JUDGMENT
1. The appellants No. 1 Amir Ali and No. 4 Manik Ali are brothers being sons of late Sarafat Ali. The appellant No. 2 Jalaluddin, No. 3 Habib Ali, No. 5 Isnad Ali and No. 10 Sona MJa (c)Sonahar Ali are sons of late Farmuj Ali. Appellants Nos. 6, 7 and 8 Abdur Rashid (c)Mullah, Hilaluddin and Bolai Mia respectively are sons of Habib Ali. Appellant No. 9 Alai Mia (c)Alauddin is the son of Arab Ali. All the appellants are close relatives. The 10 appellants have been convicted under Section 302/149, 325/149 and 324/149 of the I.P.C. in Sessions Case No. 115 of 1983 by the judgment dt. 28-2-1985 of the Sessions Judge, Silchar. They impugne the said judgment in this appeal.
2. The case arose on the death of Bhagirath mal on 27-4-1982. Abani Kr. Nath (P.W, 7) lodged First Information Report, Ext.3 at Lala Police Station on 27-4-1982. The prosecution story was that Bhagirath Mal with his uncle Naresh Mal were cultivating their land in the morning at about 6.00 A.M. and at that time accused Amir Ali, Manik Ali with their uncles Jalaluddin, Ishad, Sona Mia and Habib armed with deadly weapons, by forming unlawful assembly, suddenly attacked Bhagirath Mal and Naresh Mal in the field and that Amir Ali struck Bhagirath with a ‘lenja’ (spear) causing serious injury and accused Jalal struck Naresh Mal with ‘lenja’ causing severe injury; that to protect the injured, Suresh Mal, Nitai mal and Kanta mal came to the place of occurrence, At that time accused Hilal Mia, Alauddin, Balai Mia and Mullah also appeared and joined in the assault; that the accused party caused injuries on the persons of Suresh, Nitai and Kanta (P.Ws. No. 4, 5 and 6). It was also stated in the First Information Report that the condition of Bhagirath, Naresh and Nitai was serious and (they were) lying at the place of occurrence. The names of the witnesses to the occurrence had been given in the First Information Report and they are : S. udhangshu Nath, Abdul Matin, Irsad Ali, Hariprasad mal, Karuna Nath, Mak mud Ali etc. Bhagirath succumbed to the injuries. Investigation being completed by Karnaswar Sarma (P.W. 9) and charge-sheet being submitted by Shri V. Barpatra Gohain against 10 accused persons, they faced the Sessions Trial by pleading not guilty to the charges.
3. 9 witnesses had been examined by the prosecution and 3 witnesses were examined by the defence. 2 witnesses, namely, Lalbabu Rajwar and Ishad Ali were examined at the instance of the Court as Court witnesses. Admitted position was that 5 persons including deceased of the prosecution side and 4 accused sustained injuries in the occurrence. Police found some of the injured persons of both sides lying at the place of occurrence and took them to the Hospital in the same Van. Some of the accused sustained grievous injuries. This clearly indicates that there was mutual marpit between the parties in that cultivable field.
4. The defence plea was that the place of occurrence (field) belonged to late Rajani Kanta Mal, father of deceased Bhagirath and late Sarafat Ali, father of accused Amir and Manik purchased that land from Rajani mal in 1974 and since then the accused party were in possession of the land; that Rajani mal died in 1981 and since that time there was no dispute as to the possession of the accused party; that Bhagirath lived separate to his father and after death of Rajani mal Bhagirath with the help of Naresh, Nitai, Suresh, Kanta and others tried to dispossess Amir Ali and his brothers from that land; thatonthedayofoccarrence, in the morning hours, Amir Husin along with Jalal, Habib, Manik and Alauddin were ploughing over that land and at that time. Bhagirath with his companions armed with weapons attacked and assaulted them.
