Decided on April 30,1952

QASIM Appellant
STATE Respondents


- (1.)THESE are two connected matters arising out of the same trial. The appeal is by Qasim Ali and twentyone others against their conviction under various sections of the Indian Penal Code by the Sessions Judge of Jaipur District. The reference is by the Sessions Judge with respect to five accused, namely, Qasim, Abdul Ghani, Kurban, Narsia and Shera who have been sentenced to death.
(2.)THE case relates to certain incidents which took place in Malpura on the 21st of June, 1930, during the course of a Hindu Muslim riot. . THE story for the prosecution is briefly this. One Moti, son of Mangilal, »s said to have been beaten by some Muslims on the morning of the 21st of June, 1950. A report of this incident was made in Thana; later Mangilal went and complained about the high handedness of Muslims to Damodar Lal Vyas, an advocate of Malpura. He also complained that the police was not showing sufficient interest in the matter. In the meantime, there was an altercation between Sarwan, P. W. 4 and one Anwar Ali in front of Damodar Lal's house. Damodar Lal stopped the trouble from spreading further and took Anwar Ali inside his house. In the meantime, Hasan Mujataba, who is also an advocate, heard the news about Anwar Ali who is his uncle-in-law. He, therefore, came to the house of Damodar Lal sometime before midday. He then found a crowd of about 125 Hindus there. He told Damodar Lal that the mar-peet which had taken place in the morning between Moti Lal and some Muslims was a personal affair and had no communal tinge in it. He, however, added that communal tinge was given to that mar-peet by some mischief makers belonging to the Rashtriya Swayam Sewak Sangh. It appears that there were some men of that Sangh in the crowd and they objected to the remark of Hasan Mujataba. THEreupon Damodar Lal again intervened and took Hasan Mujataba also inside his house. By this time, information came that Muslims were gathering in a place called Haihai in Mohalla Saiyadan. Damodar Lal, therefore, realized that matters were becoming serious and sent information to the officer-in-charge of the police Station. THEreupon Sub-Inspector Shaukin Singh came to his house and prevailed upon the Hindus who were in front of Damodar Lal's house to disperse. After this, the Sub-Inspector left for Hathai to disperse the Muslims who were said to be collecting there. Hasan Mujataba and Anwar Ali also left soon after. Shortly after these two had gone, Damodar Lal came to know that Hasan Mujataba had been attacked by the Hindus. He then went in the direction in which Hasan Mujataba had gone and found him injured at the shop of one Nathulal. Anwar Ali had also been injured and came to that shop. Arrangements were then made to take Hasan Mujataba and Anwar Ali to the hospital. It is said that the news of the attack on Hasan Mujataba was conveyed to the Muslim crowd at Haihai which Sub-Inspector Shaukin Singh was trying to reassure. On receipt of this news, many Muslims, armed with lathies and pharsies started to move towards the Hindu Mohallas. THE Sub-Inspector asked them to stop but they did not listen to him. THEreupon he warned them that if they moved any further towards the Hindu Mohallas, he would have to open fire. This threat had apparent effect and the Muslim mob dispersed. THE Sub-Inspector then left for the place where Hasan Mujataba was said to be injured. Barkat Ali accused, father-in-law of Hasan Mujataba also arrived there and wanted to go back to Haihai. THE Sub-Inspector, however, did not allow him to go that way and then arranged to take Hasan Mujataba and Anwar Ali to the hospital. By the time the Sub-Inspector returned from the hospital, he came to know that Hindus had been attacked. THEreupon he sent a report about it to the Thana which is Ex. P. 27.
The prosecution case further is that after the Sub-Inspector had left and the Muslim crowd at Hathai had apparently dispersed, the crowd again collected and proceeded towards Hindu Mohallas in order to take revenge for the attack on Hasan Mujataba, who is said to be a leader of the Muslims. The crowd first went to Mohalla Bara-gaon and attacked five Hindus there. The crowd consisted of about 50 or 60 persons and it is said that from Bara-gaon most of this crowd proceeded to Mohalla Khandelwal. The way taken by the crowd was not the direct way but a circuitous route. On this way, the crowd chased one Ram Narain P. W. 25, who managed to escape by running into the house of one Ganesh, P. W. 10. The crowd then turned into Mohalla Khandelwal and first attacked Bhanwarlal who managed to escape by getting into the house of his son-in-law. Then it attacked Bachhraj who was coming out of the house of his relation. After having killed Bachhraj, the crowd attacked Mool Chand, Badri and Suwa Lal who were sitting in front of Suwa Lal's house. Suwa Lal and Badri, however, managed to save themselves by running into Suwa Lal's house, but Mool Chand was caught and killed. Qasim was actually responsible for the death of Bachh Raj by giving him a pharsi blow. | Bachh Raj tried to escape by running into the Nohra of Ganesh but Narsia had caught him and threw him down. Mool Chand was caught by Shera before he could enter the house of Suwa Lal and then Kurban gave a pharsi blow to Mool Chand who ran some distance followed by the Muslims and then Ghani gave another blow with the pharsi to Mool Chand who fell down dead. The Muslim crowd then went away.

