PARBHOO Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal appeal which though not in itself a matter of major importance, raises a question which, to my mind, is of such far-reaching consequence that it appears to me to be my duty to refer it to the Chief Justice with a recommendation that it be put up before a Full Bench of the Court. In order to explain the point which is causing me so much trouble I cannot avoid setting out some of the facts. It appears that, owing to the shifting of the course of a certain river, a piece of land had during the last few years appeared. It is this land which is the subject of the dispute which gave rise to the quarrel, and ultimately ended in the fight, which is the subject-matter of the present charge. In order to put the matter in the smallest possible compass, it is enough to say that there were two rival sets of claimants to the land which had been thus exposed by the changing of the river's course. For the sake of convenience these two rival sets of claimants can be called "Genda's party," on the one hand, and "Ganeshi's party" on the other hand. The one fact that we know for certain is that, at about 2 P.M., on 26 November 1940, Genda's party and Ganeshi's party met on the land in question and set about each other with lathis with the result that the four appellants at least out of Genda's party were injured, while several casualties occurred among Ganeshi's party, including Ganeshi himself, who ultimately died. Those are the facts we know for certain. As a result of this and of the subsequent cross information reports which were laid at the police station on the same evening, cross cases were brought against some eleven men out of Genda's party, on the one hand and some sixteen men out of Ganeshi's party, on the other hand. Out of Genda's party, the present appellants were convicted and now appeal and out of Ganeshi's followers five men at least were convicted and are the appellants in the cross appeal which will have to be dealt with in a moment.

(2.) So far as the present appellants are concerned, it must be taken as admitted that they or some one or more, of them actually dealt the blows which resulted in the injuries to Ganeshi's men. There is no doubt about that. No question of identity arises. There may ultimately be some question about "common intention," but that is not material at this stage. The real controversy in the case arises out of the appellant's plea of self-defence. The prosecution story was that Ganeshi's party went to the field in question and were wantonly attacked by Genda's party without any provocation being offered to them. If that were true, it would be an end of the matter, and no question of self-defence would arise. The appellant's version, however, was that they had already sown a crop in the land and were deliberately attacked by Ganeshi's men, in consequence of which they had in self- defence to employ their lathis to protect themselves. The controversy of fact, therefore, at the trial can be said to have revolved itself entirely round the question whether it was Genda's men who started it or whether, as the appellants said, it was Ganeshi's party who did the attacking in the first place with the result that the appellant had to defend themselves.

(3.) At the trial, apart from certain evidence as to whether the appellants had sown a crop in the land or not, a good deal of evidence was adduced for the purpose of trying to show who it was that began the fight. But when carefully examined, it appears that there were really only two actual eye-witnesses who have been able to say that they were present there and saw the beginning of the fight. They are the prosecution witnesses, Harpal, who is himself accused in the cross case, and Chamela, who also is involved in the other case. If the matter ended there and that were the only evidence before the Court, no doubt the Court would have been obliged to convict. But the appellants then adduced evidence on their own behalf in support of their plea of self-defence. Again, this plea of self- defence involved as its principal point, the question of who it was thafe started the fight. The defendants therefore, produced two witnesses, Bhagwat and Chhajju, who said that they saw the beginning of the affair and that it was Ganeshi's party who started assaulting Genda's men.