P L D 1969 Dacca 991 (PLP)

I saw the occurrence. This occurrence did not take place over leading cattle to gochar but it took place over catching fish from the Bharang." It is desirable that a portion of the evidence of D. W. 4 Ananga Bijoy Ash, be quoted in his own words. The witness said: "We the Ash families are proprietor of ` Goneshwarpur Bharang. There is a doba or water portion in this Bharang. A bundh was erected on the western boundary of the Bharang. Before erection of bundh Aman Paddy used to be grown on the sourroundings of the doba. After bundh boro paddy is grown on the surrounding .of the doba, villagers of Mohammadpur catch fish from the doba and water the boro lands by water of the doba. Bharang is plot No. 231 of Goneshwarpur Mauza." This witness (D. W. 4) further said that plots Nos. 34, 35, 41 and 230 of Mouza Goneshwarpur shown in the settlement map, Exh. B, immediately adjacent to the north of the Bharang, were boro lands and the lands on the further north were Aman land. On the southern side of the Bharang there were boro lands and further south Aman lands. The witness also said in cross- examination that plot No. 316 to the north of the Bharang was also Aman land, although it was pant land about 7 or 8 years ago this witness was not cross‑examined in the least by the prosecution as to his statement that plots Nos. 34, 35, 41 and 234 were bora lands and that the lands towards the further north were Aman lands or that to the north of the Bharang there was no gochar. In this regard the witness was cross‑examined only with reference to plots Nos. 316, 4,7,29 and 9 as to their character, whether they were paddy growing lands or patit lands. We have examined the C. S. map Exh. B (which seems to have been marked as Exh. C as well), we do not think that the latter plots, namely, plots Nos. 316, 4, 7, 29 and 9 would really be the lands to the north of the Bharang. D. W. 3 Abdul Kadar also claimed that there was no gochar on the northern bank of the Bharang nor there was a `'pathway or gopat from Provakarpur up to the Bharang. We do not find any reason why we should not accept the testimony of these witnesses. From what has been found by us in the settle ment map, Exh. B. And the evidence of D. Ws. 2, 3, 4 we have no hesitation in saying that the prosecution story that there is a gochar to the north of the Bharang has no legs to stand upon. The learned Additional Sessions Judge held, as noted before; that the accused persons, if at all, had only an easement right. According to the learned Additional Sessions Judge they had no right of private defence of such a right and sought support in that respect from the case of Ram Rup (A I R 1939 Oudh 38). We do not agree. True it is that the accused persons had no title to the Bharang, which in fact they never claimed. It was testified to by P. W. 1 Chand Ali in unfolding the prosecution case, that this Bharang belongs to Jogendra Das Ash. Annya Bijoy Ash, son of Nogendra Kumar Ash, figuring as D. W. 4 in the case seems to support the defence claim of possession of the Bharang whose evidence we have already referred to. We have to bear in mind that the complainant‑party does not claim any right or interest in the Bharang except the right to take their cattle through it. We think it is reasonably possible to conclude from the above evidence, that the accused‑party were in possession of the Bharang. They used to grow paddy in ex‑portion of the Bharang and catch fish in the remaining portion the doba. They also used water of the doba for cultivation. The accused persons undoubtedly had a possessory right. In this view of the matter the decision in the case of Ram Rup referred to above has no manner of application to the present case. It is also relevant to note that P. W. 3 Torab Ali admitted in cross‑examination that "except on the day of occurrence and on the previous day, none opposed" them "taking cattle through the Bharang at any other time". The prosecution has failed to prove the existence of the gochar to the north of the Bharang. Accordingly, we find it difficult to accept the testimony of the 13 eye‑witnesses regarding the manner of occurrence. We are constrained to doubt the main burden of the prosecution case, namely, that the occurrence took place over the question of taking cattle of village Provakarpur to the gochar through to Bharang to its north. Upon the materials on record we have no reason to disbelieve the defence version that the appellants together with four others on their side sustained injuries on their persons in course of the incident, as were found by P. W. 11 Dr. A. K. Khalilur Rahman. But unfortunately the prosecution has not endeavoured in the least to explain how these eight persons sustained injuries. In fact, the prosecution case, as sought to be made out totally excludes the possibility of such injuries, being inflicted on the accused persons. This aspect of the case does not seem fit have received much attention of the learned