KALU MANDAL Vs. THE STATE

JUDGEMENT

(1.) THE appellants Kalu Mandal, Yasin Mandal, Abdul Sattar Mandal and Fakir Ahmed have been found guilty of committing the offence of rioting and sentenced to rigorous imprisonment for one year. They have also been founds guilty of having committed culpable homicide punishable under the first portion of Section 304, Penal Code, and sentenced to undergo rigorous imprisonment for three years. The accused Golam Mandal has been found guilty of abetment of the aforesaid culpable homicide and sentenced to undergo rigorous imprisonment for three years. The appellants were tried by Sri N. Chakravarty, Sessions Judge of Nadia and a jury. Against this order of conviction and the sentences the present appeal has been laid.

(2.) THE case for the prosecution briefly is as follows : On llth April 1949, the appellants together with one Hasim, who is absconding, came upon the land of one Maharani Bibi and forcibly plucked coconuts from the trees growing thereon. Maharani Bibi and a relation of hers called Ambar, since deceased, protested. Upon this Ambar was set upon and beaten with various weapons by some of the appellants and as a result of the beating he died. Immediately after the beating prosecution witness a Shamsul Huq went to the thana and lodged an information which was recorded in the General Diary by literate constable Prafulla Sen, 'prosecution Witness 9, there being no other officer there. This General Diary entry is Ex. 2. Ambar was attended by doctors but he died. Thereupon another information was lodged at about 3 A. M. which was treated as the first information report by Ramani Mohan Bhattacharjee the officer in charge. It is Ex. 3. Thereafter the investigation started. There was a post mortem on the body of Ambar and it was found that he died as a result of the injuries received. These in short are. the facts upon which the case for the prosecution depends. The defence taken is as follows: Maharani Bibi has only a very small share in the land. Eight annas of that land belonged to, one Panchkari Kazi. On his death it devolved upon his sister. That sister died and her daughter inherited a portion of the land and sold her share to Hasim, son of Kalu. Hasim as I have stated before, is absconding. The appellants went on the land legitimately and they were resisted by Ambai and others. There was a fight in the course of which Kalu got an injury on the head. Broadly speaking, the defence taken may be said to consist of a plea of the right of private defence of property and person. I may state here that no evidence was adduced on behalf of the defence either as regards the occurrence or as regards the claim of Hasim to a portion of the property with respect to which the occurrence is said to have taken place.

(3.) I wish in this connection to point out certain glaring defects in the charge. It would be tidious and it would take a very long time if I were to point out all the defects in the charge; they are far too numerous. The first point which I would impress upon the learned Judge relates to the way in which he has treated the entries made in the General Diary and in the first information report. If the learned Judge had taken some slight trouble to acquaint himself with the important provisions of the Evidence Act he would have been aware of the fact that the General Diary entry and the first information report cannot be dealt with as substantive evidence. They may be considered if or the purposes of corroboration Under Section 157, Evidence Act, if all the provisions thereof are complied with. In this connection I would point out that they may be put in evidence to corroborate only the testimony of the person who gave the information incorporated in the General Diary or the first information report and not for the purpose of corroborating the evidence of any one else. They also may be considered for the purpose of contradicting the evidence of the person who gave the information incorporated in the General Diary or the first information report in accordance with the provisions of Section 145, Evidence Act.