Ibrahim and others vs Emperor

Luby, J.—The appellant, Ibrahim, Muhammad Elias, Wali Muhammad, Yasin and Nasiruddin, have been convicted and sentenced on 30th May 1934, by the Assistant Sessions Judge of Bhagalpur, as follows: Ibrahim under S. 307, Penal Code, with sentence of seven year''s rigorous imprisonment, also S, 147, Penal Code, with sentence of one year''s rigorous imprisonment. (to run concurrently), Muhammad Elias. Wali Muhammad and Nasiruddin under S. 307, Penal Code, with sentence of five years'' rigorous imprisonment, also under S. 148, Penal Code, with sentence of two years'' rigorous imprisonment (to run concurrently); Yasin under S. 147, Penal Code, with sentence of one year''s rigorous imprisonment. There was also a charge framed under S. 450, Penal Code, against all the five appellants, that part of the case was tried by a jury which acquitted Ibrahim and others by a unanimous verdict, and the Assistant Sessions Judge has submitted that verdict to this Court under S. 307, Criminal P.C., as in his opinion it is unreasonable and perverse. The five appeals and the Assistant Sessions "Judge''s reference have been heard together and this judgment will, cover all of them.

The facts of the case are as follows. The informant Muhammad Siddique aged about thirty-five years is a well-to-do cultivator. He is the nephew of of Ibrahim appellant and was brought up in Ibrahim''s house. He married Habidan, daughter of Afzal about 20 years ago and she bore him one son Ibrar. Five or six years ago Siddique took a second wife, namely, Jamila, daughter of Ibrahim appellant. But it appears that his second marriage was not a success. There were disputes between Habidan and Jamila, and after a short time Jamila left Siddique''s house and returned to her fathers house. According to Siddique and Habidan, Ibrahim took his daughter''s side and insisted that Siddique should get rid of Habidan, and would not allow Jamila to return to Siddique''s house so long as Habidan was there. It would appear from Siddique''s evidence that the dispute reached a crisis in October 1933, when one Ali, a connexion of Ibrahim came to his (Siddique''s) house and gave him some kind of warning or threat on or about October 25th. As Siddique had to go to another village on business, he asked his neighbor Maqbul to sleep at his house and keep guard during his absence.

On 31st October, Habidan and her son, Ibrar aged 16 and their servants. Besi Banter and Kali and their neighbour Maqbul were at Siddique''s house. Habidan was sitting up late for some work and the others had gone to sleep. The five accused (now appellants) came into the house and fastened the door of the room in which Maqbul and Ibrar were sleeping. They then proceeded to assault Habidan who was on the verandah. Ibrahim struck her with a lathi, Elias, with a kukri, Nasiruddin with a pole-axe (pharsa) and Wali Muhammad with a spear. She sustained severe injuries. Her cries roused Maqbul and Ibrar and the two servants, Besi came into the courtyard and liberated Ibrar and Maqbul. Then the five accused left the premises, taking with them Habidan''s necklet valued at Rs. 16 and a steel trunk containing Rs. 125 in cash. The trunk was found lying outside the house in a broken condition, but the cash was missing. Habindan''s husband Siddique and her father Afzal were sent for. After inspecting the premises and hearing Habidan''s story they left for the polite station which was at a distance of 11 miles. Siddique lodged a "First Information Report" on 1st November, at 1 p.m., accusing all the five appellants of having assaulted Habidan and stolen the necklet and trunk. Habidan was taken to hospital and was detained there as an indoor patient for one-and-a-half months. She had sustained a broken arm; her head was wounded and her skull slightly damaged; and she had six wounds on her arms and hands.

In Court Habidan described the occurrence and accused the five appellants of having trespassed into her house and attempted to murder her and removed her necklet and the trunk. She was the only eye-witness of the actual assault. But Besi Banter and Ibrar deposed that they had seen and recognized the five accused leaving the ?premises with arms in their hands and carrying the necklet and the trunk. The servant Kali deposed that he had seen the five accused persons leaving Habidan''s house and heard her naming the five accused as the culprits. Shanti Banter, cultivator, and Gulchand Banter, labourer, who are near neighbors of Siddique, deposed that they saw at a distance five men (whom they could not recognize) running away from Sidsique''s house and that they heard Habidan accusing the five appellant''s as the culprits. Jhaksu Musahar, labourer, reached Siddique''s house too late to see the culprits, but heard Habidan naming the five appellants as the culprits. Maqbul though named in the First Information Report was not examined as a prosecution witness, on the ground that he bad been gained over evidence was given that Maqbul had been seen conferring with Ibrahim and receiving favors from Ibrahim since the occurrence. The accused persons pleaded not guilty and said that they had been falsely accused by Habidan at the instance of their enemies Abdul Hamid and Afzal (Habidan''s father). The Assistant Sessions Judge did not examine the accused persons properly under S. 342, Criminal P.C., in order to enable them to explain the circumstances appearing in evidence against them. He did not even think of asking Ibrahim whether he had a daughter named, Jamila, or whether that daughter had been married to Siddique, or where Jamila was living at present. No written statement was filed by the accused and no defence witnesses were called. It was suggested for the defence that Habidan had been assaulted by burglars and had taken the opportunity to bring false accusation against the father and the brother of her rival Jamila.