Additional Sessions Judge. We are inclined to hold that the prosecution has not made a full and true disclosure of the whole of the circumstances of the case. We cannot‑ determine with any degree of certainty as to the manner in which the appellants inflicted injuries on the persons on the side of the complainant. We are bound to say, therefore, that this is a case where facts relating to the incident are wanting and the evidence which ought to have led was not led to bring to light the full facts of the occurrence. The doubt obtaining in the situation, in consequence, is of such of character that it renders it impossible for us to draw inferences from the facts sought to be established by the prosecution and to hold safely that the accused are guilty of the offence they were charged with. On the other hand, regard being had to the facts and circumstances, so far as they have been disclosed and, especially, in view of the conclusion we have reached, namely, that the Bharang was in the possession of the people of village Mohammadpur, that is to say, of the accused, that the occurrence took place over catch ing fish in the Bharang is more likely to be true. Indisputably the accused persons had the right to defend their possession of the Bnarang. Instead of heeding to their protest, the complainant party insisted on taking their cattle through the Bharang, which contained standing paddy. The complainant‑party also inflicted penetrating injuries by means of spears on several persons on the side of the accused, including a grievous injury on the chest of accused Abarak (appellant No. 8), as found by and deposed to in cross‑examination by P. W. 11 Dr. A. K. Khalilur Rahman. We are inclined, therefore, to accept Mr. Bose's contention that the accused could legitimately claim right of private defence of person, as of property. The only question that remains to be examined now is whether the appellant exceeded that right. A person has a right to defend his own body and the body of any other person against any offence affecting the human body and also the right to defend the property whether of himself or of any other person. The right of private defence of tile body extends, subject to certain restrictions which do not apply to the facts of the present case, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right amongst others be an assault which may reasonably cause the apprehension of death or grievous hurt. The right, of private defence of the body or of the property commences as soon as a reasonable apprehension of danger to the body or to the property arises. The defence case that it was D. W. 2 Kala Mia who, having caught hold of the koch shah thrown at him by deceased Gazi Baksh hurled it back to the assailant may or may not be true. But then if Gazi Baksh, or any one on the side of complainant party sought to cause any harm to any person on the side of the accused party, everybody of the latter party had a right to resist the same; and if the assault or the attempt to commit the same by the complainant party cause the apprehension of death or grievous hurt, the right of private defence of the accused party would extend to the causing of death to the assailant. In the present case Abarak received a grievous injury, and seven others on the side of the appellants sustained incised wounds. Even if we accept the finding of the learned Additional Sessions Judge that it was the accused persons who inflicted the injuries on six persons including Gazi Baksh on the side of the complainant party, we are inclined to hold that it is not unlikely, that the appellants had acted on the reasonable apprehension of death, or grievous hurt and, therefore, did not commit any offence. The learned Additional Session s Judge was of the view that the accused party, armed with deadly weapons, came ready from their houses to fight with and assault the complainant when the latter would come to the Bharang with their cattle. It further appeared to the learned Additional Sessions Judge that the riot committed by the accused was premeditated and pre‑arranged and that it was a case of free fight. The learned Additional Sessions Judge accordingly held on the basis of the decision in the casa of Syed Ali Bepari v. Nibaran Molla and others (P L D 1962 S C 502) that there was no right of private defence available to the accused persons. The facts of the present case are distinguishable from those of the case cited. The facts in that case were as follows: ‑ "According to the prosecution the accused persons along with others numbering twenty or twenty five trespassed upon Ahmed Bepari's land in Mouza Patrail and started reaping paddy from the said land. On the protest by Ahmed Bepari and his companions Nibaran Molla under the order of Adu Molla, struck Ahmed Bepari with a Katra. The defence version of the incident as suggested to the prosecution was that Adu Mollah had grown paddy on his land of Gobindapur Mouza which adjoins Ahmed Bepari's land to the