MAHAJAN J - (1.) :
(2.) THESE two appeals under Art. 134 of the constitution have been preferred against the judgment of the High court of Judicature at Nagpur, dated 5/2/1951, setting aside the acquittal of the appellants on charges of rioting and murder, and convicting them for the same. The facts are these: One Wazir Ali was the lambardar Malguzar of mauza Dhadi, a village in tehsil Arvi of district Wardha (Madhya Pradesh). His widow Wazdi Begum succeeded him after his death to that office. She died in 1947, and the malguzari of the village was inherited by her nine sons, viz. Hasan Ali (P. W. 22), Rashid Ahmad (P. W. 23), Asadali, Bashir Ahmad, Nazir Ahmad, Ashraf Ali, Hafiz Ali, Aman Ali and Shiraz Ahmad. The last three were murdered on 25/7/1949, two at the house where Hafiz Ali was residing and Aman Ali at his own house. According to the prosecution they were murdered in the following circumstances. The villagers of Dhadi had a dislike for the malguzars, as some amount of grazing dues and rents were in arrear from them. The malguzars had not been able to meet the government demand for tend revenue and on 16/7/1949 the Sub-Divisional Magistrate, Arvi, ordered the sale of the malguzari right of mauza Dhadi on account of this default on the part of the malguzars. On 24-7-98 the station house officer. Ashti, one Dongar Singh visited the village in connection with the investigation of a complaint filed by Hafiz Ali, against a number for forcibly removing timber from a forest owned by the malguzars and converting the wood into charcoal. He arrested number of persons including some of the accused. They were, however, released on bail on the 25th morning and accused Bhimrao Kadu stood surety for some of them. The sale of the village ordered by the SubDivisional Magistrate had to take place after the rainy season. In order to avert this sale and meet the government demand. Hafiz Ali, Aman Ali and Bashir Ahmad held consultations and decided to make an effort to realise the arrears of rent and grazing dues from the villagers. Accordingly a demand for payment of these arrears was made by making a proclamation in the village by beat of drum on the morning of the 25th July. The demand for payment of arrears by a public proclamation excited the ire of the villagers who also held consultations between themselves and they decided to resist it. It is said that a meeting of the villagers took place in the morning at the house of Govinda Gaikwad (accused 22), where it was decided that the demand should be resisted and if necessary, the malguzars should be severely dealt with. Haflz Ali and Aman Ali, being apprised of the meeting, held consultations 'inter se' and met at the house of Bashir Ahmad for the purpose of devising means to meet the situation that had arisen. A report was written out to be sent to the police. Aman Ali along with Jilani a servant of Hafiz Ali, was deputed to take the report personally to Ashti. Leaving Jilani and Shiraz Ahmad at Bashir Ahmad's house Aman Ali returned to his house to dress up and then proceed to the thana. Hafiz Ali also came back from Bashir Ahmad's house and on his way he found the accused assembled at the house of Abdul Gani (accused 6). Some members of the mob attacked him with sticks and struck him a blow. Hafiz Ali thereupon ran into his house, and shut the door. The mob surrounded the house, dug out the small door and removed it. Hafiz Ali, was standing near the door. Bhimrao Kadu (accused 5) struck him a blow with a spear and then all the accused entered the house, and beat Hafiz Ali with swords, spears, sticks and stones and wounded him grievously. They then left him in that condition and marched to Aman Ali's house and burst into it. They struck him down with swords, spears and lathis and killed him. Shiraz Ahmad and Jilani on hearing the uproar and finding that the accused had left Hafiz Ali's house, arrived at his house and while they were there the crowd returned to Hafiz Ali's house after having finished Aman Ali. Hafiz Ali was assaulted afresh and was killed. A search was made for Shiraz Ahmad who had hidden himself on the loft. He was pulled down and was murdered. The corpses of the two unfortunate men were dragged out of the house and were left lying, that of Hafiz Ali outside the door and that of Shiraz Ahmed near a well close by. The accused then turned their attention to Jilani, caught hold of him and marched him outside the house. He was tied to a wooden post and Sheshrao Patode (accused 19), it Is said, then snatched a sword from the hand of Abdul Gani (accused 6) and cut his nose and the upper lip. The accused then broke open a box belonging to Hafiz Ali and carried away cash amounting to 600 in ten rupee notes and other papers. All this took place between 12-30 P.M. and 2 P.M. on the 26th July. At 7-45 P.M. the same evening, the first information report regarding the murder of Aman Ali and the wounding of Hafiz Ali was recorded at the police station Ashti to the dictation of Ikrar Ullah, son-in-law of Hafiz Ali, who had managed to escape from the house of Hafiz Ali after the first attack had been made on him. Ashti is at a distance of six miles from Dhadi He also informed Rashid Ahmad, another brother of Hafiz Ali, who resides at Ashti of this incident. In pursuance of this report, Sub-Inspector Dongar Singh and Circle inspector Kanetkar who was got from Arvi, proceeded to Ashti and started investigation. They reached the village at about 2 A.M. in the morning. As a result of the investigation, the police put in four separate challans against the accused before Shri R. K. Pandey,. Magistrate First Class, Wardha. Thirty two persons were charged for rioting with deadly weapons and for the murder of Hafiz Ali, Shiraz Ahmad and Aman Ali and some of the accused were also charged with the offence of dacoity and causing grievous hurt, which offences were triable with the aid of Jury. 33 The magistrate committed all these persons by one order dated 19-10-1949 to take their trial in the court of session. He was of the opinion that the offences under the four challans were committed in the course of the same transaction and could be toted Jointly.
