ABDUL MANIR Vs. KADIR KHAN

JUDGEMENT

(1.) This is an application to revise a judgment and order of acquittal by a Magistrate of the First Class. The proceedings were instituted on a complaint by Shaikh Abdul Hamid alleging that the accused persons had assaulted him in consequence of a dispute regarding fruits of a toddy palm which Hamid claimed to be in his exclusive possession, while the accused claimed that it was the joint property of Hamid and his brothers. The complainant died on 26 September 1935, the trial at that date being still pending. The question having then arisen whether the accused should be charged under Section 304, I.P.C. (the original complaint was under Section 323) the District Magistrate transferred the case from the Second Class Magistrate before whom it was pending to the file of the Sub- divisional Officer, Sadr, who framed a charge under Section 325, I.P.C. against five persons, namely, Abdul Halim, Sharafat Khan, Kadir Khan, Mahfuz Khan and Shaikh Ismail. A charge was not framed under Section 304, because the medical evidence did not establish that the injuries inflicted on Abdul Hamid had been the cause of death. The Magistrate acquitted all the accused on the 27 January 1936, thinking that the exclusive possession of Hamid over the tree was not established; that those accused who assaulted him might have had a right of private defence; and that they should get the benefit of the doubt. Thereafter Abdul Manir, brother of the deceased complainant, moved the District Magistrate to direct a commitment to the Court of Session on a charge under Section 304, I.P.C. The District Magistrate considered this and two possible alternatives: to move the Government to appeal under Section 417, or to refer the case to the High Court; in revision. In the end he has declined to do either of these things.

(2.) Accordingly the petitioner Abdul Manir has moved this Court. I have obtained much help from the District Magistrate's careful examination of the case. It clears those points which may be said; to be-beyond contest or not fit to be raised in revision or settled by the findings arrived at and brings out in relief the point, and there is only one point, on which the petitioner can hope to succeed in revision. I entirely agree with the District Magistrate that to order a commitment under Section 304, I.P.C., cannot be contemplated. The District Magistrate's examination of the evidence further shows that as regards Ismail and Mahfuz, whose presence at the place of occurrence the trial Court considered doubtful, there is no reason to interfere as they would be ordinarily-entitled to the benefit of the doubt as to their presence. The District Magistrate's order also clearly exposes the error into which the trying Magistrate fell. This; consisted in thinking that because the exclusive possession of Abdul Hamid over the fruits of the trees was not clearly established the accused whose claim was that Hamid's brother, Abdul Alia, was jointly entitled to the fruits with Hamid, were entitled to set up the right of private defence as authorizing them to beat Hamid and to be given the benefit of a doubt as to whether the right of private defence existed or not. As the District Magistrate rightly points out, under Section 105, Evidence Act, when a question arises whether an accused person is entitled to the benefit of any of the general exceptions in the Indian Penal Code the burden of proof is on him and the Court is to presume the absence of circumstances bringing him within any of those exceptions; that is to say, it was for the accuseds to prove that Abdul Hamid had not exclusive possession of the palm tree; to prove-that Hamid was not acting in exercise of a bona fide claim of right but was committing a criminal offence of one of the descriptions mentioned in Section 97 secondly of the Indian Penal Code, that is to say, theft, robbery, mischief, or criminal trespass; to prove that the accused were defending their property against such an offence; and lastly, to prove that they did not exceed the right of private defence.

(3.) Even assuming that all the earlier points were answered in favour of the accused (and the questions raised have not been examined at all), the last point certainly required very careful consideration in view of the fact that Hamid had no fewer than thirteen injuries, while on the other side one person was injured and that was Sharafat who had two injuries only. Mr. Khursaid Husnain for the opposite party has drawn my attention to certain cases in which reference is made to the general practice of not interfering in revision with orders of acquittal. Such an interference by the High Court is reserved for exceptional circumstances and for cases in which there appears to have been a failure of justice due to some error in a matter of principle, but no hard and fast rule has been laid down in any of the decisions or in my opinion can be laid down. In the present case the trying Magistrate has failed to appreciate the questions of fact which he had to determine in order to adjudicate on the plea of right of private defence and therefore there has been no proper trial of these questions. That being so, there should be a re- trial of Halim, Sharafat and Kadir and the order acquitting these three accused is set aside. As regards the other accused I do not think that any interference is called for.