south. As the complainant party forcibly entered upon that land with a view to reap the paddy grown by Adu Mollah and also assaulted the members of the accused party there was a free fight in the course of which members of both the parties were injured and it was no? known who beat whom." In the case under reference their Lordships of the Supreme Court observed: "There is, however, no satisfactory evidence that either party was in exclusive or undisturbed possession of the land. A legitimate conclusion therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property." In the present case we have already found that the accused persons were in possession of the Bharang and, therefore, they had every right to defend the same. Lie think that the learned Additional Sessions Judge wrongly interpreted Syed Ali Bepari's case which, in our view, has no application to the present case. The learned Additional Sessions Judge also relied on the case of Jamshed Ali (5 D L R 369). The facts of the present case are clearly distinguishable from the facts of Jamashed Ali's case. That case was decided, amongst others, on the basis of the following finding: "in view of the evidence on record and the history of the litigation between the parties and in particular to the question of disputed plot of land we have no hesitation in holding that at the time of occurrence a particular plot of land was in possession of the complainant party." To repeat once again, we have found that the Bharang was in the possession of the accused party. Their Lordships of the Supreme Court as well as of the High Court, it seems to us, made an obvious distinction between the two categories of cases: (1) a person claiming protection for his acts in defending a property in his possession and (2) a person claiming protection for his acts in enforcing his right or supposed right being out of possession or where possession is in dispute. While in the former case the person in rightful possession may, legitimately raise the plea of right of private defence, in the latter case it cannot be said that there arises a question of right of private defence. And we cannot experts ourselves in more clear terms with respect to this latter category of case than by referring once again to the words of the Supreme Court in Syed Ali's case cited above that in such a situation it is impossible to say that the accused was acting on the defensive merely or acting in the exercise of any right of private defence of persons or property. We would like to observe, however, that the two categories of cases must be seen in clear perspective and the distinction between the two, as of necessity maintained. The decision in Syed Ali's case, it appears to us, is no authority for the proposition that "in a free fight or premeditated and pre‑arranged fight" as was held by the learned Additional Sessions Judge, no question of right of private defence arises. The person in rightful possession is not debarred from raising the plea of right of private defence merely because apprehending a an attack upon the property, he collects his strength and when the anticipated attack does come, defends his own, though in the resultant situation of a free fight. In this connection we may respectfully refer to the case of Safdar Ali v. Crown (P L D 1953 F C 93) which was notices by their Lordships of the Supreme Court in case of Syed Alt Bepari. In referring ourselves to the case, we can do no better than to quote what was said by his Lordship Abdul Rashid the Chief Justice of Pakistan. His Lordship said: "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." It was also observed in the said case by Cornelius, J. as his Lordship then was: "The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extend to which the charges may be held to have been proved, as it is to examine the prosecution case side by side with the defence case in reaching a decision on the accused's special pleading . . . . . . ." Such views as above were conceived by his Lordship Cornelius, J. to be the meaning of the illustrious words pronounced by Viscount Sankey L. C. In the leading case of Wootmington (L R 1935 A C 462); "the verdict must be given not on any special pleading but upon and the result of the whole of the case." Having kept these celebrated authorities in view, we have found the plea of right of private defence of person and property raised by the appellants materially established. The only question whether the right has been exceeded has also been answered by us in the negative. On the same consideration the charge under section 148 equally falls through. The result, therefore, is that the appeal is accepted. W e set aside the order of conviction and sentence passed upon the appellants and acquit them of the charges. We direct that appellant No. 1 Tota Mia be set at liberty forthwith, if not wanted in any other connection. Appellants Nos. 2 to 10 who are on bail are discharged from their bail bonds. A. M. SAYEM, J.‑‑I agree.