QASIM Vs. STATE

JUDGEMENT

(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.

(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.