P L D 1957 Dacca 281 (PLP)

BADIUZZAMAN, J.‑--These ten appellants, namely, Ganga Charan Das, Pyari Mohan Das, Binode Behari alias Binode Behari Das, Lai ‑Behari alias Lai Behari Das, son of Banka Chandra Das, Lai Behari alias Lai Behari Das, son of Gobinda Mohan Das, Chandra Kishore alias Chandra Kishore Das, Durja alias Durjodhan Das, Kunja Behari alias Kunja Mohan, Prakash alias Prakash Chandra Das and Sashi Mohan alias Sashi Mohan Das were tried by Mr. Abdul Aziz, Additional Sessions Judge, Mymensingh, with the aid of three Assessors on various charges. The appellants Ganga Charan Das and Pyari Mohan Das stood charged under section 302/148, the appellant Sashi Mohan stood charged under section 324/148 and the remaining appellants, namely, Binode, Lai Behari, son of Banka Charan Das, another Lai Behari, son of Gobinda Mohan Das, Chandra Kishore, Durjodhan, Kunja Behari and Parkash stood charged only under section

147. All the Assessors unanimously found Ganga Chardn and Pyari Mohan guilty under section 302/148, Sashi Mohan guilty under section 324/148 and the remaining appellants under section

147. The Judge in agreement with the Assessors convicted Ganga Charan and Pyari Mohan under section 302/148, Sashi under section 324/148 and the remaining appellants under section 147, Ganga Charan and Pyari were sentenced to transportation for life under section 302, Sashi was sentenced to rigorous imprisonment for one year under section 324 and the remaining seven appellants were sentenced to rigorous imprisonment for six months under section

