B.R.James, J. - (1.) Certain incidents allegedly took place on the 2nd and 3rd September, 1954 at Panderi Khar and Bhua Khar, police circle Sahson in the district of Etawah, in which fire-arms including hand-grenades were used, and in the course of which police informer Karan Singh and constable Dudh Nath Singh were mortally wounded and constables Sri Kishan and Dukhi Rai seriously injured with fire-arras also unlicensed D.B.B.L. .500 bore rifle Ex. I and a large number of cartridges were allegedly recovered at Bhua Khar and Tahsildar Singh arrested. After investigation and commitment proceedings Tahsildar was sent up for trial before the Additional Sessions Judge of Etawah, who framed the following eight charges against them: (a) Under Section 148, I. P. C., for committing a riot armed with a deadly weapon, to wit, a rifle at Panderi Khar on the 2nd September; (b) Under Section 302 read with Section 149, I. P. C. for causing the death of Karan Singh with fire-arms; (c) Under Section 307 read with Section 149, I. P. C. for attempting the murder of constables Sri Kishan and Dukhi Rai with fire-arms; (d) Under Section 3 of the Explosive Substances Act read with Section 149, I. P. C. for unlawfully and maliciously endangering life by exploding hand-grenades; (e) under Section 4(a) of the Explosive Substances Act read with Section 149, I. P. C. for unlawfully and maliciously causing the explosion of hand-grenades likely to endanger the life and property of the police; (f) under Section 4(b) of the Explosive Substances Act read with Section 149, I. P. C., for unlawfully and maliciously being in possession of an explosive substance, to wit, hand-grenades; (g) under Section 302, I. P. C. for shouting constable Dudh Nath Singh at Bhua Khar some time before sunset on the 2nd September as a result of which he died on the night between the 3rd and 4th September; and (h) under Section 19(f) of the Arms Act for being in unlawful possession of a breach-loading .500 bore double-barrelled rifle, Ex. I and a large number of cartridges at Bhua Khar at about 7 a.m. on the 3rd September. Charges (a) to (f) related to Panderi Khar on the 2nd September and were alleged to be part of one and the same transaction. After a long drawn-out trial, in which he examined fifty six prosecution witnesses and seven court witnesses and considered 276 documents filed on behalf of the prosecution and 23 filed on behalf of the defence, the learned Judge held that the offences embraced by charges (a) to (f) were committed by Man Singh's gang in Panderi Khar, that the accused Tahsildar was present there and that he shared the common objects and intentions of the gang, though the Judge conceded that Tahsildar's physical participation in any of those offences was neither alleged nor established. With regard to the offences under the Explosive Substances Act he was of opinion that Section 149, I. P. C. could not be applied but Section 34, I. P. C. could. Accordingly for charge (a) he awarded Tahsildar Singh rigorous imprisonment for three years; for charge (b) he sentenced him to death and referred the case under Section 374, Cr. P. C. for confirmation of the death sentence; for charge (c) he sentenced him to imprisonment for life; and for charges (d), (e) and (f) he awarded him seven years' rigorous imprisonment each, except that Section 149 was substituted by Section 34, I. P. C. With regard to charge (h) he held that Tahsildar Singh had been arrested at Bhua Khar at about 7 a.m. on the 3rd September holding the rifle Ex. I and a large number of cartridges for which he possesses no licence; for this offence he passed a sentence of three years' rigorous imprisonment. On charge (g), i.e., for shooting constable Dudh Nath Singh, he gave him the benefit of doubt and acquitted him. It might be mentioned that with regard to Dudh Nath's murder the prosecution had at the outset urged the framing of an alternative charge under Section 302 read with Section 149, I. P. C., but after examining the Committing Magistrate's record and hearing the parties the learned Judge came to the conclusion that the charge must be for murder simpliciter only.
(2.) Tahsildar Singh has filed Appeal No. 1389 of 1956 against his conviction and sentences, while the State Government have preferred Appeal No. 1918 of 1956 against the order of acquittal in respect of the murder of constable Dudh Nath. We shall deal with both the appeals and the reference under Section 374, Cr. P. C., together. II--BACKGROUND OF CASE AND TOPOGRAPHY.
(3.) The history of Tahsildar's family unfolds a woeful tale of an ordinary village feud leading to banditry and large-scale crime. For a proper understanding of this case a brief account of it is necessary. Khera Rathore in police circle Bah, district Agra, is a small village inhabited mostly by Rajputs of the martial Rathore clan. One of them, Man Singh, figures prominently in this case as the leader of the dangerous gang of dacoits and murderers. Two of his sons are Subedar Singh and the appellant Tahsildar Singh. This family was closely connected with a Brahmin family of the village, one of whose members, Rupa by name, subsequently became an active member of Man Singh's gang. Man Singh had formed a faction of his own in Khera Rathore. The leader of the rival party was one Talfi Ram Brahmin. A clash between the two parties occurred in 1928 in the course of which Talfi Ram's party suffered losses in dead and wounded. Man Singh's party was prosecuted for the crime, and Man Singh and several others were found guilty under Section 302/149 I. P. C. and sentenced to transportation for life. But two of the party Man Singh's eldest son Jaswant Singh and nephew Darshan Singh, absconded and could not be apprehended. A Rathore of the village, Khem Singh by name, who was distantly related to Man Singh, was pressed by the police to disclose the whereabouts of the absconders, and some time in 1937 when he did so an encounter with the police took place in which Jaswant and Darshan were shot dead while Man Singh's brother Nawab Singh and two other relatives were arrested, duly tried and convicted. After serving out his life sentence for the murders of 1928 Man Singh was released in 1939. He immediately started harassing the families of Talfi Ram and Khem Singh, and the relations between the two got so exacerbated that proceedings under Section 107 Cr. P. C. had to be drawn up against them both. Man Singh and his party were bound over, but Khem Singh was discharged. Man Singh's period of security expired at the end of May 1940, whereupon on the night between the 4th and 5th July, 1940, members of his faction launched a murderous attack to Khem Singh's party, killing two of them. Khem Singh lodged the first information report at police station Bah in which among others he named Subedar and Tahsildar as the assailants. These two men immediately made themselves scarce, and proceedings under Sections 87 and 88 Cr. P. C. against them remained fruitless. Several of those named in Khem Singh's report were tried and sentenced by the Sessions Judge of Agra to transportation for life. The High Court dismissed their appeal, and in its judgment expressed disapproval of the lesser sentence for murder passed by the trial court. It is quite possible that it was because of this observation of the High Court that Subedar and Tahsildar resolved not to surrender, and it is a matter of interest that Tahsildar was arrested as late as the 3rd September, 1954 (as we shall presently see) while Subedar was shot dead in 1955 during an encounter with the police.;