NAIMUDDIN BISWAS Vs. EMPEROR

JUDGEMENT

(1.) The four appellants have been convicted of offences punishable under Section 326, I. P. C., and sentenced to various terms of imprisonment. The first two were convicted in connexion with an assault upon one Kalachand which eventually resulted in his death. The other two were convicted in connexion with an assault upon two persons named Meru and Palan. Various points have been taken by Mr. Basu on behalf of the appellants two of which deal with the general aspect of the case and the remainder of which relate to objections against specific portions of the charge delivered by the learned Assistant Sessions Judge. The first point taken is that the learned Judge ought to have proceeded with the case on the footing that the previous trial had finally delivered certain matters. What happened was that the appellants and various other persons were put on their trial not only on the present charges, but on charges under Section 148 and Section 304/ 149, I. P. C. The result was that the four appellants were convicted under Section 326, but the jury brought in a verdict of not guilty against the other persons and on the other charges. The appellants then appealed to the learned Sessions Judge who ordered a retrial.

(2.) The contention of Mr. Basu is that previous verdict really amounts to this: that the occurrence took place in accordance with the defence theory and the only thing which the learned Judge ought to have put before the jury was that they should consider whether the appellants had exceeded the right of private defence. There is of course no foundation for this argument. All that the previous trial amounts to is that the appellants have all been acquitted of rioting. For all we know to the contrary, the jury may not have been satisfied that there were as many as five persons in the attacking party. The learned Judge was clearly right in putting the case before the jury in the way he did. Then it was said that the defence case with regard to the right of private defence was not properly put before the jury at all. We have reached the conclusion that it was really put in an unduly favourable light, because the learned Judge left it open to the jury to find that the occurrence took place in accordance with the defence version although there is no evidence in support of that conclusion. Briefly the two versions were as follows:

(3.) The complainant Irad Mandal held certain land under one Srimanta Kundu as a Bargadar. On the day of the occurrence he and some relations and labourers were clearing jungle from a portion of his land with a view to preparing it for sowing Kalai seed. They were then attacked by the appellants and others headed by the Naib of the Putia Raj and assaulted with a view to depriving the complainant of the possession of the land. The defence made a case that the occurrence did not take place on Irad's land at all, but at a place called Bangalpara where the accused party were attacked by the complainant's party and a scuffle took place resulting in injuries caused to persons on both sides. Now if this defence version be true there must have been evidence available to establish it. But the defence did not examine a single witness. Nothing was elicited in the cross-examination of any of the prosecution witnesses to prove that the occurrence took place in Bangalpara. There was, therefore, no evidence at all which would have justified the jury in accepting this view. Nor was there any evidence upon which any sort of claim to the right of private defence could be founded. The learned Judge should, therefore, have directed the jury that there was no evidence at all to support any right of private defence. It is perfectly true that some of the evidence given by certain police officers might support an inference that the occurrence did not take place on Irad's land. The learned Judge was very careful to tell the jury that, whatever view they might take of the defence version, they could not convict the accused unless they were satisfied as to the truth of the prosecution version as to the place of occurrence. There was clearly no misdirection causing any prejudice to the appellants in this aspect of the case.