1. T.H. KHAN, J.--This is an appeal at the instance of four appellants against the order of conviction and sentence passed by the learned Additional Sessions Judge, Sylhet. The appellant No, 1 Joy Kumar Das has been convicted under section 302 of the Pakistan Penal Code and has been sentenced to transportation for life, he has also been convicted under section 148 of the Pakistan Penal Code, but no separate sentence has, however, been awarded thereunder. Appellant No, 2 Raj Kumar Das has been convicted under section 148 of the Pakistan Penal Code and has been sentenced to pay a fine of Rs, 200 in default to suffer rigorous imprisonment for six months ; he has also been convicted under section 324 of the Pakistan Penal Code but no separate sentence has been awarded thereunder. Appellants Nos, 3 and 4 Abdur Rahman and Usman Khan respectively have been convicted under section 148 of the Pakistan Penal Code and have been sentenced to pay a fine Rs, 200 each in default to suffer rigorous imprisonment for six months each.
2. The occurrence appears to have taken place over the cutting of canes from the cane bush situated on the southern side of village Karnagaon, P. S. Darai, which admittedly, belonged to accused Kedar Nath Choudhury and others who used to sell canes occasionally to customers.
3. The prosecution case, in brief, is that on Sunday the 6th Magh 1369 B. S. corresponding to 20th January 1963 P. W. Joy Kumar Das (also described as Joy Kumar Nath) along with 11 others went to cut canes from the cane bush situated on the southern part of their village and cut some canes. At this in all about 60/70 people variously armed with Toch-shalallathis', `poi', 'halangas' and `banal' etc.' came there and forbade them to cut canes from that bush. At this stage, some disinterested persons like Aftab Mia, Afsar Mia, Rafu Mia and Habibur Rahman, member, Union Council came and intervened in the matter and also forbade both the parties to quarrel and advised them to leave their respective place proposing that they would decide the dispute by `salish'. Accordingly, the accused party left for their homes. The complainant party also left for their homes and proceeded along the `go path' by the eastern bank of the adjoining river Surma which flows north to south by the west of their village Karnagaon and when they reached south west of the house of Durga Charan, all the accused persons variously armed with Toch-shala', (lathis,) 'pol', 'halangas, 'basal' etc. came and attacked them. Accused Kedar Choudhury gave order to kill and accused Joy Kumar Das (appellant No, 1) struck with a `poP or `sulphi' on the right chest of Sreedhar and accused Upendra struck `lathi' blow on his nose and face, as a result of which Sreedhar collapsed on the ground and died instantaneously. Accused Ajbar struck P. W. 1 with `koch-shala' on his right leg near the 3rd fourth toes. Besides the said injuries caused on the person of deceased Sreedhar and on his own person, it was not possible for P. W. 1 to say "who assaulted whom any further. In all 11 persons of the complainant party besides the deceased sustained injuries. On hearing their cries, Habibur Rahman, Rafu Mia, Rajendra Nath and others came to the place of occurrence to whom P.
2. W. 1 narrated the occurrence. Then all the injured persons assembled at one place and taking the dead body of Sreedhar went to the police station. P. W. 1 lodged first information report which was recorded by P. W. 18, Officer-inCharge of Derai Police Station on the same date i,e, 20th January 1963 at 4 p.m. The occurrence took place at 1-30 p.m. Derai Police Station is four miles off from the place of occurrence. P. W. 18 held inquest over the dead body of Sreedhar on the identification of the complainant and others in the presence of witnesses and found injuries on his chest, nose and cheek. He also found injuries on the persons of Banka and ten others. The Medical Officer of Derai being then on leave he sent the dead body and all the injured persons to Sunamganj through Constable No, 358. He then left for the locality at 4 a.m. the next day. He was shown the place of occurrence by P. W. 13 Habibur Rahman and others to the west of the village Karnagaon and to the east bank of the river Surma. He then prepared a sketch map of the locality (Exh. 2) with separate index Exh. 2/1. He also found the place disturbed by human foot-prints and marks of blood stains on several pots. At one place he found blood in a large quantity. He also seized alamats by preparing seizure list and searched for the accused and tried to arrest them. After completion of investigation he submitted charge-sheet against 16 accused persons. This was followed by a preliminary enquiry held by a competent Magistrate who committed all the accused persons to the Court of Sessions to stand their trial.
3. In the Sessions Court all the 16 accused persons were charged for rioting with deadly weapons under section 148 of the Pakistan Penal Code. In addition, the appellant No, 1 along with another was charged for committing murder by causing the death of Sreedhar Nath under section 302/34 of the Pakistan Penal Code. Appellant No, 2 was also charged for voluntarily causing grievous hurt to P. W. Suresh Biswa s by means of `kochahals' under section 326 of the Pakistan Penal Code.