147. No separate sentence was imposed on Ganga Charan, Pyari Mohan and Sashi Mohan under section

148. Prosecution case may briefly be put thus: On Friday, the 8th of May, 1953, the complainant Abdul Karim was reaping Kaon on his land in Khamarer Bandh and the deceased Shamser and Rezzak were reaping Kaon in another plot in the same Bandh. As noon, these appellants and many others about 50 in number, came in boats to fish in the Sakunmari river flowing by the south of the Khamarer Bandh. They had with them not only fishing nets, but arms too. The deceased Shamser who was cutting Kaon near the bank of the river Sakunmari asked the fishermen not to fish in the river, whereupon they rushed towards Shamser and Rezzak with arms. Being panicky, Shamser and Rezzak both began to flee towards the west. The fisherman gave them chase and succeeded in overtaking them before they could run away to a place of safety. The appellant Pyari Mohan dealt a blow on the chest of Shamser with a halanga (a bamboo lance) while the appellant Lai Behari, son of Govinda struck him on the head with a lathi. Shamser fell down on a Patit land. Even then he was not spared but was mercilessly assaulted by the other accused. The appellant Ganga Charan dealt a blow on the back of Rezzak with a halanga with the result that the victim dropped down on the ground. This was followed by further assaults on the chest by Binode Behari and others with daos and lathis. When P. W. 3 Jonab Ali who was weeding his land in the same Bandh hastened to the spot to take rescue of Rezzak and Shamser he was dealt a blow on the arm by the appellant Sashi with a halanga. Thus injured Jonab Ali ran away from the field. The accused persons then got into their boats and left the place. Abdul Karim, Abdul Hashem, Monnaf, Jalfu and others who were working in different plots of land on the same Bandh, came there and saw Shamser and Rezzak lying dead with bleeding injuries on their persons. On the same day at 4‑45 p.m. Abdul Karim lodged a report with Kazi Sahabuddin, Officer‑in‑charge of Nikli Police Station who after recording the first information hastened to the place of occurrence at 10‑30 p.m. and found the dead bodies lying in the Khamarer Bandh. On the following day after holding inquest on the dead bodies he sent them to Kishoreganj Morgue where post‑mortem exami nations were held by Dr. M. I. Saha, Sub‑divisional Medical Officer, Kishoreganj, on 10th May 1953. On the dead body of Abdur Rezzak the Doctor found three injuries of which one was a penetrating cut wound 1 i" x i" at left thoracic cavity obliquely placed just below on the interior angle of the left scapula, two other injuries on other parts of the body, and on the dead body of Shamser he found one penetrating cut wound at the left pectoral region just to the right of and above the left nipple and five other cut injuries on other parts of his body. In his opinion Rezzak's death was due to the perforation of the thoracic cavity of the left lung and Shamser's death was due to perforation of the heart and the left lung. The Police after investigation submitted charge sheet against all the appellants. The defence of the appellants Pyari Mohan Prakash, Durjodhan and Lai Behari, son of Govinda was that they did not go to fish that day nor did they take part in the alleged assault. The defence of the other appellants was: On the date of occurrence they were catching fish in the river Kaya with the aid of a Berjals since morning. At about midday they moored their boats at the Khamarer Bandh and were drawing their nets and putting the fish in a small boat where the accused persons about 60 or 65 in number, armed with koches, ek‑katias, halanga, lathis and daos came up and demanded a share of the fish caught. The fishermen having refused to give any share, the villagers launched an attack on them and simultaneously began to rob them of their fish by cutting the nets. The deceased Shamser who was near the water edge dealt a blow with a koch on the right leg of Raicharan. The complainant Abdul Karim dealt a blow to Kunja Mohan with an ek‑katia which pierced through one of his hands. This was followed by another blow by another villager on one of the arms of Kunja and with an ek‑katia which remained struck there. Then the villagers started hurling halangas on the fishermen and one of these halangas pierced the hand of Chandra Kishore. One of the villagers Manu by name struck Ganga Charan with a lathi. The accused persons who bad no weapons with them, picked up the halangas thrown by the villagers and used them in self‑defence. Soon after, there was a cry of murder of two men and the villagers clustered round the dead bodies and the fishermen left the place in their boats with their nets and on the following day, that is on the 9th of May Ganga Charan lodged a report with the Officer‑in‑charge of Kishoreganj Police Station which was later sent to the Officer‑in‑charge of Nikli Police Station. A charge‑sheet was submitted by the same Officer, namely, Kazi Sahabuddin against Abdul Karim and others on 11th July 1953. The learned Judge after a review of the materials furnished by the parties convicted and sentenced the appellants as stated above. Mr. D. C. Roy has appeared before us for the appellants while Mr. Salahuddin Ahmad, Deputy Legal Remembrancer has appeared for the Crown. The first point urged by Mr. Roy is that the learned Judge having proceeded to decide the case on the wrong assumption that the appellants went to fish in the river Kaya on the date of occurrence for the first time, the conviction and sentence must fail on account of that error. The second point urged is that the learned Judge ought to have accepted the defence version that the complainant party were the aggressors and the appellants were protected by the right of private defence. The third point urged by Mr. Roy touches ground No.

13. The ground reads: "For that P. W. 9 Abdul Hashem, brother of P. W. 1 having stated in cross‑examination `I went to my field at about

12. Karim (P. W. 1) went to his field at about 11 a.m. after his meal which exactly fits in with defence version and discredits the prosecution story of cutting Kaon from the morning and the post‑mortem report on the dead bodes of Abdul Rezzak and Shamser having disclosed that there was `partially digested rice in the stomach' of the two deceased, the learned Judge should have held that the complainant party went to the place of occurrence sometime after midday meal and not 8 a.m. ‑as stated by P. W. 1 in his cross‑examination." The fourth point touches ground No.

10. The ground reads: "For that the learned Judge's criticism of the evidence of D. Ws. 4 and 5 on the ground that they did not intervene to stop the quarrel `although both of them saw Muslims coming dangerously armed in a fighting mood', and the criticism that they were chance witnesses, is not sound reason at all for discrediting them." The fifth point urged by Mr. Roy is that as the facts and circumstances stand, the learned Judge ought to have held that the common object as set out in the charge, namely, to assault Shamser and Rezzak was not made out and acquitted the appellants Nos. 5‑10 of the offences under sections 147 and