We have already mentioned that the Sub-Inspector came to know that some Hindus had been attacked. He, therefore, sent for help from the Thana and Brahma Nand, a prosecuting Sub-Inspector and Basant Ballabh, Assis-tant Sub-Inspector came to Mohalla Khandelwal. They found Bachh Raj and Mool Chand lying injured and senseless. They arranged to take these persons to the hospital. The investigation of the case was then taken up by Circle Inspector Mohan Singh and most of the accused were arrested on the 22nd of June. Four of the prosecution witnesses were examined on the 21st of June while six were examined on the 22nd of June after the arrest of most of the accused. Eventually, thirty four persons were sent up before the Committing Magistrate. Of these,seven were discharged and twenty seven were committed for trial before the Sessions Court. The Sessions Judge has acquitted five and convicted twentytwo persons and these are the appellants before us. Of these three have been sentenced under sec. 302 and eleven under 302 read with sec. 149, five have been sentenced to death while nine have been sentenced to transportation for life, the remaining eight have been sentenced to five years' rigorous imprisonment under sec. 326 read with sec. 149 and other sections of the Indian Penal Code. The appellants did not deny that there was rioting in Malpura that day. Their case, however, was that they had not taken part in the rioting and were not responsible for the deaths of Bachh Raj and Mool Chand or for the injuries caused to the five Hindus of Baragaon. All of them have pleaded of alibi some sort. Further, one defence witness has been produced 10 show what exactly happended in Mohalla Khandelwal and we will deal with this evidence at its proper place.

So far as the incidents in front of Damodar Lal's house are concerned, it has not been challenged by learned counsel for the appellants who has accepted the statement of Damodar Lal in that connection to be true. Further the evidence of Sub-Inspector Shaukin Singh also shows that the Muslims who had collected at Hathai had apparently dispersed when he returned from there to find out what had happened to Hasan Mujataba. There is, however, no doubt that after the Sub-Inspector had left Hathai, the crowd of Muslims, which had appa-rently dispersed, reassembled and went to Mohalla Baragaon and attacked Hindus there. The case for the prosecution may be divided into two parts, one relating to Mohalla Baragaon and the other relating to Mohalla Khandelwal. The prosecution story is that more or less the same crowd which had made the attack on Hindus in Mohalla Baragaon proceeded to Mohalla Khandelwal and killed Bachh Raj and Mool Chand there. It is on this basis that there has been one trial of these offences which took place in Mohalla Baragaon as well as in Mohalla Khandelwal. But though on this basis joint trial may have been justified, the evidence about the incidents at Mohalla Baragaon is of ten witnesses who say nothing about the incidents which took place after the crowd left Mohalla Baragaon, while the evidence about the incidents at Mohalla Khandelwal is of 7 witnesses who dispose only to the incidents of that Mohalla and know nothing about the incidents in Mohalla Baragaon. Though, therefore, the two incidents may have been the result of an attack by the same crowd justifying a joint trial, the evidence about the two incidents is entirely different and will have to be judged separately about each.