5. Learned Counsel Mr. M.A. Laskar for the appellants submitted that they had right of private defence of property and person in the occurrence. Reading the evidence as a whole of both sides, it is found that occurrence took place due to land disputes and possession thereof. Could the prosecution establish beyond reasonable doubt that the possession of the disputed land was with Bhagirath mal at the relevant time? Whether the accused party had right of private defence of property and person?
6. The disputed land originally belonged to Ainakhal Tea Estate and became surplus land under the Ceiling Act and allotment certificate Ext. 1 was issued in the name of late Rajani mal, who paid rent to Ainakhal Tea Estate under rent receipts series Ext. 2 which were for the years 1956 to 1959. These facts are not disputed. Thereafter, there was absolutely no rent receipt to show payment of rent for the land either by Rajani mal or by Bhagirath. P.W. 2 Naresh mal deposed that after death of Rajani Mal, a Khatian was issued in the name of Bhagirath, but no such khatian could be produced by prosecution in the trial in support of the oral evidence of P.W. 2. The oral evidence as to existence of a khatian was not admissible in the absence of that document and the evidence was hit by Section 91 of the Evidence Act. The other prosecution witnesses P.W. 2 Naresh mal, P.W. 4 Suresh mal, P.W. 7 Abani Kanta and P.W. 8 Sudhangshu Nath simply deposed that on the date of occurrence Bhagirath and Naresh were ploughing on their land. Except such a solitary statement as to possession of the land by Bhagirath, they did not state any other fact as to the manner of possession by Bhagirath over that land. Houses of P.W, 5 and 6 Nitai mal and Kanta mal were situated near the place of occurrence and they did not depose about the fact of possession of land by Bhagirath. That much was the evidence on the prosecution side to make out the case on fact of possession of Bhagirath. On careful scrutiny we find that the evidence on prosecution side was very meagre to establish possession of Bhagirath and Naresh.
7. Admittedly Rajani mal possessed the disputed land and paid rent up to 1959. Accused Amir Ali claimed that his father Sarafat Ali purchased the land from Rajani mal in the year 1974 at Rs. 2,000/- and the document Ext.’Ka’ was executed by Rajani mal for the said transfer and that since that time Sarafat Ali and his sons Amir Ali and others were possessing and cultivating the said land. D.W. 2 Isak Ali Barbhuiya, a Deed Writer of Hailakandi Court knew Sarafat Ali and Rajani Mal. He wrote the Deed Ext. A on 15-2-1974 at the house of Rajani mal and witnessed the passing of consideration of Rs. 2,000/- from Sarafat Ali to Rajani Mal. The executant Rajani mal signed in his presence and he proved the signatures of Rajani mal being Ext.Ka(4), Ka(5) and Ka(6). D.W. 3 Mahendra Rajbhar was a Hindustani man like Rajani mal and he could understand Bengali. He knew Sarafat Ali and Rajani mal and also knew about the execution of the Deed Ext.Ka. He was an attesting witness to that Deed. He knew the land transferred by that Deed in favour of Sarafat Ali as it was situated only at a distance of about half a furlong from his land. It is his categorical statement that after execution of that Deed Sarafat A li possessed and cultivated that land. He further said that Bhagirath did not possess that land. Both D.Ws. 2, and 3 are disinterested witnesses. They proved a document executed by Rajani mal in Feb. 1974. They proved that the cultivable land, over a part of which occurrence took place, was transferred by Rajani mal in favour of Sarafat Ali in Feb. 1974. The evidence of Mahendra Rajbhar on the fact of possession and cultivation by Sarafat Ali had significance. In the eye of law, title or interest attached to that land could not be taken to have been transferred in favour of Sarafat Ali because the document Ext.Ka was an un-registered Deed. We are not concerned with transfer of title. It is also not necessary to inquire if Rajani mal had right to transfer, but admittedly he was possessing that land. Ext.Ka for all purposes is admissible in evidence not to prove title, but for collateral purpose to make out a case on fact of possession. The defence was not bound to adduce evidence in the standard to make out their claim of possession beyond reasonable doubt. Making out a case of preponderance of probability on the claim of possession was sufficient for the defence. But here we find that the defence could adduce evidence to make out a case of probability of their possession over the disputed land.