148. The sixth point urged touches ground No.

2. The ground reads: "For that the learned Judge erred in law in refusing to admit in evidence the F.

1. R. lodged by the appellant No. 1 Ganga Charan against most of the P. Ws. by holding that it is hit by section 162, Criminal P. C. and by overruling the defence contention that it was not a statement made in the course of investigation and as an admission it is also admissible in favour of the person making it and such error has seriously prejudiced the appellants particularly in view of the plea of right of private defence." Before entering into the discussion of the points urged by Mr. Roy we feel we should give here a brief topography of the place of occurrence and other relevant matters for the purpose of enabling those interested in the decision of the case to follow it properly. The occurrence took place in Khamarer Bandh lying between the river Sakunmarr and Kaya which are tributaries of a big river known as Ghorautri which runs east to west by the south of the aforesaid Bandh. Both the tributaries flow towards the north‑one, namely, Sakunmari by the east of Khamarer Bandh and the other, namely, Kaya by the west of that Bandh. The Kaya river fishery is owned by Government, Babu Mea, Aswini Kumar Chowdhury and others. Government being owner of 9 as share and Babu Mea and others being owners of the remaining 6 as share. In 1952 the Kayemer Bowli Society of which the appellants are members applied to the Mymensingh District Fishermen Society at Kuliarchar for settlement of the entire 9 . as share but they were granted settlement only in respect of half of that share and the remaining half was settled with the complainant Abdul Karim, the deceased Shamser and others. Shortly after these settlements two cases under section 107, Criminal P. C. one by the complainant against the present accused and others by the latter against the former were filed but the Magistrate dismissed both the cases with the remark that the parties being co‑sharers in respect of the Kaya river fishery, there was hardly any scope for an order under section