It has been urged that this case is the result of a Hindu-Muslim riot and the evidence of Hindu witnesses against Muslim accused and vice versa should be looked with suspicion. The principles, however, governing the valuation of evidence in communal riot cases are the same as in other cases. The mere fact that the witness in a communal riot case is a Hindu and the accused is a Muslim and vice versa is no reason for looking at the evidence of the witness with suspicion. But, at the same time, it is undoubted that a further factor supervenes in such cases, namely religious fanaticism and it is the duty of the court to examine the evidence of witnesses critically and with care and satisfy itself that the evidence is true. If the court is satisfied after a critical and careful examination of the evidence that it is true, the fact that the witness is of one community and the accused of another should make no difference to the conviction of the accused on such evidence. We shall, therefore, examine the evidence in this case keeping these principles in view, first with respect to the incidents in Mohalla Baragaon and then with respect to what took place in Mohalla Khandelwal.

There are ten witnesses about the incidents in Mohalla Baragaon, of which five have been actually injured. The five injured persons are Ramdeo son of Pratap, Jamunalal, Chatra, Kalyan son of Shribux and Lakshmi-narain. The other five are Ramdeo son of Kaloo, Badri son of Moti, Ram-chandra, Kanhaiyalal and Ladhu. These witnesses all live in Mohalla Baragaon. The story which they have given is that at about midday or 1 P. M. a crowd of Muslims variously estimated between 40 and 50, armed with lalhies, pharsies and axes came into Mohalla Baragaon and started beating Hindus who were there. They gave beating to five Hindus whose names have already been mentioned and thereafter went away towards Mohalla Khandelwal. There is, in our opinion, no reason to disbelieve the evidence of these witnesses as to what happened in Mohalla Baragaon. Five of them have been actually injured while the other five live in that very Mohalla and must have seen what happened in the open space in the middle of the Mohalla. Most of these witnesses were examined by the Police either on the 21st of June or the 22nd of June. It is true that no report of the incident in Mohalla Baragaon was actually made by any of these persons; but information had already reached the police about the attack on some Hindus and one of the injured persons Jamunalal had been examined on that very day, namely 21st of June. On the whole, therefore, we are of opinion that so far as the incident at Baragaon is concerned, the evidence of these witnesses is true and should be believed.

It has been urged that there is a mystery attaching to the investigation of this case as appears from the statements which were made by the witnesses in the committing court. Most of the witnesses stated in the commit* ting court that their statements had been recorded by Sub-Inspector Shaukin Singh. But the statements which were available in the diary were found to be recorded by a clerk under the supervision of Circle Inspector Mohan Singh whose signatures they bore. The diary showed that the investigation was done by Circle Inspector Mohan Singh and statements of witnesses were recorded under his signature. It has further been urged that the statements recorded by Sub-Inspector Shaukin Singh were the earliest statements made by the witnesses and those statements are not now available. Reliance had been placed in this connection on In re. Sugali Latchigndu and others (A. I. R. 1952 Mad. 229 ). In that case it was held that the destruction of the notes of statements of witnesses constituted a flagrant violation of the mandatory provisions of sec. 162, Criminal Procedure Code and since the earliest statements made by important eye-witnesses were never made available to the accused, an irresistible inference that the accused were prejudiced in their trial arose and it could not be said that the accused had a fair trial. The accused must, therefore, be acquitted as no useful purpose could be served by ordering a retrial.

