Patna High Court
Fouzdar Rai And Ors. vs Emperor on 17 December, 1917
Equivalent citations: 44IND. CAS.33, AIR 1918 PATNA 193
JUDGMENT Roe, J.
1. In this case the appellants have been convicted on a charge of rioting. The story told for the prosecution was that while the complainant's party was peacefully cutting crops which they had themselves grown without opposition, Fouzdar Rai mounted on a horse and carrying a garasa attacked the complainant's party with an overwhelming force, with the result that two of the complainant's party were beaten with sticks and one was struck in the stomach with a sharp cutting weapon causing an injury which resulted in his death.
2. The learned Sessions Judge agreeing with the Assessors is satisfied that the story of the complainant's possession is untrue. The learned Government Pleader contests this finding. His contention is correct that the burden of proof lies on the accused to show that the crops cut belonged to them. The learned Judge based his finding on this point on the discrepancies in the story told by the other party as to various crops sown on the land and various other matters which must have been within their knowledge if they had in fact been in possession and on direct admissions made by two of the complainant's witnesses. It is contended on behalf of the Crown that these two witnesses were hostile witnesses. There is much misconception in the minds of Public Prosecutors in the Courts below as to what constitutes a hostile witness. A witness is not necessarily hostile because in an absent minded moment he lets out the truth. It must be shown before a witness can be declared hostile that there is good ground for believing that the statement he has made in favour of the defence is due to enmity to the prosecution. It may be an unfriendly act to let out the truth, but it is not necessarily a hostile act. In this case there is nothing to show any hostility in the witnesses who have made these damaging admissions. I am satisfied that the learned Judge was correct in holding that the crop, which was being cut by the complainant's party, had been grown by the accused,
3. There seems to be also much misconception as to the real meaning of the decisions in Kabiruddin v. Emperor 35 C. 368 : 7 C.L.J. 359 : 12 C.W.N. 384 : 7 Cr.L.J. 256 : 3 M.L.T. 385; Maniruddin v. Emperor 35 C.384 : 12 C.W.N. 579 : 7 Cr.L.J. 374. In Kabiruddin v. Emperor 35 C. 368 : 7 C.L.J. 359 : 12 C.W.N. 384 : 7 Cr.L.J. 256 : 3 M.L.T. 385 the learned Sessions Judge had summed up the law to the Jury as follows: "There can be no right of private defence, either on one side or on the other, where both parties are evidently aware of what is likely to happen and turn out in force. The right of private defence cannot be pleaded by persons who expecting to be attacked go out of their way to court an attack. When the parties of the complainant and accused are prepared to fight, it is immaterial who was the first to attack, unless it be shown that the accused were acting in the exercise of the right of private defence". The sole question before the High Court was, therefore, whether the Sessions Court had in thus stating the law misdirected the Jury, The finding of the High Court was that this was a correct statement of the law. The facts in Maniruddin v. Emperor 35 C. 384 : 12 C.W.N. 579 : 7 Cr.L.J. 374 were not dissimilar. There had been a partition of certain land of which the disputed plot formed a part. There was a dispute as to the share to which the disputed plot had fallen on partition. Maniruddin collected a large number of lathials before being attacked by the other side. He took these lathials armed with deadly weapons to the land and on the way called out to his adversary "come out, haramjada, you and your sons. I am going to the field". In the circumstances of these two cases there was an obvious point which deprived the accused of the right of private defence. They had in the one case courted and in the other provoked an attack by the other aide. But because of these decisions it seems to be the opinion of many Courts below and of all Police Officers that there can be no right of private defence if there has been a riot. This is not the law. The right of private defence extends to Section 141 and subsequent sections, just as much as it extends to any other offence punishable under the Indian Penal Code. Where a person in possession of property sees an actual invasion of his right to that property, if that invasion amounts to an offence under the Code, he is entitled to resist it by force and to collect for that purpose such numbers and such arms as may be absolutely necessary for this purpose, provided only that there is no time to have recourse to the protection of the Police authorities. In the case before us there is nothing to suggest that the accused courted or provoked attack or knew that an attack was imminent. Had they gone to the thana to make a complaint after the attack had begun, their crops would have been removed long before the Police could arrive on the scene. I cannot hold that the accused were at any time members of an unlawful assembly. They cannot, therefore, be convicted of rioting.
4. That the right of private defence was exceeded by some members of this body of rioters is obvious. The right of private defence of property does not extend to striking a man in the stomach with a sharp cutting instrument. But, as the learned Judge has found, the charge that Fauzdar Rai himself caused this wound is obviously untrue, and since there was no unlawful assembly, the accused cannot be punished under Section 149.
5. I would acquit all the accused and direct that they be discharged from their bail.
Imam, J.
6. I am in entire agreement with the views expressed by my learned brother on the points raised by the learned Vakil on behalf of the appellants. It is quite clear on the evidence that the private prosecutor Munshi Kumar brought a number of men exceeding five to the land in possession of the appellant Fauzdar Rai and started cutting crops that were undoubtedly raised by the accused. There was resistance by the accused, which resulted in injuries on both sides. It may be that the breach of the peace was the direct result of this encounter, but we have to consider which of these two parties was in the wrong. The accused Fauzdar Rai must have the sympathy of the Court inasmuch as he was in possession and the crops were raised by him. The private prosecutor was undoubtedly an aggressor and was trying by force to cut and ' remove crops belonging to the accused. In the circumstances it is evident that at one point of time or another the right of private defence accrued to the accused. The question then is, when did this right begin? There being absolutely no evidence on the record to show or suggest that the appellants had any previous information of the intended visit of the private prosecutor with his men to the field, it cannot be held that the accused had notice of the trespass contemplated by Munshi Kumar. In this case the moment the trespass was committed the right in the appellants to resist that trespass and to save the crop commenced. That right was the right of private defence of property. After this the appellant Fauzdar Rai gathered together a number of his friends and adherents and went to his land to stop the aggression and resist the cutting of his crops. It cannot be said that the view of the law taken in Kabiruddin v. Emperor 35 C. 368 : 7 C.L.J. 359 : 12 C.W.N. 384 : 7 Cr.L.J. 256 : 3 M.L.T. 385 would be applicable to the present case. I feel no hesitation in holding that in this case there was the right of private defence in the appellants and that in the exercise of that right when they came to the field they were not members of an unlawful assembly. The assembly not being an unlawful one the charge of rioting under Sections 143 and 147, Indian Penal Code, as against the appellants must necessarily fail.
7. The conviction and sentence in this case must, therefore, be set aside.