8. During the course of argument, learned Sessions Judge suo motu summoned court witnesses Nos. 1 and 2, namely, Lal Babu Rajwar and Ishad Ali to depose on the fact of possession of the disputed land. Till that stage the evidence of P.Ws. 2. 4, 7 and 8 withtheir solitary statement as to possession of Bhagirath, as referred to above, were on record. The learned Sessions Judge picked up those 2 witnesses as they were reported to be neighbours of the disputed land. Both of them deposed (C.Ws. 1 and 2) that Bhagirath mal occupied and cultivated the disputed land and they are neighbours of that land. But both of them failed to give correct boundaries of that land. The boundaries given by both of them did not tally at all in all directions. Both of them were charge-sheeted witnesses and prosecution did not examine them. It is submitted by Mr. M.A. Laskar that these 2 witnesses in their statements before Police stated that the land was in possession of the accused party and that the accused party was highly prejudiced by their examination as court witnesses, because the defence was deprived at that stage to contradict and to prove their statement made before the Investigating Officer. There is substance in the submission of Mr. Laskar. The prosecution evidence was closed with the evidence of Investigating Officer, who was discharged long ago and the defence had no opportunity to prove the previous statement of the Court witnesses made before the Investigating Officer. It appears that the learned Sessions Judge acted improperly to examine these 2 Court witnesses at a belated stage causing prejudice to the accused in their defence. W e therefore, do not consider their evidence along with the evidence of the witnesses of P.Ws. 2. 4, 7 and 8.
9. Prosecution could not establish satisfactorily that Bhagirath and Naresh possessed and cultivated the disputed land over which occurrence took place Whereas the defence could make out convincingly a probable story of their possession over the said land. In a case, where prosecution claims possession of the disputed land with the allegations that the accused party attacked and assaulted the prosecution party while the latter was ploughing that land under possession, and if by evidence such claim of the possession is not established then the truth of the prosecution case with regard to allegations of attack and assault by the accused as aggressors greatly diminish and consequently the defence plea as to possession and assault on them by the prosecution party, as in the instant case, to be taken as probable. In such circumstances, if the evidence on record makes out a case of mutual marpit with injuries on both sides, as in the instant case, then defence submissions as to the existence of occasion for exercising right of private defence of property and person also becomes probable.
10. First Information Report was lodged soon after the occurrence and stating that the eye-witnesses were Sudhangshu, Matin, Irshad, Hariprasad, Karuna, Makmud etc. Out of the named eye-witnesses in the Ejahar prosecution had examined only one, namely, Sudhangshu Nath (P.W. 8). No explanation was given by the prosecution for withholding the other 6 eye-witnesses. P.W. 7 Abani Kr. Nath lodged the First Information Report and deposed in the trial as an eye-witness. He mentioned presence of Karuna and Sudhangshu but suppressed the presence of Matin, Irshad, Hariprasad and Makmud whom he had mentioned as eye-witnesses of the occurrence along with Sudhangshu and Karuna. As per the First Information Report they were important witnesses to unfold the prosecution case but were kept back without giving any explanation. Non-examination of these witnesses makes the prosecution case suspicious as to its probability as given by the prosecution in the Court. P.W. 2 Naresh, P.W. 4 Suresh are brothers and P. W. 6 Kanta isthesonof Suresh. P. W.5 Nitai isrelatedto Naresh. They all are related to deceased, Bhagirath. All these 4 witnesses participated in the occurrence of marpit and sustained injuries. They were highly interested witnesses. Furthermore, they expressed ignorance by suppressing the fact of sustaining injuries of 4 accused persons in the occurrence. Under such circumstances the evidence of the independant eye-witnesses named in the First Information Report was very much material. But the same was withheld by prosecution without any explanation.