107. This occurrence took place about two months after the disposal of those two proceedings. With this background let us proceed to examine the points urged by Mr. Roy. Of the six points raised the point No. 2 is of vital importance and if it stands the critical test, the appellants will be able to shake off the shackles reluctantly worn by them under the order of the trial Court but if the test collapses, the shackles will remain where they are. The case sought to be made out at the trial is that on Friday, the 25th Baisakh at noon when the complainant Abdul Karim and the deceased Shamser and Rezzak were reaping Kaon in the Khamarer Bandh, the appellants and many others, about 50 in number came to fish in the Sakunmari river, that upon Shamser's lodging protest the fishermen got infuriated and at once formed themselves into an unlawful assembly and attacked him and Rezzak with arms‑that overawed by the menacing attitude of the fishermen Shamser and Rezzak began to flee towards the west and that the fishermen chased and overtook them on a patit land where they were done to death. The fishermen denied having formed themselves into an unlawful assembly but at the same time sought to maintain that they went to Chatircbar in the morning in several boats to fish in the river Kaya with the help of Berjals, that they caught fish till noon when about 60/65 men including Karim, Shamser and Rezzak armed with deadly weapons came from the village Chatircbar and demanded a share of the fish, that the fishermen having refused to give any share, the complainant party launched an attack on them and robbed them of their fish and net, and that whatever the appellants did, they did in defence of their persons and property. Needless to mention, if on examination of the materials furnished by the parties it turns out that the appellants were aggressors and formed themselves into an unlawful assembly with the object of assaulting Shamser and Rezzak, the appeal must fail. If on the other hand it turns out that the complainant Karim and the deceased Shamser, Rezzak and others were aggressors and went to the Kaya river to take away by force the fish caught by the fishermen and that the appellants did not do anything except what was necessary to defend their persons and property, the appeal must succeed and the conviction and sentence must be set aside. Truly speaking, prosecution case on the face of it appears to be a laboured one and sounds so insipid and unconvincing that the more one reads it side by side with the spontaneous outburst of the eye witnesses on the defence side along with the other circum stances on the record he will realize which is the true version. There was a quaint attempt on the part of the prosecution to gloss over the reality as to time, place and manner of occurrence with the aid of half a dozen selected persons, namely, Abdul Karim P. W. 1, Jonab Ali P. W.3, Jalfu P. W. 4, Jagu alias Jonab Ali P. W. 5, Abu Mannaf P. W. 8 and Abdul Hashem P. W. 9 of whom P. W. .1 Abdul Karim is vitally interested in the success of the prosecution and the remaining 5 witnesses are either his brother or nephew. Independent neighbour witnesses were there but they have not been examined on the plea that they all have been gained over. To our mind reason for non‑examination of these witnesses lies somewhere else. This is not a figment of imagination but the materials for such inference have been furnished by the complainant himself. At the trial he did not stick to the case in the First Information Report but made a complete departure from it on some vital points evidently for his own as well as for his party's security. It seems it was on account of this departure from the real case those neighbours revolted and refused to support a mutilated theory. The witnesses who pledged an oath of allegiance again could not maintain consistency but made different statements at different times on the same point. The Judge strove hard to reconcile the differences but he acquitted himself very badly. In the F. I. R. P. W. 1 Karim specifically stated that the fishermen came to fish in the river Kaya in the morning of the date of occurrence but at the trial this was completely given a go‑by and altogether a new theory was propounded, the case propounded being that the fishermen came to fish forcibly in the river Sakunmari and that again at noon and not in the morning. This complete somersault is not without significance. The complainant after the lodging of the F. I. R got notice of the counter case and felt that if he struck to the case as sought to be made