Subedar Singh and Others vs Emperor

Agarwala, J.—The petitioners have been sentenced to various terms of imprisonment on a charge of rioting Petitioner I has been further convicted for causing grievous hurt. The case arose out of a dispute regarding land in Mauza Kubatpur. The dispute regarding this land has persisted for a considerable number of years. There has been litigation about it in the Civil Criminal and Revenue Courts; and in every instance the matter has been decided in favour of the petitioners. In the present case the prosecution alleged that at 8 a.m. on 2nd July 1932. the petitioners commenced to plough the plot in dispute and that they were armed with pharsas, bhalas and lathis and were prepared to fight if attacked.

It is said that the complainant protested against the ploughing of the field by the accused persons and that petitioner 1 then ordered his companions to beat the complainant''s party with the result that there was then a fight between the petitioners and the complainant''s party. The defence version of the occurrence was that the complainant''s party attacked the petitioners'' party while the latter was engaged in ploughing the land and the petitioners merely acted in self-defence On a review of the evidence relating to the question of possession, the lower appellate Court came to the finding that:

in the eye of the law the title and possession of Subedar Singh, petitioner 1, were perfect," but that "both parties went to the field armed with sharp cutting weapons, fully prepared for the fight, to take possession or retain possession of the land in dispute.

It is contended on behalf of the petitioners that in view of the finding that Subedar Singh was in possession the accused should have been acquitted. The learned Assistant Advocate however argues that the finding of the Court below amounts only to a finding that Subedar Singh was entitled to possession and not that he had actuAlly obtained possession. I am unable to construe the finding of the lower appellate Court, in this way. It seems clear to me that, the lower appellate Court has found as a fact that Subedar Singh was in possession of the disputed land.

It is next contended that even if he were in possession of the disputed land, he was not entitled to take an armed mob for the purpose of protecting that possession, and reliance was placed on a decision of this Court in Ghyasuddin Ahmad and Others Vs. Emperor, . That case, however, does not support the learned Assistant Government Advocate''s contention.

In that case the facts were that the prosecution alleged that the accused had taken part in an unlawful assembly the object of which was to prevent the complainant from reaping the latter''s tori crop. The prosecution failed to prove that the tori crop belonged, to the complainant. In these circumstances it was argued on behalf of the accused in that case that they were entitled to acquittal. A Division Bench of this Court held that the accused having been proved to have taken part in an assembly which had resorted to force and violence, were guilty of rioting unless the assembly acted in the exercise of the right of private defence.

It is clear from the observations at the bottom of p. 291 (of 13 P.L.T.) of the Report that the Court found as a fact that the accused had failed to establish their possession and that therefore they had failed to establish that they had the right of private defence. In the present case, as I have already observed, the finding is that the accused had established their possession and it appears to me that a party in possession of a property is entitled to resist by force an attack made on his property, provided there is no time to have recourse to the public authorities for protection. The learned Assistant Government Advocate contends that in the present case the petitioners had time to have recourse to the public authorities.

His argument is that as they went armed to the field they anticipated an attack and that, instead of going to the field they should have gone to the public authorities for protection.

I have been unable to find any evidence in the case to show that the accused had any reason to believe that an attack would be made on them while they were ploughing except the fact that they had a long course of litigation with the complainant''s party respecting the ownership of the disputed land which would naturally suggest to them the possibility of their being attacked; but that is quite a different matter from having any reason to anticipate that an attack would in fact be made as soon as the complainant''s party found that the petitioners were ploughing the land.

It is not disputed that on the morning of the day of occurrence the accused were peacefully ploughing when the complainant''s party arrived on the scene. If the petitioners at that point of time realised that an attack was to be made there was obviously no time to have recourse to the public authorities. There is no reason to suppose that the petitioners who were actually in possession at the time of the occurrence were the aggressors. The circumstances strongly suggest that the complainant''s party were the aggressors, and that the object of their attack was to prevent the disputed land from being ploughed. In these circumstances it appears to me that the accused had a right of private defence. Four men of the complainant''s party received injuries and three of the petitioners.

The injuries inflicted were mostly caused by sharp cutting instruments like pharsas and bhalas. It is clear, therefore, that the complainant''s party were armed with dangerous weapons and that in these circumstances the accused persons were entitled to defend themselves with similar weapons. It does not appear to me that the petitioners have inflicted on their opponents injuries of a more severe nature than were necessary for their own protection. I would, therefore, set aside the convictions of the petitioners and direct that they be acquitted and released from jail. The fines if paid will be refunded.

Scroope, J.

I agree.