The five jurymen gave a unanimous verdict of not guilty for all the accused under S. 450, Penal Code, and also on the charge of theft. As assessors, they also gave a unanimous verdict of not guilty for all the accused under Ss. 307, 147 and 148, Penal Code. But the Assistant Sessions Judge considered that the case had been fully proved by the evidence of Habidan, Ibrar, Besi and Kali. On appeal it is argued that the Assistant Sessions Judge committed irregularities and that the evidence adduced for the prosecution was not good and sufficient to support the convictions. The procedure of the Assistant Sessions Judge has been impeached on the ground that he ought to have insisted on the Public Prosecutor''s examining Maqbul and Baldeo Jha as prosecution witnesses, although the Public Prosecutor had satisfied himself that those witnesses had been gained over. The Public Prosecutor refused to examine Maqbul and Baldeo as prosecution witnesses, but produced them in Court so that they might be examined as Court witnesses or as defence witnesses. But neither the Court nor the defence lawyers wished to examine them. The Assistant Sessions Judge dealt with this matter very fully in his order-sheet. I need only say that the Public Prosecutor was not obliged to examine Maqbul and Baldeo as prosecution witnesses, if he had reason to believe that they would not support the prosecution case. Nor was the Court bound to examine any person as a Court witness, unless, the evidence of such person appeared to be essential to the just decision of the case.

Regarding the evidence of the eyewitnesses, it is argued that they should not have been believed as they arc not independent witnesses. It is true that Ibrar is Habidan''s son and that Besi and Kali arc Siddique''s servants. But it was not to be expected that any independent witnesses from elsewhere would be present at Siddique''s house at dead of night to witness the occurrence. That untimely hour must have been selected by the culprits for the very reason that no other villagers would be at hand to assist Habidan. In the circumstances no other evidence could be available besides that of the inmates of Siddique''s house; and their evidence must be taken for what it is worth. The Assistant Sessions Judge who had the advantage of seeing and hearing these witnesses was satisfied that they were telling the truth No important discrepancies between their depositions have been pointed out on appeal. So I see no reason why the findings of the Assistant Sessions Judge should not be accepted. Then it is argued that the defence theory should ''have been accepted, because Siddique has admitted that there was enmity between Abdul Hamid and Ibrahim and that he (Siddique) belonged to Abdul Hamid''s faction. But this argument from previous-enmity cuts both ways. The existence of a feud might lead Siddique to bring a false case against Ibrahim, or it might lead Ibrahim to attack Siddique''s house when Siddique was out. Moreover, it is clear from the evidence that Ibrahim had his own private grudge against Habidan, whose rivalry has prevented his daughter Jamila from living with Siddique. It is true that there are some contradictions between Habidan''s deposition and Siddique''s deposition on certain points; but the Assistant Sessions Judge attributes this to a desire on Siddique''s part to spoil the case against Ibrahim, who is his uncle and father-in-law.

It was stated before us that Ibrahim and his son Elias had a special defence, that is to say a plea of alibi. No such plea was taken by them in the Sessions Court. But it appears from the evidence of the investigating, Police Officer that they claimed at his enquiry to have been from 28th October, till 22nd November, at Purnea, where Elias was being treated for heart disease by Hakim Mumtaz Ahmad. If this had been a fact, they could have proved it by calling the Hakim as a witness; but they made no attempt to prove it in that or any other way. Elias complained to the doctor in charge of Supaul. Subsidiary Jail (prosecution witness No. 24) about his "heart disease," and the doctor examined him thoroughly, but could not find anything wrong with his heart. It seems obvious that this claim was only made by way of explanation for the fact that Ibrahim and Elias were not to be found till they surrendered in Court on 27th November. As the claim has not been substantiated we must fall back on the Crown''s theory that Ibrahim and Elias were absconding to avoid arrest. Ibrahim appellant claimed to be. 71 years of age. But the Assistant Session Judge took this claim into consideration, and found Ibrahim to be hale and hearty and quite capable of committing the assault.

It seems to have been established by good and sufficient evidence that the five appellants trespassed into Habidan''s house at dead of night and assaulted her in the manner alleged. According to Habidan''s story repeated blows were struck at her head and neck with dangerous weapons, and she warded of those blows with her arms and hands until her arm was broken by a blow, and after that her head was cut open and she staggered out into the courtyard and fell down there. Habidan''s account of the assault is amply supported by the doctor''s description of the injuries which he found on her person. Her right forearm was fractured, and a piece of bone was cut off her skull, and she had six wounds on her arms and hands. It is clear from the number of wounds and from the severity of the injuries inflicted that the intention of her assailants was to murder Habidan and if they had not been interrupted by the arrival of Besi and Kali, they would probably have continued the assault until they had achieved their purpose. In the circumstances the convictions under S. 307, Penal Code, of Ibrahim, Elias, Wali Muhammad and Nasiruddin seem to be correct and the sentences are not too severe. The five appellants have all been convicted for rioting with the common object of committing house trespass in Siddique''s house and of murdering Habidan. According to Habidan''s evidence, this common object was expressed in words by Ibrahim appellant when the assault was begun. Whether Ibrahim used such words or not, the common object of the assailants may be said to have been fully expressed by their actions. The conviction for rioting also seems to be quite correct.

As it has been proved by good evidence that all the five appellants trespassed into Siddique''s house with the common intention of murdering Habindan and did attempt to murder Habindan and did inflict grievous hurt upon Habindan in the course of that attempt, it follows that they should all have been convicted under S. 450, Penal Code, also. The verdict of the jury seems to have been unreasonable and perverse, and the reference made by the Assistant Sessions Judge under S. 307, Criminal P.C., should be accepted. I would therefore dismiss all the five appeals; and I would accept the reference under S. 307, Criminal P.C., and convict the five appellants under S. 450, Penal Code, also. But there is no necessity for imposing additional sentences under S. 450, Penal Code as the sentences already imposed upon the appellants under other sections will be sufficient punishment for them.

Saunders, J.

I agree.