11. It was held by the Supreme Court in Ishwar Singh v. State of U.P. that where some of the eye-witnesses to the occurrence named in the F.I.R. considered important for unfolding the prosecution case are kept back without giving any explanation, the non-examination of these witnesses acquires a special significance ir view of the discrepancy between the F.I.R. and the version of the occurrence given by the prosecution in Court. The Court has to take into account these circumstances in considering the probabilities of the case. In the instant case, there appeared discrepency between the F.I.R. case and the version of the occurrence given by the prosecution in Court.
12. There was no dispute as to the fact of death of Bhagirath as a result of sustaining injuries in that incident on 27-4-1982. During Post-Mortem Examination Doctor (PW. 1) found 3 injuries over his person. They were : (1) Incised wound 5″ x 1/2″ over the right parietal region; (2) Incised wound 3″ x 1/2″ over left occipital region and (3) Incised wound 2″ x W over the left gluteal region (buttock muscle region). Skull bones of right parietal and left occiepital region were fractured with rupture of membrane and laceration to the brain.
13. It was disclosed in the First Information Report by eye-witntss Abani Kr. Nath (P.W. 7) that the accused Amir Hussain struck Bhagirath with lenja (spear). During evidence he deposed that the lenja struck on the belly near the navel point. The other witnesses Naresh, Suresh and Sudhangshu also deposed that Amir Hussain struck Bhagirath with lenja on his belly at the navel point. The Medical witness did not corroborate the version of these 4 witnesses. No injury whatsoever, caused by any type of weapon, could be found over the belly region of deceased Bhagirath. 2 incised wounds over his head and another incised wound over his left buttock region could only be found. Thus the Medical evidence did not corroborate the version of the eye-witnesses as to the fact of Amir Hussain striking Bhagirath with lenja on the belly. Bhagirath did not sustain any puncture injury. The version of these 4 eyewitnesses was not credible. It was held by Supreme Court in Mohar Singh v. State of Punjab that in the presence of glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe to rely on the ocular evidence. In the instant case, the inconsistency between ocular and Medical evidence was glaring as discussed above and hence the ocular evidence is not acceptable.
14. There was no mention in the First Information Report aboui : Bhagirath sustaining injuries by Dao blows or as to which of the accused caused such injuries. The informant (P.W. 7) was silent on this fact in his evidence. P. W. 2 Naresh deposed that accused Manik Mia struck Bhagirath 2/3 times with ‘Dao’ on his head. P.W. 4 Suresh and P. W. 8 Sudhangshu also depos;ed that it was Manik who struck ‘Dao’ blows on the head of Bhagirath. But P. W. 5 deposed that Amir Hussain, Manik Mia and Jalal were assaulting Bhagirath with lathi, lenja and dao. There was no injury on the person of Bhagirath either by blunt weapon or by lenja (spear). P. W, 5 did not state who was holding the dao. P. W. 6 Kanta mal saw Amir Hussain assaulting Bhagirath, Jalal assaulting Naresh and Manik assaulting Nitai with a dao. He did not speak of Manik assaulting Bhagirath with a dao. Thus, we find inconsistency in the evidence of the witnesses as to which of the accused caused incised wounds on the person of Bhagirath.