out in the First Information Report, he would be virtually supporting the defence theory that the trouble was over the robbing of fish caught by the fishermen. This troubled his mind and he went back upon what he stated in the F. I. R. The learned Judge, however, laboured bard to explain away this inconsistency on the part of the complainant and his explanation is as follows: "The man (meaning the complainant Karim) categorically stated that it was at mid‑day when the accused persons came to fish. In the ejahar this man stated that the accused persons came to fish in the Kaya river in the morning. This line in the ejahar was utilized by the defence to show that the fishermen actually caught fish. The sentence does not lend itself to such an interpretation since the complainant said that these people came to catch fish. The accused persons live about 5 miles away. The complainant might mean that they came away from home to catch fish in the morning. Anyway, all the prosecution witnesses were unanimous on the point that the accused persons did not catch fish. Necessarily the question of the Muslims coming to snatch away fish as suggested by the defence did not get any support from the evidence of P. W. I." The most out standing feature of the explanation is that the Judge realized that if the time and place of the occurrence as given in the F. I. R. be accepted, it would be hardly possible to throw away the defence theory, yet he endeavoured hard to drag the prosecution out of the quagmire by inventing an explanation which on the face of it appears to be too shallow to appeal to a man of ordinary prudence. The First Information Report is transparently clear regarding the time of arrival of the fishermen at the Kaya river but the Judge would say that in the F. I. R. the complainant gave morning as the time when the fishermen started from their houses. Next comes P. W. 3 Jonab Ali. At the trial this witness posed himself to be depositary of all informations regarding occurrence but his true colour was exposed by the Investigating Officer. To the Investigating Officer he did not claim to have seen the assaults on Shamser and Rezzak but at the trial he with ease supported the prosecution case in all material particulars. The Judge could not defend this witness and had to abandon his evidence with the following remarks: "Anyway, the statement made by Jonab Ali before the Sub‑Inspector clearly militates against this statement in Court and also militates against the state of things given by other P. Ws. Of course, the statement before the Sub‑Inspector that Jonah Ali did not see the assault on Shamser and Rezzak cannot be used substantively. It might at best annihilate the veracity of this witness. Truly, it is an intriguing position." Next comes P. W. 4 Jalfu. This witness appears to be equally guilty of prevarication. He at the trial says that the fight started when he was weeding his land in Khamarer Bandh but to the Investigating Officer he said that the trouble began when he was busy in reaping Kaon. Then again to the Investigating Officer he said that he saw the fishermen fishing in the river Kaya but at the trial he says that he saw them fishing in the river Sakunmari. The credit of this witness was successfully impeached but the Judge refused to reject what he said at the trial with the following observation: "Anyway, these contradictions hardly affect the credit of this witness who came with a straightforward account of the incident in his evidence". Next comes P. W. 5 Jagu. The appellants' case is that they used to fish in the river Kaya both before and after the settlement. This again is clearly admitted by P. W. 3 Jonab Ali, but Jagu would not admit it. According to him the fishermen of Dighirpar did never fish in the river Kaya. This witness appears to be more fanatic in his effort to support the case of the complainant but yet the Judge would say that there was nothing against this witness except that he was nephew of the complainant Karim. Next comes P. W. 8 Abdul Mannaf, brother of com plainant Abdul Karim. He made contradictory statements at different stages. Yet the Judge would give him the mantle of a truthful man. To the Investigating Officer who clearly said that in the course of altercation Shamser got into the boat of the fishermen. This is a fatal statement and the Judge as we find from the judgment fully realized it. Accordingly, he made strenuous effort to explain away this drawback but what he said in this connection does not appeal to us in the least. Next comes the evidence of P. W. 9 Abdul Hashem, another