4. The prosecution produced as many as 21 witnesses including the formal witnesses of whom 19 were examined and two were tendered for cross-examination.
5. The defence did not examine any witness. It is interesting to note at this stage that all the local P.
6. Ws. including those who received injuries in the occurrence except P. W. 1 retracted from their evidence given in the committing Court. On the prayer of the prosecution, the statements made before the committing Court by all the local P. Ws. except that of P. W. 1 and on the prayer of the defence that of P. W. 1 were put in under section 288 of the Code of Criminal Procedure after due compliance with the provision of section 145 of the Evidence Act. It appears that P. W. 1 during his cross-examination was also inclined towards the defence.
7. All the accused persons pleaded not guilty to the charge levelled against them. Their case, as can be gathered from the trend of cross-examination of the P. Ws., is that the accused Kedar Nath Choudhury and others are the owners, in possession of the cane bush. They sold canes to Golak Das, Gedaiullah and others who are also accused in the case. The prosecution party cut canes defying protest of the purchasers. So, these purchasers and others hurled weapons to drive away the cane cutters from a long distance and in these circumstances, it was not possible for anybody to say whose weapons hurt or injured whom. The occurrence took place at the cane bush at about late morning. The dead .body and the injured were then collected in the 'path' land on the east bank of the river for taking them in a boat and about two hours after the occurrence they started for the police station. The occurrence did not take place at the time, place and in the manner as alleged by the prosecution.
8. The death of Sreedhar Nath in the occurrence is hardly Joy Kumar disputed in this case. P. W. 11 Dr. Md. Abdul Kader at present Dasv. Professor of Opthalmology, Sylhet Medical College, who was State Sub-Divisional Medical Officer, Sunamganj, in January 1963, held --autopsy on the dead body of Sreedhar Nath and found the T. H. following injuries: "I found R. M. present, mouth and eyes open, and injuries : (1)One punctured wound (sic) " x x chest cavity directing backwards and medially below the lateral third of the right clavicle, and (2)One punctured wound i" x x r on the lower lip.
9. On dissection the right side of the chest wall was found injured, right pleura injured, upper lobe of the right lung was found punctured, all the structures below the lateral third of the right clavicle were stained with blood, blood clots were also present in and around the wound, right pleural cavity also contained blood clots and dark fluid blood. Heart contained clotted blood. Stomach was healthy and contained about 4 chhattacks of partially digested rice. All other organs were healthy."
10. The death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injury No, 1 which was ante-mortem and homicidal in nature. Injury No, 2 was also ante-mortem and homicidal in nature. Injury No, 2 could accelerate death if there was bleeding from that wound.
11. Both the injuries might be caused by a sharp-pointed weapon like `sulphi'. Injury No, 1 was inflicted with powerful force.
12. P. W. 1 Joy Kumar Das has narrated the prosecution case. He has given an idea of the locality. The village Karnagaon is about 2 miles north to south. The house of P. W. 3 Durga Charan Biswas is in the extreme northern part of the village and the cane bush is in the extreme southern part thereof.
13. The river Surma flows south along the western side of the village. There is a fallow land on the eastern bank of the said river. There is a path running north to south through the fallow land. He has given further topography of the locality starting from the cane bush in his cross-examination. He has stated that there is a fallow land on the contiguous north of the cane bush. Beyond its further north is a Hindu Hatti, beyond that there is a Muslim Hatti, intervened by some other deserted houses, beyond that is the Hatti of accused Raj Kumar and Haribal Shil and beyond that is his own Hatti intervened by some deserted houses. There is a mosque in between the Hindu Hatti and the Muslim Hatti. The cane bush is about half a mile from that mosque. On Court's query he has stated that Durga Charan's house is about 1 miles from the cane bush and about 200 cubits south of his own house. According to him, the occurrence took place near the house of Durga Charan and not at the cane bush.
14. Mr. Ataur Rahman Khan, learned Advocate for the appellants has seriously challenged the place, time and the manner of the occurrence. According to him, the place of occurrence is the cane bush and the time of occurrence is about 9-30 a.m. He has contended before us that having regard to the admitted fact that the cane bush in question was under the ownership and possession of Kedar Nath Choudhury and others and that admittedly the complainant party cut canes from the said cane bush having defied the protest made by the accused party the appellants were entitled to the right of private defence of property. He has further contended that at any rate, if on a close scrutiny of the evidence on records it is found that the occurrence took place at the cane bush or even if some reasonable doubt is created against the prosecution story with respect to the place of occurrence the defence is entitled to the benefit of the right of private defence of property in the facts and circumstances of the case.
