(Syed Jafer Imam and K. Subba Rao, JJ.)
Ashrafkha Haibatkha Pathan __________________________ Appellant;
v.
State of Bombay (Now Maharashtra) _________________ Respondent.
Criminal Appeal No. 38 of 1960†, decided on December 14, 1960
The Judgment of the Court was delivered by
Syed Jafer Imam, J.:—
1. This is an appeal by special leave by the appellant against his conviction and sentence of imprisonment for life passed by the Bombay High Court in an appeal against his acquittal by the Additional Sessions Judge of West Khandesh.
2. The appellant along with 4 others was tried by the Additional Sessions Judge for various offences under the Penal Code, 1860 including that of rioting as well as under Section 302 of the Penal Code for the murder of Ramdas Mahipat. The Additional Sessions Judge after considering the evidence came to the conclusion that the prosecution party were the aggressors and that they had tried to attack the accused persons. Accordingly, the accused had every right to protect their person against an unwarranted attack by a large crowd and if in trying to protect themselves from the aggressors the accused had inflicted injuries, they could not be said to be guilty of any offence. Concerning the case of the appellant he was of the opinion that as the appellant’s brother had been injured in the attack made on the accused by the prosecution party, the appellant had a reasonable apprehension that unless he did something to protect his brother from the angry mob he and his co-accused would be in danger of being beaten to death. In such circumstances the appellant could not be expected to weigh with a fine scale the extent of injuries which he should inflict in deterring the mob and therefore the appellant had not exceeded the right of private defence.
3. The State of Bombay filed an appeal in the Bombay High Court against the acquittal of the appellant and his co-accused. The High Court, after considering the judgment of the Sessions Judge and the circumstances of the case, came to the conclusion that the finding of the trial Judge that the prosecution had not proved that the accused were the aggressors was one which it would be difficult for the High Court to say that the view taken by him could not be taken on the evidence in the case. The High Court, accordingly, considered that it would not be justified in interfering with the order of acquittal passed by the trial Judge so far as the accused other than the appellant were concerned.
4. So far as the appellant was concerned, the High Court was of the opinion that the appellant had not acted in the exercise of the right of private defence. It was pointed out by the High Court that on the side of the accused it was only Accused 5 Ajabkhan, brother of the appellant, who was injured which injury was caused either by a stick or by throwing of brickbats. The deceased Ramdas Mahipat was not armed with any weapon and there was no evidence that he had even thrown any brickbat on any of the accused. It accepted the evidence of Police Patil Khandu, PW 2, that when Ramdas Mahipat tried to rescue Pandit, PW 3, from being assaulted by Ajabkhan, he was stabbed by the appellant with a knife. In the opinion of the High Court, therefore, it could not be said that the appellant had any apprehension of death being caused to himself or to his brother, Ajabkhan, Accused 5.
5. The prosecution story may now be stated. On 9-8-1957, at about 4 p.m., one Sobhatkhan Sherdilkhan and Nimba Sukhalal were coming from the direction of the river towards the village. When they had passed the Maruti Temple, they met one Tilibai who had borrowed some money from Sobhatkhan Sherdilkhan. Sobhatkhan stopped Tilibai and demanded the return of the loan immediately. Tilibai promised to do so shortly and got rid of Sobhatkhan. Tilibai then went towards the river and Sobhatkhan and Nimba went towards their home. When Tilibai returned to her house she complained to her son Bija that although Nimba was present when Sobhatkhan demanded his money, he had not said anything. Sometime later, when Nimba was near the Maruti Temple he met Bija who asked him why Nimba had not scolded Sobhatkhan for having stopped his mother. Nimba abused Bija and went away. Thereafter, Bija accompanied by Kabulkhan and Ali Ahmedkhan came to the house of Nimba and assaulted him and then went away. Nimba began to cry and on hearing his cry some of the prosecution witnesses went to him to make an enquiry. Nimba told these persons that Kabulkhan and Ali Ahmedkhan had come to his house and had beaten him without any justification. These persons then decided to ask Kabulkhan and Ali Ahmedkhan as to why they had unnecessarily beaten Nimba and they proceeded towards Kabulkhan’s house. They entered the Khatikgalli and were on their way to Kabulkhan’s house. When they reached the house of Ajabkhan, Accused 5, they found the accused persons at the trial sitting there. Amongst these persons were also Kabulkhan and Ali Ahmedkhan. They enquired from Kabulkhan as to why he and Ali had beaten Nimba unnecessarily whereupon the accused persons told them that that was none of their business and that having got up began to throw brickbats and stones on them and assaulted them with sticks. Prosecution Witness 3 Pandit, was beaten with sticks by Accused 4 and 5. Accused 1 and 3 threw stones and brickbats at them. When Accused 4 and 5 were beating Pandit, Ramdas Mahipat intervened in order to rescue Pandit whereupon the appellant whipped out a knife and stabbed Ramdas on the back. Ramdas fell down and became unconscious. After the assault a doctor was sent for who rendered first aid to Ramdas who was then removed to Taloda dispensary but succumbed to his injuries as soon as he reached the dispensary.