brother of Abdul Karim. This witness at the trial gave the name of all the appellants but to the Investi gating Officer he was unable to give the name of any of the appellants excepting two. His anxiety to entangle the whole lot of the appellants at the trial undoubtedly diminishes his credit but the learned Judge did not take notice of this aspect and took his evidence into consideration in deciding the question of guilt of the appellants. Apart from the discrepancies referred to above there are other factors in the record, which, if closely scrutinized, will knock the prosecution case off its base. The fishery right in the river Sakunmari exclusively belongs to Karim, and some other people of Chatirchar. The fishermen of Dighirpar have no interest in the Sakunmari fishery nor do they claim any. Yet the prosecution would say that the fishermen came to fish in the river Sakunmari by force. This mischievous attempt on the part of .the complainant to shift the venue of battle from the river Kaya to river Sakunmari is not without significance. They knew in their heart of hearts that a true representation of the facts might land them into trouble and it was possibly for this reason that they made frantic effort to establish that the fight was over the fishing in the river Sakunmari. But their attempt has been foiled by one of the prosecution witnesses, namely, Jalfu. The fishermen have no quarrel with Karim and others over Sakunmari. Whatever little trouble of which we get reference was over the fishing in the river Kaya. It is hardly believable that the fishermen of different locality, 5 miles away from Chatirchar would venture to come to enforce their right in a property in which they have no right nor do they claim any. Then again there was another crafty attempt on the part of the complainant to alter the time of occurrence. In the F. I. R., as already pointed out, it is specifically mentioned that the fishermen came to fish in the morning but at the trial possibly under the instruction of wily brain the complainant abandoned the real theory and bolster up a new theory that the fishermen came at noon and that before they could commence fishing protest was lodged. The foundation for this new theory is shaken by the Investigating Officer who said that P. W. 4 Jalfu had stated to him that the fishermen started fishing in the morning and at 10 a. m. they were waiting with boats on the south bank of the river Kaya. The motive behind this new theory will not be far to seek. It must have been invented to render the theory of robbing of fish nugatory. The complainant and his party have not either boat or net. They themselves do never catch fish. They say they get the fish of the river caught by other people. But none of these persons have been examined. From a careful survey of sequence of events one will feel convinced that the complainant and his party attempted to enjoy the fruits of the labour of the fishermen to which the fishermen resisted and the trouble set in. By no stretch of imagination it can be conceived that the mere verbal protest by Shamser would bring in its trail a sanguinary battle. The theory of chase by the fishermen also sounds highly discordant for the following reasons. The fishermen are residents of a village far away from Khamarer Bandh and the occurrence took place almost in the heart of a village in which the complainant and his party live. It can hardly be believed that the persons who are strangers to the locality inhabited predominantly by Muhammadans should venture to run the risk of chasing the Musalmans with intent to kill them. The injury on the chest of Shamser also negatives the theory of chase. The learned D. L. R. takes his stand on the injuries on the person of Rezzak. It is true that the Doctor found an injury on the back of Rezzak but when the assembly was big, an injury from behind was not at all unlikely. It will be therefore unsafe to treat this back injury as criterion for accepting the theory of chase specially when the Doctor opined that such .injury was possible from aside too. The Investigating Officer seized some bundles of Kaon from the field where Shamser and others were said to have been reaping Kaon. The learned Judge has laid much stress on it and observed that this seizure of bundles of Kaon lends support to the prosecution theoy that Karim, Shamser and Rezzak came to Khamarer Bandh in the morning and not at noon but this theoy has been demolished by one of the prosecution witnesses, namely, P. W. 9 Abdul Hashem who in cross examination has said "I went to my field at about