The alleged mystery in this case is, however, explained by the "evidence of Sub-Inspector Shaukin Singh and Circle Inspector Mohan Singh. Their evidence shows that it was really Circle Inspector Mohan Singh who was in charge of the investigation; but as he had been posted to this circle only two days before this incident took place and did not, actually take over Charge till about three days later, Sub-Inspector Shaukin Singh, who was the officer-in-charge of the police station, was throughout associated with him in the investigation. It also appears that sometimes the witnesses were questioned by Sub-Inspector Shaukin Singh also in the presence of the Circle Inspector and, in any case, Sub-Inspector Shaukin Singh was present when the witnesses were examined. Under these circumstances, it appears to us that the witnesses who did not know Circle Inspector Monan Singh, thought that they were being examined by Sub-Inspector Shaukin Singh. But there is no reason to doubt the statement of these two police officers to the effect that it was really Circle Inspector Mohan Singh who conducted the investigation and under whose supervision the statements of witnesses were recorded. Under these circumstances, there were no earlier statements of witnesses which could be said to have been dest-royed. In the Madras case, it was admitted by the Sub-Inspector that he had recorded statements earlier and that those statements had been destroyed. It was also admitted that the Circle Inspector, who later conducted the investigation, had never seen those statements recorded by the Sub-Inspector. It was in those circumstances that the learned single Judge held that the accused must be acquitted as there had been prejudice to them and there had not been a fair trial. In the present case, the facts are different and there were no earlier statements recorded by sub-Inspector Shaukin Singh which have been destroyed. The evidence of Circle Inspector Mohan Singh shows that whatever statements were recorded are all to be found in the diary in which they were put down under his supervision. The Madras case, therefore, has no application to the facts of the present case. We may, however, add with due respect that we are not prepared to go as far as the Madras case. It is no fault of a witness if some police officer records his statement and destroys it, and later his statement is taken by another police officer who continues the investigation. There is no reason, therefore, why the evidence of such a witness should be discarded altogether when statements to the police made by the witnesses, though at a slightly later stage are available. Further, the view taken in this case would put a great deal of power in the hands of the police officers which can be abused. If a police officer, who may be a Head Constable and might have gone to the spot at the earliest opportunity, desires that a case should result in acquitta, all that he has to say is that he had recorded the statements of the eye-witnesses and had destroyed the notes. The result of this view would be that the accused would have to be acquitted, even though the evidence otherwise clearly proves their guilt. It may be possible to deal with the police officer concerned departmentally; but a good deal of damage would be done by unscrupulous police officers on the basis of this view. We are, therefore, not prepared to go as far as the Madras case even if it were to apply to the facts of this case. We would prefer to leave the matter to the discretion of individual judges depending upon the facts and circumstances of each case instead of laying down a general rule like that in the Madras case. However, as in this case, the facts are different and the alleged mystery has been explained by the evidence of these two police officers, there is no reason to discard the testimony of the Bara-gaon witnesses on account of any suspicion about the investigation.

We now turn to the evidence about the murder. There are four witnesses who depose to have seen the actual attack, namely Suwa Lal, Badri son of Kalyan, Bhanwar Lal and Sarwan. Two of these namely Badri and Bhanwar Lal do not belong to this Mohalla and were chance witnesses. The other two Suwa Lal and Sarwan are certainly residents of this Mohalla and their evidence is not open to the same attack as the evidence of Badri son of Kalyan and Bhanwar Lal. We propose to examine the evidence of each of these witnesses to see if full reliance can be placed on their statements.

Badri s/o Kalyan is a chance witness. He is also a cousin of Mool Chand deceased and is to that extent an interested witness. He is connected with Suwa Lal in asmuch as his brother's son is engaged to Suwa Lal's daughter. He says that he had come to meet Suwa Lal after his return from pilgrimage to Badrinarain and was talking to him when the Muslim mob arrived. He further says that Mool Chand had come to call Sarwan and had sat down on Suwa Lal's chabutri to talk to him and Suwa Lal. Considering his connection with Suwa Lal, he might have come to see him; but the evidence that he has given appears to us to be difficult to believe and we, therefore, feel that we should not place any reliance on a chance witness who also is a relation of the deceased in these circumstances. He says that the Muslim mob was shouting "kill, Kill" and chasing. Bachh Raj. As Bachh Raj reached the Nohra of Ganesh, Qasim gave him a pharsi blow on the head and Narsia caught him and threw him down. Thereafter the mob turned towards those who were sitting on Suwa Lal's chabutra. It seems difficult to believe that when these people had seen a mob of Muslims some distance away and he had also seen the mob attacking Bachh Raj, they did not run immediately into the house of Suwa Lal and thus save themselves from attack. Further the evidence of this witness is that when the mob turned towards him, Suwa Lal was the first to get into the house, Badri followed immediately afterwards and one of the mob, namely Shera was able to catch hold of Mool Chand before he got into the house. He, however, further says that he was injured by one member of the mob before he managed to close the door. Here again it is rather difficult to understand how the witness could have been injured by any member of the mob at all. He has definitely stated that he had entered the house of Suwa Lal when the crowd of Moham-madans was four or five yards from the place. Under these circumstances, it was hardly possible that he could have been injured by any member of the mob. It seems to us, therefore, that he really got injured somewhere else and because he is a relation of Mool Chand, he places himself here and says that he got injured at Suwa" Lal's house in order to be able to give evidence as an eye-witness. The evidence shows that Suwa Lal had gone up to the roof of the house and from there saw what happened further but this witness did not go up to where Suwa Lal was. It further appears that when Suwa Lal came down, he did not meet this witness in the house and he appears to have disappeared immediately after the mob had left and was not seen by Suwa Lal when he came to where the deceased persons were lying. Here again it is difficult to believe that any person situated as this witness was, could disappear so quickly and that also shows that he was really not present at Suwa Lal's hous;. It is true that this witness was examined by' the police on the same day, but considering that he is a relation of one of the deceased persons, it would not have been very difficult to induce him to come forward atonce to make a statement. On a careful consideration, therefore of the evidence of this witness, we are not prepared to place any reliance on him.