15. It is indeed true that the complainant P. W. 1 has admitted in clear and unambiguous terms in his cross-examination, "We have no right to that cane bush. We went to cut canes after taking meals at about one pahar of the day. Sreedhar also took morning meal with me. He did not take any other meal on that day. The accused Kedar Nath and others have got title to that cane bush. These maliks occasionally sell the canes to customers." As regards the time of occurrence, P. W. 1 has admitted, "the occurrence took place at about 11-30 a.m." As regards the place of occurrence P. W. 1 has remained steadfast to the prosecution case that the occurrence had taken place west of the house of Durga Charan. Before the Sessions Court he had to be corroborated with reference to the statements made before the committing Court by the other local witnesses who were the companions of P. W. 1 and who, in fact, sustained injuries on their persons, as is evident from the medical evidence in this case. The evidence of the Investigating Officer, P. W. 18 also lend support to the prosecution case as to the place of occurrence. He has stated, with reference to his sketch map Exh. 2, and the separate index Exh. 2/1 as follows :-- " 'A' in my map is a place which was shown to me. 'B' is Karnagaon village. 'C' is a house where I found P. W. 3 Durga Charan Biswa s. 'D' is the river Surma. 'E' is village Mokshedpur, 'I' is a mosque, 'F' is a cane bush, `L,' is a narrow path. 'G' is a house where I found P. W. Habibur Rahman, VI' is a primary school. Within the radius of 'A' I found the place disturbed by human foot-prints. I found several bloodstained places there. In one place I found blood in a large quantity there I found many kochsalas, arrows lying there. At this place the river Surma runs straight north to south."
16. But Mr. Ataur Rahman Khan, learned Advocate for the appellants, having drawn our particular attention to the statements made by P. W. 1 in his cross-examination, has argued before us that these statements lend support to the defence case that the occurrence took place at the cane bush. The statements of P. W. 1 are to the following effect : "I know Golak Das, Kunja Lal Das, Kedaiullah, Sharafatulla and Ram Chandra Das who are also F. I. R. named accused.
17. They also attacked us and forbade us from cutting canes saying Joy Kumar that they purchased the canes from the maliks. Some of us cut two or one (a few) canes. Then they attacked us.
18. Accused Kedar was present there. About 60/70 persons were present. These was `marpit' there."
19. After this sentence there is a note by the learned Additional Sessions Judge about the demeanour of P. W. 1, that "the witness falters and replies". In this contey t, the learned Advocate for the appellant has also drawn our attention to the statements made by P. W. 13 Habibur Rahman to the following effect : "The P. 0. was not visible from my house. On hearing rows I went to the cane bush and saw Sreedhar, Joy Kumar, Dharani, Tarini and others cutting canes. Accused Gita Das, Battia Das, Jitendra and others whose names I do not remember, then says, accused Kedar Babu, Swaraj, Ajbar Ali and others whose names I do not know, in all about 30-40, variously armed with `kochsala, lathi' were present at the cane bush. I intervened and asked both the parties to go away. I said that I held Panchayet on one day and would decide it in another Panchayet. The complainant party said that they would not agree and they started cutting canes when the `maramari' started."
20. As regards the time of the occurrence this witness stated that on Sunday, 6th Magh, at about 9 a.m. the occurrence took place, to the same effect is the evidence of P. W.
14. However, the statements made by these witnesses before the committing Court were put in after compliance of the provisions of section 145 of the Evidence Act. The learned Advocate for the appellants argues that although the statements made by the local witnesses before the committing Court have been rightly admitted in evidence, yet, their conduct speaks a volume against them and their integrity as a witness of truth is in great doubt. As regards the evidence of the Investigating Officer P. W. 18 as to the place of occurrence as quoted above, the learned Advocate for the appellant argues that there is no conflict whatsoever between the testimony of P. Ws, 1, 13 and 14 on the one side and the testimony of P. W. 18 on the other, because, according to him, the place shown in the sketch map by P. W. 18 i,e, the place near the house of P. W. 3 Durga Charan is the place where actually the accused persons assembled after the occurrence had taken place at the cane bush. In support of this contention our attention has been drawn to some statements of P. W. 1 to the effect: "Many sulphies, say 20-25 were hurled at the same time. We 10/12 men were injured. We removed the injured first in the patit land on the bank of the river. That place is to the west of the house of Durga Charan.