12. Karim (P. W. 1) went to his field at about 11 a. m. after his meal". The Doctor who held post‑mortem examination again found partially digested rice in the stomachs of both the deceased. If Karim, Shamser and Rezzak went to the field in the morning at about 8 a. m. the Doctor would not have found any partially digested rice, occurrence having taken place a little after 12 a.m. Besides, there is no clear cut evidence on the record to show that these particular bundles of Kaon were actually reaped by Karim or by the deceased on the date of occurrence. Let us now turn to the defence. In support of their defence the appellants in all have examined as many as five witnesses, namely, Abdur Rezzak Chowdhury D. W. 1, Prabhat Kumar Chakravarty D. W. 2, Jogesh Chandra Das D. W. 3, Baikunta Nath Das D. W. 4, Dhanan Joy Das D. W. 5, of whom D. W. 1 is the Sub‑Inspector of Police who recorded the F. I. R. lodged at Kishoreganj P. S. by the appellant Ganga Charan on 9th May 1952, P. W. 2 is a Medical Practitioner at Kishoreganj, P. W. 3 is one of the persons who escorted the injured persons on the side of the defence to Kishoreganj and P. Ws. 4 and 5 are the witnesses to the occurrence. The last mentioned two witnesses are fish dealers. They move about in search of fish and on the morning of the date of occurrence they weqt to Kaya river to purchase fish. D. W. 4 has given graphic description of the occurrence and his evidence runs as follows: "I purchase fish from fishermen, catching fish and sell fish in the market and also in the ghat, I know these accused persons who catch fish by means of berjal. They fish in the river Kaya. I purchase fish from these men. I have been seeing these people catching fish in the river Kaya since my childhood. I go to the Kaya river in order to purchase fish from these people. On the 25th Baisakh last, I went to the Kaya river to purchase fish. 1 went by foot at about I pahar of the day. I saw the accused Ganga Charan, Chandra Kishor, Kunja Mohan, Raicharan and others numbering about 12 casting their nets from the Ghorautra to the Khamarer tek, which is also known as Dayer tek. I saw them mooring the two boats in the Khamarer tek. The people began to draw the nets. They threw a net from two boats and the net would be about 2,000 or 3,000 cubits long. The two boats were 400 or 500 cubits apart from each other. They began to draw the nets to the shore. The boats came closer. They began to draw the net from the water edge. They stood on the ground and began to draw nets. It was a little past mid‑day when the net was completely drawn to the shore. They began to catch fish and put the fish into a small boat. At that time about 60 or 65 men were coming from Chatirchar with konch, ek‑katia, halanga, lathis and daos. They came to the fishermen near the water‑edge and said they would not spare the fishermen if they did not yield them a share of the fish. Fishermen replied that they would not give up any share of the fish they caught and said that those people could catch fish in the river. The complainant Karim at that moment saw that the fishermen would not willingly give any fish. He asked his companions to beat the fishermen and snatch away the fish and net. Shamser Ali who was near the water‑edge on the ground dealt a blow with a konch on the right leg of Raichand. The konch had 7 or 8 shalas. I saw some people taking away the fish from the small boat and some taking the fish by cutting net. Abdul Karim dealt a blow on Kunja Mohan on the hand with an ek‑katia. The ek‑katia pierced through his hand. Kunja Mohan was struck as he seized hold of a fish which was being taken by the complainant's men. Another man of Karim's party struck Kunja Mohan on the .arm with an ek‑katia, It remained stricking to his hand. The Muslims began throwing a shower of halangas at the fishermen. One Manu struck Ganga Charan with a lathi. Another halanga pierced the hand of Chandra Kishore, The fishermen picked up the halangas thrown by the Muslims and began to hurl the halangas at the Muslims. I heard shouts that two men had fallen dead. With this cry the fight stopped the Muslims stood round the place where the two men fell dead. The fishermen went away with a portion of the nets. D. W. 5 also has deposed to the same effect. Whatever they said has a touch of naturalness and spontaneity but the learned Judge, however, refused to act upon their evidence on the ground that both of them were chance witnesses. He further remarked that he could not under stand how these witnesses could go there when they did not know that the fishermen of the Dighirpar would be fishing in the river Kaya on that day. It is true that these witnesses went to the river Kaya on the date of occurrence without making inquiry whether fish would be caught on that particular day but it will be unsafe to throw away the defence version on that ground, when D. W. 4 has furnished an explanation on this score. His evidence indicates that fishing in the river Kaya was an usual affair with the fishermen of Dighirpar. That being so, it is not at all unlikely that the fish dealers whose normal business is to move about in search of fish would make a dash towards Kaya and the adjoining river without making any enquiry as to whether the fishermen would be fishing that day. The learned D. L. R. has commented on the delay made by the accused in starting a case against the complainant. The occurrence took place on the 8th May, and the F. I. R. in the counter case was lodged on the following day at the Kishoreganj Police Station. Kishoreganj being 20 miles away from Nikli P. S., one day's delay was not at all unnatural. Nikli being only 6 miles from the Police Station, it may be contended that if the fishermen were not the aggressors, why they should feel shy to rush to Nikli P. S. within the jurisdiction of which the occurrence took place but a reply to this contention will not be far to seek. There being two murders on the side of the complainant party, the fishermen must have thought that the complainant party would be rushing to the nearest P. S. to lodge an F. I. R. and any attempt on their part to lodge F. I. R. at Nikli P. S. would be courting arrest forthwith. It was on account of this bogy of arrest that they selected Kishoreganj in preference to Nikli P. S. In this connection it is to be noted that the appellants wanted to put in the F. I. R. lodged by them at Kishoreganj P. S. but the learned Judge without recording any reason arbitrarily refused to admit it into evidence though there was no legal bar. On a review of the materials furnished by the parties and having regard to the circumstances and pro` abilities we are inclined to hold that the complainant party was the aggressors and that the common object as set out in the charge under section 147 has no leg to stand upon and that whatever the appellant did they did in defence of their person and property. Now the question that calls for consideration is whether the appellants exceeded the right of private defence. Our answer will be in the negative. The prosecution seeks to maintain that the complainant and his party were unarmed but this is belied by the injuries on the persons of the two of the fishermen, namely, Kunja Mohan Das and Raicharan Das. They were first examined by D. W. 2 Probhat Chandra Chakravarty and then by Dr. M.