The next witness is Bhanwar Lal. He is also a chance witness. He says that he was at his son-in-law's house when he was chased by the crowd and ran inside. He could not see anything from the roof of his son-in-law's house. Therefore, while a mob of about fifty Muslims was down below and had gone only a few yards beyond his son-in-law's house, he took the risk of going across a fifteen or sixteen feet wall which is only about six feet high and then going up to the roof of Bhoora Nal. We find it difficult to believe that that would be the normal conduct of a person who had Just saved himself from being killed. He has also come forward with the story that the attack on Mool Chand was simultaneous with the attack on Bachh Raj. He probably realized that if the attack on Mool Chand followed the attack on Bachh Raj, there was ample time for Mool Chand and others to get into the house of Suwa Lal and close the door and save themselves. We have already pointed out that this is not the statement of Badri s/o Kalyan who says that the attack on Mool Chand began after the attack on Bachh Raj. Further the evidence of this witness is to the effect that the police arrived on the scene not very long after the mob had gone away. At that time, Suwa Lal and the witness were present near the injured persons. He further says that Sarwan as well as Suwa Lal had gone with Bachh Raj and Mool Chand to the hospital when they were taken there by the police. His evidence, therefore, clearly shows that he as well as Sarwan and Suwa Lal witnesses had met the police officers soon after the incident and had accompanied them to the hospital. But he admits that none of them told the police officers that they had seen Bachh Raj and Mool Chand being attacked. We should have expected that these persons would immediately tell the police that they had seen the attack on the injured persons who were being removed to the hospital. It was not necessary for the police officers to take down their statements at once; but the fact that they were eye-witnesses should have come to the knowledge of the police officers who arrived on the scene immediately afterwards. But the police officers also do not say that anybody told them at the spot that he had witnessed the incident. The evidence of this witness also is to the effect that no such information was given to the police at the spot. The failure, therefore, of this witness as well as of others to say to the police officers, whom they met soon afterwards, that they had seen the incident casts a doubt on their testimony. Further, this witness signed the panchayatnama prepared in connection with the death of Bachh Raj at the hospital. But even then neither he nor Sarwan told the police officer, who were preparing the panchayatnama, that they were actual eye-witnesses to the murder. This is another circumstance which throws doubt on the evidence of this witness. It further appears that he was not examined till the 24th of June. He has explained that that very night he got news that his sister's son was ill in Rajpura. He, therefore, went away very early in the morning to Rajpura and returned on the 24th. We must say that this explanation appears to us to be very thin. Giving therefore, out earnest consideration to the evidence of this witness, we feel that it is not possible to rely upon him.