21. The place where injured were assembled would also be about half a mile from that mosque. Blood fell where all the injured and the dead body were kept. We went to the thana by a boat about 2 or 1 hour after the occurrence. All injured and myself went to the thana by the same boat,"
22. When it was pointed out to the learned Advocate for the appellant that P. W. 18 in his examination- in-chief stated that he was also shown a cane bush by the witnesses in the case and he found some canes of the bush cut, and that he did not find any mark of blood or violence there, the reply of the learned Advocate was that P. W. 18 concentrated his attention more on the place near the house of Durga Charan where the injured assembled and the dead body was kept as it was consistent with the story given in the first information report and might have deliberately omitted to mention all the features found at the cane bush. As regards the manner of the occurrence it appears that there was a confrontation between the two parties and from the evidence of P. W. 1 it is found that many sulphis, were hurled at the same time and we could not see anything beyond the assault made on deceased Sreedhar Nath and himself. "Accused Joy Kumar Das hurled sulphi to Sreedhar Nath from a distance of 25/26 cubits." The medical evidence on records shows that most of the injuries on the persons of the injured persons are on the front side. This evidence lends support to the view that there was a confrontation between the two parties.
23. Having considered the above evidence on records and the facts and circumstances of the case as a whole we have arrived at the conclusion that the possibility of the occurrence having started at the cane bush cannot be altogether excluded. This brings us to the consideration of the question of the right of private defence of property as raised by the learned Advocate for the appellants. On a close consideration of the evidence on records, we are of the opinion, that there existed circumstances which entitled the defence to claim a right of private defence or at any rate, the defence has succeeded in proving circumstances which are likely to give rise to a right of private defence of property. The question that next arises is whether the appellant No, 1 is entitled to acquittal, or his case falls within any of the Exceptions of section 300 of the Pakistan Penal Code and bring the offence within the terms of section 304, Part I of the Pakistan Penal Code. Having regard to the clear admissions made by P. W. 1 Joy Kumar Das, regarding the title and possession of the cane bush and also having regard to the weapons the complainant party carried with them, namely, sharp big size `daos' meant for cane cutting and their number, it may be legitimately held that the accused party was within their rights to resist the complainant party in order to maintain their possession and carrying of weapons with them was not unusual in the facts and circumstances of the case. We are also of the view that the resistance put up by the defence was in good faith and without any premeditation inasmuch as the complainant party appeared at the cane bush and started cutting canes admittedly defying protests. Moreover, there was a confrontation between the two parties ; admittedly the `sulphis' or `halangas' were hurled from a distance of 20-25 cubits. It is also admitted that the appellant No, 1 Joy Kumar Das hurled sulphi to Sreedhar Nath from a distance of 25/26 cubits. This fact goes to show that appellant No, 1 did not really aim at the particular part of the body of deceased Sreedhar Nath, but the `sulphi' struck accidentally. From these facts and circumstances we are further of the view that the culpable homicide of Sreedhar Nath in this case does not amount to murder inasmuch as the case comes within the terms of Exception 2 of section 300 of the Pakistan Penal Code and therefore, it falls within the terms of section 304, Part I of the Pakistan Penal Code. We accordingly convert the conviction of the appellant No, 1 Joy Kumar Das from one under section 302 to one under section 304, Part I of the Pakistan Penal Code, and we think that the ends of justice will be met if he is sentenced to suffer rigorous imprisonment for a period of 7 (seven) years, and we order accordingly. As regards the other three appellants, suffice it to say, that as we have already found that the possession of the cane bush was with the accused party and the possibility of the occurrence having started at the cane bush could not be brushed aside, the question of forming an unlawful assembly in protecting legal possession does not arise. It appears from the records that some other accused persons were also convicted and sentenced under section 148 of the Pakistan Penal Code. At least four of them, namely, Upendra Kumar Das, Battia Das, Jabar All and Haribal Das have not filed any appeal. Be that as it may, the conviction and sentence passed upon the appellants under section 148 of the Pakistan Penal Code are set aside and appellants 2 to 4 be discharged from their bail bonds. Although the appellant No, 2 Raj Kumar Das was not given any separate sentence for an offence under section 324 of the Pakistan Penal Code, yet having regard to the facts and circumstances of this case and the evidence on record and also in view of our finding in this case that the disputed cane bush was in possession of the accused party, his conviction under section 324 of the Pakistan Penal Code cannot stand either, and is accordingly set aside.
24. In the above view of the matter the appeal of appellant No, 1 Joy Kumar Das is partly allowed as indicated above and the appeals of appellants 2, 3 and 4 are allowed in full.
25. SALAHUDDIN AHMED, J.--I agree.