused Shyamsher and others in the recent settlement operation. His father brought a title suit against Shyamsher with regard to that half portion. It was decreed in favour of his father and confirmed in appeal. The other side preferred an appeal in the High Court. On Chaitra 17 in the morning the witness and Sajjad were processing arahar in their kholan. They noticed that the accused Bhadu, Dukhu, Sarab and Imam were ploughing their plot No. 309. They went there and protested as to why they were ploughing their land. Those who were ploughing shouted, "You come. Salas have come to resist". Other accused persons who were hiding in 2/3 rashi away rushed to the spot and surrounded them. They were armed with phala, farsa and lathis etc. Those included Shyamsher and Naimuddin. The witness raised alarm and people began to come. In the meantime, accused Naimuddin dealt a phala blow near the left shoulder joint of his brother. His brother caught hold of the phala and sat down. While so sitting he became inclined on his back and Shyamsher dealt another phala blow on the lower abdomen of his brother. That phala remained in the abdomen. The witness was also assaulted while trying to save his brother. Seeing men coming there the accused persons fled away taking with them bullocks and ploughs. Two phalas were left by the accused persons. His brother died instantaneously. Jalal, P.W. 3, Habib, P.W. 2, Kamaluddin and others came. He narrated the incident to them. In cross-examination the witness said that some of the accused were co-sharers of his brother in respect of his nana''s land. They cultivated half of plot No. 309 and the whole of plot No. 688 on that day. Those who assaulted fled away on seeing people coming there from north, south, east and west. They saw Sajjad in injured condition. They expressed their resentment over the incident. The witness denied that he and Sajjad were armed with phalas. He denied that he and Sajjad first attacked Sorab and Shyamsher. He denied that he trespassed on Shyamsher''s land. He did not notice any injury on Sorab and Shyamsher.

With regard to the evidence of this witness it was commented by Mr. Mukherjee, the learned Advocate appearing on behalf of the Appellant, that the injury described by the witness on the left shoulder joint was not corroborated by the doctor''s evidence who described the wound as one on the left side of the anterior surface of the neck. We are unable to agree with the description given by P.W. 1, who is a rustic, is not expected to be meticulously correct in terms of physiology or medical terminology. It was also commented that the fact that P.W. 1 did not notice any injury on Sorab and Shyamsher who were later on examined by a doctor shows that he was not reliable. That again, in our view, would be taking an extreme view. For a variety of reasons the witness may have missed to take note of the injuries. Mr. Mukherjee also commented that this witness spoke of four persons as ploughing the plot No. 309, but others did not mention these four. But for the absence of corroboration on this point we are not prepared to reject the evidence of this person whose evidence the learned trial Judge accepted. He had an opportunity to hear him in person and noticed his demeanour.

P.W. 2, Habildar Rahaman heard a hulla while he was catching fish in a tank to the south-west of the disputed land. He got up and saw Rashid and Sajjad were surrounded by 14 persons on the land of Michu. He proceeded towards the place and saw, while going there, the accused Shyamsher and Naimuddin giving phala blows on Sajjad who fell down. Rashid was also given blows and he fell down. The accused fled. Kamaluddin, Jalal and others came. Sajjad was already dead. Rashid narrated the incident to them. In course of evidence he said that blood fell on the spot where Sajjad was assaulted. He further said that he did not see Sorab trying to resist any blow. He denied that the land was all along possessed by the accused persons. He denied that he was a hired witness. He did not remember if he deposed in a case against Naimuddin. P.W. 3 Jalal saw from his kholan that Shyamsher and some other accused started ploughing the land of Michu. They went there when 12 or 14 persons surrounded P.W. 1 and Sajjad on their land. The witness proceeded to that place. He saw Naimuddin and Shyamsher giving phala blows on Sajjad who fell down. Two phalas were left there on the held. In cross-examination he said that there was fighting between the parties at the time of occurrence. He further said that Sajjad and Rashid obstructed the ploughing of the field by the accused. Shyamsher and Naimuddin said that if they came to assault them they would then resist them by assault. If Shyamsher and Naimuddin did not resist them, Sajjad and Rashid would not have been injured. Mr. Mukherjee rightly commented that this clearly showed that the accused clearly acted in exercise of the right of private defence of their property and persons. This portion of the evidence of P.W. 3 was naturally strongly relied upon by the Appellant. Mr. Mukherjee also commented that this witness like P.W. 2 merely said that Naimuddin and Shyamsher gave phala blows without giving any particulars or details His comment was that if the accused were surrounded by 14 persons it was not possible for these witnesses to see the incident. It is difficult to accept the criticism specially when there is no cross-examination that the vision of these witnesses were obstructed when they claim to have seen. It is true that the evidence of P.Ws. 2 and 3 did not mention who was the author of which blows, but they certainly corroborated the evidence of P.W. 1 who gave the detail. In the absence of any suggestion in cross-examination that they could not or did not see, we are unable to differ from the learned trial Judge who accepted the evidence of these witnesses P.W. 4 Michu Shaikh, father of P.W. 1 and the deceased, said that in the current settlement half of plot No. 309 had been wrongly recorded in the name of Shyamsher and others but he was in possession of the whole of it. Although they won in the lower Courts, an appeal was pending in the High Court. On the date of incident on hearing that his son had been murdered, he went to the field and saw Sajjad lying dead in his land. He was cross-examined with regard to plot No. 309 and suggestion was given that the High Court had, by its order, maintained the possession of the accused. P.W. 6, Dr. Janah who examined Abdul Rashid on March 31, 1968, at 8-45 p.m., found some swelling and bruises on the person of Rashid. P.W. 7, Homan Shaikh who was going to the river-side on the date of occurrence, said that he saw Sajjad and Rashid going near the land which was being ploughed by Shyamsher, Naimuddin and others. Naimuddin and Shyamsher dealt phala blows on Sajjad who fell down. Some also assaulted Rashid. In cross-examination he said that besides the persons named by him in his evidence-in-chief there were no other persons in that land. He did not remember if he said to the I.O. that he saw the occurrence. It was argued with some force by Mr. Mukherjee that other witnesses did not refer to this witness being present. His evidence is somewhat similar to P.Ws. 2 and 3 as regards the occurrence. P.W. 8 is the I.O. P.W. 9 Dr. Roy chowdhury examined Sorab and Shyamsher. The doctor found two incised wounds on the person of Shorab, one on the right forearm and the other on the right leg, besides of ecchymosed. The doctor also found incised wound on the person of Shyamsher on the right chest, 3" � 1 1/4" � 1/4". He said that injuries on Shyamsher was superficial. He could not say what particular weapon was used in inflicting the injuries. But the injury No. 1 on Shorab, according to him, was inflicted by sharp cutting weapon.