The next witness is Sarwan. He says that Mool Chand had come to call him and had set down at the door of Suwa Lal when the Muslim mob came. He is a resident of the locality and to that extent does not suffer from the defect with which Badri s/o Kalyan and Bhanwar Lal suffered. It may, however, be mentioned that this is the man who had altercation with Anwar Ali in front of Damodar Lal's house and is also an accused in the case relating to the attack on Hasan Mujataba. He has, therefore, a particular grouse against Muslims and to that extent his evidence is to be accepted with caution. He went with the police officers who removed Mool Chand and Bachh Raj to the hospital and was also a witness of the panchayatnama relating to Bachh Raj's death. But he also never said a word to the police officers at the spot or to the police officer who prepared the panchayatnama that he had actually seen the murder being done. We cannot understand why he withheld that information. He was examined on the 22nd of June and then he came forward with the statement that he was an eye-witness of the murder. His failure to say atonce on the 21st when he had two occasions for saying so that he was a witness to the incident, coupled with the other circumstances which we have pointed out, makes us doubt his statement. The last witness is Suwa Lal. It is undoubtedly true that the murder took place at his door and to that extent he is a natural witness. But his daughter is betrothed to Mool Chand's nephew and he would, therefore, be an interested witness. He has also said that after Bachh Raj had fallen down, the mob ran towards them. His evidence, therefore, also suffers from the defect that these three persons, when they saw Bachh Raj being attacked, did not immediately take steps to run into the house and save themselves but waited till the mob turned on them. That is hardly normal conduct and disposes us to doubt the statement of this witness. Further he admits that Mool Chand and Bachh Raj were taken to the hospital while he was there. He must, therefore, have met the police officers who were arranging for the removal of Mool Chand and Bachh Raj. But he also did not say a word to these police officers then and there that he had seen the attack. His statement was not taken down in the police diary on the 21st of June. But an inspection memo of the spot was prepared by Circle Inspector Mohan Singh on the 21st which is nothing but more or less the statement of this witness. In that statement, he has mentioned the parts played by Qasim and Narsia in the attack on Bachh Raj and by Shera and Kurban Ali in the attack on Mool Chand but he has made no mention of Abdul Ghani who, according to him, gave the final blow to Mool Chand. His evidence is certainly the best out of these four witnesses. But considering that he is connected with Mool Chand and also considering that he did not disclose immediately to the police officers who arrived on the scene that he had witnessed the occurrence, we are not prepared to convict the accused on his solitary testimony.

(3.)FURTHER, there is another circumstance which makes the evidence of all these four witnesses doubtful so far as the attack on Bachh Raj is concerned; and if their evidence is disbelieved with respect to the attack on Bachh Raj, it would be unsafe to rely upon them with respect to the attack on Mool Chand. All these witnesses say that Bachh Raj was given one blow with a pharsi We should have expected an incised wound on the head of Bachh Raj. But the medical evidence shows that Bachh Raj had a lacerated wound above the left ear. Dr. Sharma says that ordinarily such an injury is caused by a blunt object. He has, however, added that such an injury could also be caused by a heavy sharp object with rough edges, that is, serrated edges. It is, therefore, very unlikely that the injury found on the deceased Bachh Raj could have been caused by an ordinary pharsi which is a sharp instrument and should cause an incised wound. The likelihood, therefore, is that Bachh Raj was injured by a blunt weapon and the evidence of these witnesses to the effect that he was hit with a pharsi, is, therefore, open to grave doubt. FURTHER, considering the place of injury, the Doctor was of opinion that it must have been caused from the front. The evidence of these witnesses, however, is that Bachh Raj was attacked from behind. The inconsistency with the Doctor's evidence was realized when the witnesses came to give evidence in the Court of Sessions and, therefore, they started saying that Bachh Raj had just turned to look behind when he was attacked. We do not say that it was impossible for Bachh Raj to have turned round. But when there is doubt about the instrument and also about the manner in which the injury was caused, it becomes very difficult to rely on the evidence of these eye-witnesses. FURTHER, if the evidence of these eye-witnesses is not raliable with respect to the attack, on Bachh Raj, it cannot be relied upon with respect to the attack on Mool Chand.
There only remains now to deal with the evidence of three other witnesses. These are Ganesh, Ram Narain and Badri s/o Shri Bux. They did not see the actual attack. They have been produced to show that the mob which was in Mohalla Baragaon came to Mohalla Khandelwal. So far as Badri s/o Shri Bux is concerned, he lives in Mohalla Khandelwal and says that he saw a mob of thirty or forty Mohammedans entering the Mohalla from the side of Ganesh Khati's house armed with pharsies and axes. He also says that Bhanwar Lal, P. W. was sitting in front of his son-in-law's house at the time. He had, however, to admit in cross-examination that he did not see Bhanwar Lal and that he merely stated that Bhanwar Lal was sitting there because people were saying so and he thought that it must be correct. In the end, he was driven to admit that he did not see Bhanwar Lal on that day at all and no body was sitting in front of the house of Bhanwar Lal's son-in-law. Obviously, this witness is prepared to say anything and no reliance can be placed on his evidence.