(3.) THE Jury returned a verdict of not guilty regarding accused sheshrao patode of the charge under s. 320, Indian Penal Code and also of the charge under (k. 326/109 against accused Shankar Mahar, Govinda Gaikwad, Gondu Mussalman, Sampat Gawari and Gulab Lande. A unanimous verdict of not guilty was also given by the jury regarding accused, Walayut, Pundalik Chore, Shamrao Wankhede, Maroti Gawande, Ramarao Wankhede, Dinya, Gond, Puniya Gond, Bhurya Gond, Sheshrao Patode, Bhimrao Gawande and Govinda Gaikwad on the charges under S. 395, Indian Penal Code THEse charges were in respect of the cutting of the nose of Jilani and of breaking open the box of Hafiz Ali and removing from it currency notes of the value of Rs. 600.00 and other papers. THE learned Sessions judge accepted the verdict of the jury and acquitted all the accused persons in respect of these charges. In respect of the charges of rioting and murder, the learned Sessions Judge accepted the verdict of the majority of the assessors and found the accused not guilty and acquitted all of them. In the concluding part of his Judgment, the learned Judge observed as follows: "Out of the eleven eye-witnesses, five have gone back upon their statements made in the committing court. They are Jilani, Mahadeo, Sitaram, Radhi and Hayatbi. I will, particularly refer to Jilani and Hayatbi who could have no reason to go behind their statements, they being personally affected by the offences. Jilani had his nose cut by the assailants and Hayatbi lost her husband at their hands. They could not go behind their statements if they had made true Statements in the committing court. Their statement that they made false statements in the committing court at the instance of the relatives of the deceased and as pressure was brought to bear upon them by the police, therefore does not seem to be improbable. Even if this was not correct. It is not at all safe to rely on the testimony of these witnesses at all, though law permits that if they are otherwise trustworthy they can be acted upon under S. 288, Cr. P. C." "Shakir & Ikrar are not trustworthy & are proved to be perjurers. Ikrar went to the length of blaming the committing court in order to justify his perjured statement. Shakir has made very inconsistent statements. From the evidence of the Circle Inspector, it is clear that Ikrar was taking active interest throughout the investigation. In the circumstances, it is not possible to rely on the testimony of these witnesses. Gulzarali (P.W.9) is a petty servant of the malguzars of Dhadi of whom three were murdered. Thus, his testimony cannot be said to be disinterested ............ Hasan Ali is brother of the deceased and has given a very unnatural story. I do not believe for a moment that he was present and had seen the assault on Hafiz all as stated by him. The next witness is Ibrahim who was not examined by the police for 21 days after the incident. He has also been proved to be perjurer. The statement of Biyabi is also unconvincing and her statement in this court is seriously impaired on account of the written and signed report taken from her during the investigation .... ... the investigation was not as impartial as one would expect it to be. The police officers seem to have acted at the instance of Ikrar right from the very beginning They failed to take down material statements and effect the seizures in proper manner. Most of the seizures were unauthorised and illegal. In this state of affairs it is not possible to rely on the prosecution case laid in this court. 'It is no doubt true that it is probable that some of the accused might have participated in the offence but it is impossible to find out from the state of the prosecution evidence who they were, with any amount of certainty. As I have already said. It is to be regretted that some of the guilty might go unpunished for such brutal and broad day-light murders but in the state of the prosecution evidence, it would be a pure gamble to convict any of the accused'." The State government preferred an appeal against the acquittal of these persons to the High court of Judicature at Nagpur. The High court reached the conclusion that the good evidence in the case was given by five persons whose presence at the spot could not be gainsaid. These witnesses were Biyabi (P.W.1), Jilani (P.W.3), and Ikrar Ullah (P.W.25) for the murders of Hafiz Ali & Shiraz Ahmad, and Mt. Hayatbi (P.W.6) and Radhi(P.W.) 4) for the murder of Aman Ali. Reliance was placed on the statements of Hayatbi and Radhi made in the committal court and also on the statement of Jilani made in that court in preference to their subsequent statements in the court of Session, which were considered as suborned and influenced by the accused. The High court agreed with the view of the learned Sessions Judge that the evidence of the other witnesses was not reliable. As regards the offence of dacoity, however, the High court took the view that there was no misdirection to the Jury and the jury were, therefore, entitled to believe or disbelieve Biyabi and it could not be held that in disbelieving Mt. Biyabi the jury had acted perversely. The verdict therefore of not guilty on the charge of dacoity against the persons concerned was maintained. As regards the cutting of the nose of Jilani, the High court also maintained the verdict of the jury and found that it could not be held that the jury were acting perversely in not relying upon the testimony of Jilani about the identity of the persons concerned. As regards the offence of rioting with deadly weapons and murder, the acquittals of the appellants in the two appeals were set aside and they were convicted as follows: JUDGEMENT_31_AIR(SC)_1954Html1.htm The accused convicted under S. 148, Indian Penal Code were sentenced to undergo rigorous imprisonment for 34 two years and those convicted under S. 147 were sentenced to rigorous imprisonment for one year. Under Ss. 302/149 Bhimrao Kadu, Abdul Gani and Sheshrao Patode were sentenced to death and the remaining appellants were sentenced to transportation for life on each of the counts for which they were convicted. It was ordered that the sentence of imprisonment awarded under Ss. 147 and 148 would run concurrently with the life sentence. The acquittal of the remaining persons challenged by the police was maintained and they were ordered to be released. ;