From the evidence noted above, specially from the evidence of P.W. 1 corroborated by P.Ws. 2 and 3, it is clear that the Appellant Naimuddin caused phala blow on the left side of the neck. The blow is a severe one aimed at a vital part of the body. In this regard, we accept the finding of the learned Sessions Judge.

We, also, find that some of the accused had received injuries. On the basis of the recent R.S. records and the order of injunction passed by the High Court the learned lower Court was correct in holding that the blows were dealt by the accused while exercising their right of private defence. The learned Judge has held:

There can be no reason to doubt that P.W. 1 and his brother had gone there to resist the possession of the accused party and then these two accused killed Sajjad with phalas.

We are inclined to accept this finding of the learned Judge.

Mr. Mukherjee appearing on behalf of the Appellant, of, course, argued that the prosecution has not adduced sufficient evidence and the onus being on them they have failed to discharge the same. We are unable to accept the validity of the said submission. We hold in agreement with the learned Judge of the lower Court, the prosecution has proved beyond reasonable doubt Section that the Appellant Naimuddin dealt blow on the left shoulder of the deceased Sajjad.

Mr. Mukherjee then argued that since the blow dealt by Naimuddin was in exercise of right of private defence his client was entitled to complete immunity and he should be acquitted. Since the nature of right of private defence has been discussed at some length at the Bar in course of which various cases have been cited, it becomes necessary to refer to some of the decisions of the Supreme Court in this regard.

Mr. Mukherjee relied on the decision of Mohar Roy v. The State of Bihar 69 (1) S.C.J. 1. In that case the trial Court as well as the High Court fully ignored the significance of the injuries found on the Appellants one of whom sustained as many as 13 injuries and another 14. The doctor''s evidence showed that injuries could not have been self-inflicted. Under circumstances, the Court held that the prosecution had n duty to explain all the injuries. But as we note later the Supreme Court in a later case, Gajendra Singh Vs. State of U.P., , on the circumstances of that case held that the failure of the prosecution to explain injuries on the person of the accused did not affect the prosecution case. Thus each case will depend on the facts and circumstances of its own, but the failure to explain injuries by the prosecution certainly is a factor meriting serious consideration by the Court. Mr. Mukherjee then relied on the case of Hari Dev Sharma Vs. State (Delhi Administration), . In that case the High Court having disbelieved an essential part of the prosecution case on which the other part was dependent was held to be wrong in upholding the conviction of the Appellant, but that again is a decision on the facts of that case. The Courts from time to time have invoked the metaphor of sifting the grain from the chaff. When the two are inextricably mixed up it is undoubtedly an exercise in futility to try to separate the grain of truth from the chaff of falsehood. If the two are not in separately mixed up it is the task of the Court to separate the grain from the chaff.

In the case of Jai Dev Vs. The State of Punjab, , the Supreme Court went into this question at some length. It recognises that--

Section 100 I.P.C. provides, inter alia, that the right of private-defence of the body extends under the restrictions mentioned in Section 99 to the voluntary causing of death if the offence which occasions the exercise of the right was an assault as may reasonably cause the apprehension that the grievous hurt will otherwise be the consequence of such assault.

Where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, an individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself of his property is entitled to use must not unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.

Dealing with the question

as to whether more force was used than was necessary or than was justified by the prevailing circumstances, the Supreme Court cautioned that it would be inappropriate to adopt tests of detached objectivity which could be so natural in a court-room, for instance, long after the incident had taken place.