6. The Additional Sessions Judge after considering various contradictions in the versions of witnesses came to the conclusion that the witnesses were not telling the truth even in the matter of taking of a loan by Tilibai from Sobhatkhan. The defence had suggested that there had been some criminal intimacy between Tilibai and Sobhatkhan but the suggestion had been denied by the prosecution witnesses. The Additional Sessions Judge thought that some incident had taken place but that incident was not what the witnesses were willing to state in a straightforward manner. The Additional Sessions Judge pointed out that if Tilibai had really taken a loan it was not the first occasion on which she had taken such a loan and there was nothing in #Sobhatkan’s demand for the repayment which should make Tilibai feel slighted and humiliated. This was the finding of the trial Judge so far as the first part of the story of the prosecution is concerned.
7. With reference to the second part of the story of the prosecution the Additional Sessions Judge thought that Nimba was not telling the whole truth. In his opinion, the Police Patil Khandu Sakharam Marathe, PW 2, uncle of Nimba was attempting to show that he did not know what the intention of the prosecution witnesses was in proceeding towards the house of Accused 5, Ajabkhan, brother of the appellant. In his opinion, the probability was that on being told that the pathans were beating Nimba, the police patil rushed to his nephew’s house and on finding that the pathans had left, he was likely to have collected people to go to the pathan’s house. He was not therefore prepared to rely on the evidence of the police patil and hold that he went after the others had reached the place of occurrence. In the opinion of the Additional Sessions Judge the police patil relying on his own authority had thought of chastising the pathans for beating his nephew and for that purpose had collected a number of people. The evidence of the prosecution witnesses that they had gone to Nimba’s house to enquire as to why he was crying was an afterthought and it was the result of confabulation between the police patil and the witnesses. This police patil had also denied his statement, Ext. 7, that he had gone to Nimba’s house for enquiring and after Nimba had told him he went back to his house. #After considering various matters the trial Judge came to the conclusion that the police patil had collected a large crowd round him and with their help had proceeded to the house of the pathan and tried to wreak vengeance for their having assaulted Nimba. The trial Judge also distrusted the evidence of the prosecution witnesses when they refused to admit that they had any weapon with them. The final conclusion of the trial Judge was that the prosecution witnesses could not be believed when they stated that they went to Khatikgalli with only the intention to enquire from Kabulkhan and Ali Ahmedkhan as to why they had beaten Nimba. The indication was that the police patil being annoyed at his nephew Nimba being assaulted had collected a large crowd and proceeded towards the house of the pathans to teach them a lesson for their audacious act. If there was an unlawful assembly, it was not one on the part of the accused persons. The intention of the crowd on the side of the prosecution was not peaceful but to take revenge for the beating of Nimba. The evidence had established that brickbats were found lying in front of Accused 5, Ajabkhan’s house. The trial Judge was also not satisfied that the knife, #article 10, produced in the case was the knife which caused injuries to Ramdas Mahipat. In considering the case of the appellant the trial Judge had found that a large crowd had attacked the accused persons and that having regard to the manner in which the mob had gone to Khatikgalli and considering the injuries caused to Ajabkhan, Accused 5, it appeared that the appellant Ashrafkhan had a reasonable apprehension that unless he did something to protect his brother from the angry mob they would all be in danger of being beaten to death.
8. The High Court found that the presence of bloodstains on the ground near Ajabkhan’s house and a number of brickbats at that place did establish that an incident had taken place near the accused’s house. It did not find that the conclusions arrived at by the trial Judge that the prosecution witnesses were the aggressors and that they had gone to the house of the accused to beat them by way of revenge for assault on Nimba was incorrect. On the contrary, it considered that it would not be justified in interfering with the conclusion of the trial Judge that the accused were not the aggressors.
9. It is clear, having regard to the findings of the trial Judge, which have not been displaced by the High Court, that the prosecution evidence on the whole as to the manner and the origin of the occurrence was entirely unreliable and that the prosecution had not stated a correct version of the occurrence. That the prosecution party were the aggressors and had gone to attack the accused was a finding with which the High Court did not disagree. In these circumstances, we must proceed on the basis that there had been an attack by the prosecution party and the accused had acted in the right of private defence when injuries were caused by them to some of the prosecution party.