1. Saha, Sub‑divisional Medical Officer at Kishoreganj. Dr. Saha found on the person of Kunja Mohan Das the following injuries: (1) One prong of a jat was found sticking to left hand. It pierced the dorsum of the hand and the wrist and came out on the anterior side. The entrance wound was " x " and the exit wound was " x " (sic); (2) One prong of a juti was found embedded on the border of the left ulna at its lower end, making an external wound " x (sic)" with depth of 3 " directed obliquely upwards towards radius beneath the skin; (3) one penetrating wound 1/3" x " x " just on the left side of the nose; (4) One ecchymosis 4" x " behind the right side of the thorax (back). According to him the injury No. 3 was caused with a pointed weapon such as halanga and the injury N. 4 with a lathi, Kunja was detained in the Hospital till 23rd May 1953. Thereafter he was removed to the Kishoreganj Sub‑Jail where he was treated in Hospital by this Doctor till 3rd June 1953. The left forearm was partially immobile even on 3rd June 1953. On the person of Raicharan he found the following injuries: (1) One penetrating wound on the right leg 1/3" in diameter at the outer border at the right sculf muscle. It was 4" deep transversely directed to the medical border. (2) The tip at the right middle finger was swollen. In the opinion of the Doctor the injury No. 1 was probably caused by ek‑katia or halanga. This fits in with the evidence of the two eye‑witnesses on the defence side. As the evidence stands, there cannot be any manner of doubt that the complainant and his men armed with deadly weapons launched an attack. The appellants, therefore, could reasonably apprehend either death or grievous hurt. Section 100 of the P. P. C. reads: "The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: "First‑such an assault as may reasonably cause the apprehension that death will otherwise be the consequence 41 of such assault; "Secondly‑such an assault as may reasonably cause apprehension that grievous hurt will otherwise be the consequence of such assault." We shall first deal with the question of reasonable apprehension of death. It is well settled that whether the apprehension was reasonable or not is a question of face. The weapon used, the manner of using it, the nature of assault and other surrounding circumstances will be taken into consideration is determining the question of reasonable apprehension. A man acting under an apprehension of death cannot be expected to judge too precisely the force of his own blow. He is not bound to modulate his defence step by step according to the attack before there is reason to believe that the attack is over; he is not obliged to retreat but he may continue to resist till he finds himself out of danger and if in a conflict between them he happens to kill A his adversary, such killing is justifiable. Where the assaua has once assumed a dangerous form, every allowance should be made for one, who, with the instinct of self‑preservation strong upon him, pursues his defence a little further than to a perfectly cool bystander would seem absolutely necessary, The question in such cases will be not whether there was an actually continuing danger but whether there was reasonable apprehension of such danger. The law always makes just allowance for the sentiments of a person placed in a situation of peril who has no time to think. Next comes the question of reasonable apprehension of grievous hurt. If a person has genuine apprehension that his adversary is going to attack him and reasonably believes that the attack will ressult in a grievous hurt he can go to the length of causing the letter's death in the exercise of the right of private defence even though the latter has not inflicted any blow on him. A subsequent blow will also be justified on the same ground if there is every probability that the latter, if not altogether disabled, will try to hit the former. Here in the present case there was not only genuine apprehension of grievous hurt and death but actually one of the appellants, namely, Kunja Behari actually received grievous injury which detained him in the hospital for over 20 days. The attacks on Kunja and Raicharan as we find from evidence of D. Ws. 4 and S were launched by Shamser, Abdul Karim and others. Their evidence further indicates that besides Kunja and R aicharan two other persons, namely, Ganga Charan and Chandra Kishore were also injured. They have further proved that the complainant party did not only cause violence to some of the appellants but even went to the extent of robbing them of the fish and nets. On this evidence they are entitled to invoke even the protection of clause (1) of section 103 of the Code. The section reads: "The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or of any harm to the wrong‑doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:‑ "First‑-Robbery, secondly‑-, thirdly-‑, fourthly-‑." It is well settled that robbery by violence may be resisted by violence sufficient to overcome the force employed by the attacker and if in the course of such resistance death is caused, it may be justified if the right of self defence was exercised reasonably and properly but the measure of self defence must always be proportionate to the quantum of force used by the attacker and which it is necessary to repeal. Here in the present case the complainant party armed with deadly weapons having fallen upon the appellants to rob them of their fish and net it could not be said that they (appellants) exceeded the right of private defence. The learned Judge, however, took a different view. He wanted to justify the action of the complainant party with the following obser vation: "Injuries on the persons of the accused persons cannot by themselves show that the complainant party attacked them first. After what the fishermen did in killing two men and assaulting another, reprisal is a natural thing and impromptu crowd that collected cannot be expected to remain idle". These words of vindication, however, do not fit in with the prosecution case as sought to be made out at the trial. The Judge's surmise, if accepted, would come to this that after the fall of the two Mussalmans the villagers came up there fully armed and attacked the fishermen with a determination to avenge the two deaths. In that case the fishermen would not have been able to leave the place but would have been completely annihilated on the Khamarer Bandh. The Mussalmans had no knowledge that the appellants were carrying arms in their boats and this miscalculation brought about the havoc. The appellants of course made an attempt to show that they were unarmed and that they used the halangas hurled by the complainant party in self -defence but we are not prepared to accept it. It is hardly believable that they would venture to enter the lions' den namely, the village of the complainant without being armed. We are, however, convinced that they took arms with them in order to repel an attack if launched by the hostile party but not to initiate an attack. In the result then the appeal succeeds and is accordingly allowed and the convictions and sentences are set aside, and we direct that the appellants be set at liberty at once provided they are not wanted in any other connection. The appellants Nos. 3‑9 will now be discharged from their bail bonds. ELLIS, C. J.‑

I agree. K. B. A. Appeal allowed.