The force used should not be ''weighed in a golden scale''. If a person finds that the threat to his person or property is immediate and real, he is entitled to exercise his right, but he must use necessary force for that purpose and he must stop using the force as soon as the threat has disappeared. The law of private defence does not require that the person assaulted or lacing apprehension of assault must run away for safety.

The aforesaid principle laid down by Gajendragadkar J. still holds good. In the case of Gottipulla Venkatasiva Subbrayanam and Others Vs. The State of Andhra Pradesh and Another, it was held on the facts of that case that the conduct on the part of the occupiers and supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of assault would have been killed had he not exercised the right of private defence. The use of gun by the accused against the members of the opposite faction was held to be justified. The Court held that in a situation like that it was not possible whose mental excitement could be better imagined than described to weigh the position in golden scales. The case of Gopal and Others Vs. The State of Rajasthan, was cited at the bar No specific principles were laid down in that case, but on the facts of that case the Supreme Court allowed the appeal and held that the injuries which were inflicted by the accused were caused in defence of their person when they had been attacked. The decision of Onkarnath Singh and Others Vs. The State of U.P., emphasised that right of private defence given by the Penal Code is essentially one of defence or self-protection and not a right of reprisal or punishment, ft is subject to the restrictions indicated in Section 99 which are as important as the right itself. One of them is that the harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence. Further,

the right is conterminous with the commencement and existence of a reasonable apprehension of danger to body from an attempt or threat to commit offence. It avails only against a danger, real, present and imminent.

It thus restates the principles earlier laid down by the Supreme Court in Jaideb v. The State of Punjab (Supra). The decision in State of U.P. Vs. Ram Swarup and Another, reiterates the same principle in different words, ft states that the right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage manages a situation wherein the right can be used as a shield to justify the act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for assault of private defence, the Penal Code has surely not devised the mechanism whereby an attack could be provoked as a pretence for killing. Again it says that it is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted. Undoubtedly a person in fear of his life is not expected to modulate in his defence step by step or tier by tier. But Section 99 provides in terms clear and categorical that the right in no case extends to the infliction of more harm than is necessary for the purpose of defence. The Supreme Court in the case of State of Gujarat Vs. Bai Fatima and Another, went into the question of plea of self-defence and held that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the materials on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In this regard the Court followed an earlier decision, Maniram v. Delhi Administration AIR 1968 S.C. 702. In that case not only the plea of private defence was not taken by the Respondents in their statement u/s 342, Code of Criminal Procedure, but no basis for that plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. The Supreme Court held that the burden of establishing that plea was not discharged in any manner by the Respondents even applying the test of preponderance of probabilities in favour of that plea.

When the judgment was about to be delivered; Mr. Mukherjee cited another recent case of the Supreme Court, Lakshmi Singh and Others Vs. State of Bihar, . In that case the Court held that non-examination of the injuries sustained by the accused is a very important circumstance from which the Court can draw inference ; (i) that the prosecution has suppressed the genesis of the occurrence and has not presented the true version ; (ii) that the witnesses who have denied the presence of the injuries are lying on a most material point and therefore, their evidence is unreliable ; (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable, but the same Court hastened to add that, as held in the case of State of Gujarat v. Bai Fatima (Supra), there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. The case of Gajendra Singh v. The State of U.P. (Supra) followed the case of Bai Fatima referred to above and held, on the circumstances of the case, that failure of the prosecution to explain injuries on the person of the accused did not affect the prosecution case. The principles inundated in the case of Lakshmi Singh (Supra) is unexceptionable. But on the facts of this case there is no ambiguity about the genesis and origin of the occurrence. As to the veracity of the witnesses we have already discussed the same. Moreover, the explanation of the defence that the injuries were explained in course of exercising the right of self-defence has also been accepted by the Court. The injuries sustained by the accused are not very serious. The evidence adduced by the prosecution seemed to be reasonably clear and cogent and was found acceptable by the Court below. On the whole, the facts in the case of Lakshmi Singh were quite different.

The principles discussed above as to the right of private defence make it clear that although the Court will not go into the question of excess by adopting a test of detached objectivity the right of private defence itself is subject to certain basis of restrictions one of which is that the harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence. The severe blow inflicted on the deceased in his vital part, in our view, was disproportionate to the injury which was to be averted. In our view, the Appellant in this case exceeded the legitimate purpose of the exercise of right of private defence and indulged in excesses. In our view, to concede to the Appellant the right to strike in the manner, he did, would be to allow him to abuse his right of private defence as a shield to justify a violence which was disproportionate to the apprehended injury that was to be averted.

The result is that we uphold the conviction of the Appellant Naimuddin u/s 304, pt. 11/34, Indian Penal Code. The sentence passed by the learned Judge also is confirmed.

The appeal is dismissed. The appeal has abated so far as Shyamsher Biswas is concerned. Let the other Appellant Naimuddin Biswas surrender to his bail bond.

Chanda, J.

I agree.