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1971 Supreme(Gau) 41
GAUHATI HIGH COURT
B.N. Sarma , D.M. Sen, J.
KASIMUDDIN SARKAR AND OTHERS, ACCUSED
VERSUS
THE STATE OF ASSAM
Criminal Appeal No. 93 of 1971 (Against order of B. L. Hansaria, S.J., Goalpara,
Decided on : 28-10-1971, August 10, 1973.
The right of private defense extends to the voluntary causing of death only if there is a reasonable apprehension of grievous injuries or death from the aggressor.
Headnote:
CRIMINAL APPEAL - UNLAWFUL ASSEMBLY - TRESPASS - CAUSING DEATH - RIGHT OF PRIVATE DEFENCE - SECTION 148, 302/149, 323/149, 304 IPC - POSSESSION OF LAND - EVIDENCE - BURDEN OF PROOF - RIGHT OF PRIVATE DEFENCE - EXCESSIVE USE OF FORCE - INTENTION TO CAUSE DEATH.
Fact of the Case:
10 appellants were convicted by the Sessions Judge, Goalpara under Sections 148, 302/149, and 323/149 of the IPC for causing the death of two persons and causing injuries to others during an unlawful assembly with the common object of committing trespass into the land of the complainant party.
Finding of the Court:
The court found that the prosecution failed to prove beyond a reasonable doubt that the land in question was in possession of the deceased and his brothers as alleged during the trial. The court also found that the accused had the occasion to exercise the right of private defense of both person and property, but they exceeded this right by causing the death of the deceased.
Issues: 1. Whether the prosecution proved beyond a reasonable doubt that the land in question was in possession of the deceased and his brothers? 2. Whether the accused had the occasion to exercise the right of private defense of both person and property? 3. Whether the accused exceeded the right of private defense by causing the death of the deceased?
Ratio Decidendi: 1. The court held that the prosecution failed to prove beyond a reasonable doubt that the land in question was in possession of the deceased and his brothers as alleged during the trial. The court relied on the evidence of defense witnesses who testified that the accused was in possession of the land before the occurrence. 2. The court held that the accused had the occasion to exercise the right of private defense of both person and property. The court relied on the evidence that the deceased and his brothers carried lathis in their hands when they went to resist the accused from ploughing on the land, and that some of the accused sustained injuries during the occurrence. 3. The court held that the accused exceeded the right of private defense by causing the death of the deceased. The court relied on the nature and position of the injuries sustained by the deceased, which indicated that the accused intended to cause their death.
Final Decision: The court set aside the conviction and sentence of all the appellants under Sections 148, 302/149, and 323/149, IPC. However, the court convicted appellant No. 3 Abdul Khalek and appellant No. 5 Matiur Rahman under Section 304 of the IPC for causing the death of Raijuddin and Rustom, respectively, exceeding the right of private defense, and sentenced each of them to rigorous imprisonment for 10 years.
B. N. Sarma, J. :- The 10 appellants have been convicted by the Sessions Judge, Goalpara under Sections 148, 302/149 and 323/149 of the I.P.C. and each of them has been sentenced to rigorous imprisonment for life under Secs. 320/149 and to rigorous imprisonment for one month under each of the other two sections. Being aggrieved by the order of the learned Sessions Judge they have now come up in appeal.
2. The prosecution case in brief was that on 28-7-1968 at about 6 a.m. the accused-appellants formed an unlawful assembly being armed with various deadly weapons with the common object of committing trespass into the land falling in the share of P.W. 1 Abdul Gani and others situated at village Mowartari within Bilasipara Police station and in prosecution of the said common object caused the death of two persons, namely, Raijuddin and Rustom and caused injuries to some other persons including P.W. 9 Shah Alam and P.W. 10 Ismail Sheikh while they came to protest against the actions of the accused. After the occurrence P.W. 1 Abdul Gani lodged an ejahar at the Bilasipara Police Station. Police registered a case and on completion of investigation sent up all the 10 appellants under sections 148, 323/149 and 302/19 of the I.P.C. they were later committed to the Court of Session by the Additional District Magistrate (J), Dhubri at the conclusion of preliminary enquiry.
3. All the accused pleaded not guilty to the charges under the aforesaid sections framed against them. Their defence was that the land in question is in possession of accused Kasimuddin since long before and that on the date of occurrence while his sons Osman and Abdul Awal and his sons-in-law Habibur Rahman were ploughing the land the complainant party, namely P.W. 1 Abdul Gani, deceased Raijuddin, deceased Rustom, P.W. 9 Shah Alam, P.W. 10 Ismail Shaikh and others came and resisted and in doing so, they assaulted them causing injuries. It was alleged that in the melee the two deceased persons fell in front of some ploughs and received the injuries from the blades of ploughs. The presence of the other accused persons at the time of occurrence was denied.
4. The prosecution examined as many as 14 witnesses in support of its case including two police Officers and two Doctors., The defence also examined two witnesses in support of its case. Besides the P.Ws. and D.Ws. one witness. On a consideration of the evidence of the witnesses examined in the case the learned Sessions Judge Came to the finding that the land on which the occurrence tool place was in possession of the complainant party at the time of occurrence and that the accused persons were members of an unlawful assembly with the common object of committing trespass into the said land and in prosecution of that common object, some of the members of the unlawful assembly caused the death of Raijuddin and Rustom and also caused injuries to P.W. Shah Alam and P.W. Ismail Sessions Judge held that all the accused-appellants were guilty of the offences they were charged with and accordingly convicted and sentenced them thereunder, as stated above.
5. Mr. K. M. Lahiri, the learned counsel appearing for the appellants contended before us that the above findings of the learned Sessions Judge are not warranted by the evidence on record and that all the appellants should have been acquitted of the charges framed against them.
6. The crucial point that falls for determination in the appeal is who was in actual possession of the on which the occurrence took place whether any of the members of the complainant party or the accused it this question is answered against the prosecute the entire edifice of its case will fall. In that case even of any of the accused appellants caused the death of Raijuddin and Rustom and injuries to to others, the other accused appellants cannot be constructively held guilty for the same with the aid of Section 149 of the I.P.C. It will have to bee seen in that case, if such accused who caus