10. Concerning the part played by the appellant in the incident, the High Court has relied upon the evidence of the police patil that Ramdas Mahipat was stabbed when he went to rescue PW 3, Pandit, from further assault by the accused party. Ramdas Mahipat was unarmed and in the opinion of the High Court there was no circumstance from which it could be said that the appellant had any real apprehension that death would either be caused to him or to his brother, Ajabkhan, Accused 5. The High Court, however, made no reference to Ext. 7 which was the complaint filed by the police patil and is the earliest version on the side of the prosecution as to what had happened on the day of the occurrence. In that complaint the police patil had stated that after he had pacified Nimba he went to his house. Immediately thereafter, he saw (1) Ramdas Mahipat, (2) Pandit Chandu, (3) Dagadu Chindu, (4) Nimba Suklal, (5) Shamrao Baburao, running to the house of the pathan and that he ran after them when he saw a scuffle taking place in front of the house of Ajabkhan. The appellant had a knife in his hand. He struck Ramdas twice with it. In Ext. 7 the police patil made no reference to, Ramdas Mahipat coming to rescue Pandit from further assault and that it was at that stage that the appellant stabbed him. No doubt the police patil at the trial made out such a story but admitted that the contents of Ext. 7 had been read out to him and what was stated therein was correct. In cross-examination he admitted that he had told the police that he had seen Ramdas Mahipat and others running towards the house of the pathans and that he followed them. This statement of the police patil at the trial would show that Ramdas Mahipat was one of the members of the mob on the side of the prosecution. It is to be further noticed that the Additional Sessions Judge made a note on the deposition of this witness that during the course of cross-examination he had deliberately taken up a hostile attitude and that the defence lawyer had to repeat most of the questions before getting a straight answer and that he was evading straight answers. Pandit, PW 3, had stated in examination-in-chief that while he was being assaulted by Ajabkhan and Ali Ahmedkhan, Ramdas Mahipat had tried to rescue him when the appellant stabbed him with a knife. It was urged on behalf of the State that this witness would be in a better position to know the circumstances in which Ramdas Mahipat was stabbed by the appellant than anyone else in the occurrence. The cross-examination of the witness, however, makes it somewhat difficult to implicitly rely upon what he had stated in examination-in-chief. In cross-examination he had admitted that after he had been beaten, the Constable Daulat Singh, PW 5, had separated him and his assailants and that Ramdas had also tried to do this. The police patil, Narayan Zipru, Chhagan Harchand had also tried to do so. By that time the appellant came there. If this is correct, then the appellant arrived after several persons including the constable had succeeded in separating Pandit from his assailants. It is somewhat difficult to believe that at that stage the appellant arrived and stabbed Ramdas Mahipat. The Constable Daulat Singh, PW 5, in his examination-in-chief, stated that he and the police patil began to separate the opposite parties and that immediately thereafter the appellant stabbed Ramdas Mahipat. He made no mention of the appellant having done so when Ramdas was trying to rescue Pandit from further assault. The constable stated in cross-examination that the appellant was injured in the fight. He further stated that he tried to catch the appellant while he was rushing with a knife towards him and those around him, but was unable to do so successfully. There seems to be no good reason for thinking that when the constable and the police patil had successfully separated the parties that the appellant would go out of his way to stab a man who was taking no part in the attack on the accused persons. The evidence, to which reference has just been made and what was stated in Ext. 7, was not discussed at all by the High Court. It appears to us that the story that the appellant stabbed Ramdas when he was trying to rescue Pandit from further assault was an afterthought. It certainly found no place in Ext. 7 and the evidence, as given in court by Pandit, PW 3, in this respect is also unsatisfactory. Furthermore, if the stabbing had been done in the circumstances, now stated, it is surprising that the constable who has been described by the High Court as an independent witness makes no mention of this in his evidence.
11. It was urged on behalf of the State that whatever may have been found by the courts below regarding the general story of the prosecution as to what had happened on the day of the occurrence, the evidence of the constable, the police patil, Pandit, PW 3 and Chhagan Harchand, PW 9, would establish that it was the appellant who struck Ramdas Mahipat at a time when he could have no real apprehension that Ramdas Mahipat was likely to cause either death or any injury to him or to his brother, Ajabkhan, Accused 5. It is difficult to accept this submission because it is impossible to take out a part of the story given by these witnesses and act on it when the evidence generally given by them is unreliable and the case of the prosecution in the main had been falsified. It is impossible on the state of the evidence to give any clear finding that the appellant stabbed Ramdas Mahipat in circumstances which gave him no right of private defence. There had been, on the findings, an attack on the accused party by a large number of persons. There had been the throwing of brickbats. Ajabkhan, Accused 5, had been severely beaten. The appellant himself had been injured. If in the course of this attack the appellant had stabbed Ramdas Mahipat it could not be said that it had been established beyond reasonable doubt that the act of stabbing by the appellant was not in the exercise of the right of private defence.
12. In our opinion, it cannot be said that, on the evidence, the acquittal of the appellant by the Additional Sessions Judge was unjustified. We would accordingly allow the appeal and set aside the appellant’s conviction and sentence.
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†Appeal by special leave from the Judgment and Order dated 31-7-1958, of the Bombay High Court in Criminal Appeal No. 358 of 1958