Then we come to Ram Narain and Ganesh whose evidence has to be taken together. According to Ram Narain, he was chased by a Muslim mob from west to east and took refuge in the house of Ganesh. According to his statement, the mob was to the north of Ganesh's house. Ganesh, however, had said in his statement in the committing Magistrate's court that the mob had come from the south of his house chasing Ram Narain. In the Sessions Court, he tried to change, his statement and bring it into line with Ram Narain's. In view, however, of this contradiction between the two, we find it difficult to place any reliance on either of them. If Ganesh's statement is true that the mob came from the south, it would mean that the mob which first made the attack on Mohalla Baragaon took a circuitous route, for the direct way from Mohalla Baragaon to Mohalla Khandelwal which the mob was likely to take would not be from the south of Ganesh's house. On a careful consideration, therefore, of all the circumstances, we are not satisfied that these witnesses about the incident in Khandelwal Mohalla are telling the truth. Under these circumstances,those accused,who have been convicted under sec. 302 of the Indian Penal Code, must be acquitted. We are not prepared to come to a categorical finding that the persons, who attacked Bachh Raj and Mool Chand in Mohalla Khandelwal, were not more or less the same as those who took part in the incident at Baragaon. But the matter is, at any rate, doubtful if one were to believe the evidence of Ganesh, and we would leave it at that.

It only now remains to consider the evidence of alibi. We have seen that evidence and are not prepared to rely on it. It would be a waste of time to consider the evidence of the various defence witnesses one by one. The fact that some of the defence witnesses are Hindus gives no greater sanctity to their evidence than would be the case if they were Muslims. It is the nature of that evidence which matters and we not satisfied with the statements that they have made.

We may briefly refer also to the evidence of Amir Ali. This man has come forward with a story that there was a fight between Mool Chand, Bachh Raj and three other Hindus on one side and four Muslims on the other and the suggestion is that the deceased were killed in that fight. It is, enough to say that he has taken care to name only those Muslims who were dead at the time he gave evidence. It was very easy for him to put the entire blame on dead man. We are satisfied that his evidence is false and we place no reliance on it.

It now remains to consider what offences have been made out against each accused in connection with the incident at Mohalla Baragaon. All the accused were charged under secs. 147 or 148 and 325 and 326 read with sec. 149 of the Indian Penal Code. Besides that some particular accused were charged with particular offences in connection with the attack on particular persons. It was, in our opinion, unnecessary to charge particular accused with particular offences under secs. 323, 324, 325 and 326 of the Indian Penal Code when there was a general charge against all of them under secs. 325 and 326 read with sec. 149 of the Indian Penal Code. The learned Sessions Judge has convicted all the accused under secs. 326/149 but has acquitted all of them under sec. 325 read with sec. 149. The conviction under sec. 326, however, cannot stand because it was based on an injury on the head of Chatra. The Doctor, when he was examined said that the injury was grievous as it was likely to leave a scar and had been caused by a sharp weapon. The Doctor was examined in February, 1951. On that date Chatra was not present. Chatra was examined a month later in March, 1951. The Sessions Judge then noticed that there was a very dim scar left at the place where the injury had been caused on the head. It can hardly be said that there was permanent disfiguration of the head in this case and the accused who took part in the incident at Baragaon should properly have been convicted under sec. 324 read with sec. 149 of the Indian Penal Code.

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