15. It was stated in the First Information ‘ Report that Amir, Manik, Jalal, Ishad, Suna Mia and Habib Ali by forming unlawful assembly suddenly attacked Bhagirath and Naresh. But the informant (P.W. 7) deposed that accused Jalal, Amir and Manik (three) came together and altercated with Bhagirath and then Amir assaulted Bhagirath and Jalal assaulted Naresh. He was silent as to the participation of Manik nor disclosed if Manik had any weapon in hand. According to him, at that point of time Suresh, Kanta and Nitai appeared to save Bhagirath and Naresh. Then he along with Karuna, Diba Nayak and Sudhangshu also intervene objecting action of the accused. According to him only 3 accused came and 2 of them participated in the marpit. He did not mention in his evidence even the presence of the other 7 accused persons at the place of occurrence. P.W. 2 Naresh mal also deposed that accused amir, Manik and Jalal came and they 3 started marpit. According to him accused Habib Ali and Alauddin came after sometime and joined the marpit. He did not implicate or even mention the presence of the other 5 accused. From the evidence of P. W. 7 and P. W. 2 it is found that there was no unlawful assembly when Bhagirath and Naresh were assaulted. According to P.W. 4 Suresh mal, accused Amir and Manik started marpit and thereafter accused Alauddin and Bolai came and assaulted him (Suresh); and then Jalal, Hilal, Suna and Mullah came with weapons and joined marpit. He implicates 8 accused but from his evidence it is found that at no point of time 5 accused came together and jointly used criminal forces. Thus his evidence also did not support formation of unlawful assembly by accused party. P.W. 5 Nitai mal deposed that Jalai, Amir and Manik came first and assaulted Bhagirath and Naresh. Thereafter on his protest, accused Habib, Irshad, Mullah, Suna, Alauddin, Bolai and Hilal came to the place of occurrence and assaulted him. His evidence also did not disclose that accused party came by forming unlawful assembly to assault Bhagirath and Naresh. Subsequently, the other accused came and assaulted him (Nitai). It would not be proper to hold that the other accused joined with common object to assault Bhagirath and Naresh mal in prosecution of the common object which the first 3 accused Amir, Jalal and Manik had. P. W. 6 Kanta mal did not see the occurrence from the beginning. On coining there he saw accused Amir, Jalal, Manik and Habib participating in the marpit. He did not state about the presence of other accused persons at the place of occurrence at that time. He further deposed that after some time while he obstructed the 4 accused persons from assaulting Bhagirath and Naresh, then accused Bolai, Alauddin and Hilal came and assaulted him. P.W. 8 Sudhangshu deposed about the presence of only 3 accused Amir, Jalal and Manik and their taking part in the marpit. He did not at all mentioned the presence of other 7 accused persons nor their participation in the marpit. Thus, from the ev idence o f P. Ws. 5,6 and 8 the a Uegation o f unlawful assembly with common object to assault Bhagirath was not made out. Application of Section 149 I.P.C. against the 10 accused appellants was not justified.
16. The prosecution witnesses, excepting P.W. 8 Sudhangshu Nath and P. W. 9 Investigating Officer, suppressed the fact that 4 accused persons Amir Ali, Manik Ali, Jalal Uddin and Habib Ali sustained injuries in the occurrence. Sudhangshu deposed that they sustained injuries due to assaults in between themselves. The Investigating Officer found these injured persons also lying at the place of occurrence where Bhagirath and Naresh were lying and all the injured were taken to Hospital in the same Van. Some of them sustained cut injuries, penetraling injuries and lacerated injuries of considerable size over vital part like head. The fact of sustaining injuries by the accused party clearly indicates that there was a free fight between the parties both sides being armed with weapons. As the defence could make out reasonable probability of their possession of the disputed land, therefore, the defence case that Bhagirath with his party-men armed with weapons attacked Amir Hussain, Manik and Jalal while ploughing the land could not be said improbable. Under such circumstances, the accused party had right of private defence of property and person, and in exercising their right, under such circumstances, it was not practicable to measure in golden scales the blows of their weapons on the aggressors. Considering the nature of t he injuries sustained by some of the accused it can be very well observed that they at that moment had reasonable apprehension of suffering death or grievous hurt. Thus, actions of the accused party were in the exercise of their right of private defence.
17. When a group of persons numbering 5 or more, at a time, in exercise of their private defence of property and person use criminal force, application of ‘unlawful assembly” on the members of the group will be improper. But, as soon as the right ceases and the group continues with the criminal force with common object, they become members of an ‘unlawful assembly’.
18. Learned Sessions Judge failed to appreciate the evidence on record. We find that the prosecution could not establish the charges beyond reasonable doubt.
19. Accordingly we allow this appeal, set aside the impugned judgment in Sessions Case No. 115 of 1983 of the Court of Sessions Judge, Silchar and acquit all the 10 accused-appellants from all the charges and set them at liberty forthwith.
T.C. DAS, J.
20. I agree.