Jamal Momim and Another vs Emperor

Adami, J.—The two appellants have been convicted by the Sessions Judge of Darbhanga and sentenced to seven years'' rigorous imprisonment u/s 304, Indian Penal Code, to two years'' rigorous imprisonment u/s 148, and to one year''s rigorous imprisonment u/s 326 read with Section 149, the sentences are to be served concurrently. The appellants were also bound down u/s 106, Cr. P.C. to keep the peace for one year in sums of Rs. 200 each.

According to the prosecution story Sri Mohan Jha, the zemindar, wanted to make his tenant Manir execute a kabuliyat for the payment of enhanced rent. Manir refused and this made the zemindar angry.

At 6 A.M., on the morning of the 17th November 1922, a large mob of men came on to Manir''s land and began looting away the crop. Sheikh Madri and Jheri, Manir''s men, came up and protested, and thereupon they were attacked, Bideswar struck Manir first and then these two present appellants struck Madri with garassas on the head. He fell and died from the effects of the wounds he had received. Jheri also received injuries.

Information was given at the Police station, which is eight miles distant, at 11-30 that same day. In that information Manir stated to the Police that the two sons of Sri Mohan had been present on horse-back directing the mob and also his tehsildar. Altogether nine persons were mentioned in the information as having taken part in the assault.

The Police investigated and sent up six persons including the two sons of the zemindar and the tehsildar; the three other persons including these two appellants could not be found, and the trial proceeded without them, resulting in the acquittal of the two sons of the zemindar and the tehsildar and the conviction of the other three persons sent up. That was in June 1923.

The two present appellants were absconding, and steps were taken against them under Sections 87 and 88 and then in January of this year it was decided that in their absence the evidence should be taken u/s 512 of the Cr. P.C., and the 28th of January was fixed for that purpose. On that date the two appellants surrendered and asked for some time in order to enable them to procure the surrender of the third absconder Jhingru Dusadh. He, however, could not be found and the two appellants were put on their trial, after commitment, before the Sessions Judge.

The same witnesses were examined as had been examined in the previous trial in 1923, and the three Assessors gave it as their opinion that these two appellants were guilty on the Charge brought against them. The learned Sessions Judge agreed and they were convicted and sentenced as I have-stated above.

Mr. Sen, the learned Counsel for the appellants, in the first place attacks the constitution of the Court by which the appellants were convicted. He points out that u/s 284 of the Cr. P.C., it is required that if practicable four Assessors should be chosen and that the minimum number of Assessors is three; and he argues that it is only where it is not practicable to find four Assessors that the Court can be properly constituted with three; and where only three Assessors are chosen, reasons should be recorded why it has not been practicable to chose four. In the present case the proceedings do not show any reason why four Assessors were not chosen.

We have dealt with this question on this Bench before, and, while pointing out that where four Assessors are not chosen it is right that the Court should give reasons in the order-sheet to explain the impracticability of choosing four, the trial with three Assessors, without the record of these reasons, is not irregular but is still according to law and does not offend against the provisions of Section 284.

Mr. Sen does not contest the finding that there was a riot on the 17th of November 1922. He contends, however, that the proof that the two present appellants took part in that riot is insufficient.

In the first place he points out that several of the witnesses in their cross-examination have made statements which are not in accordance with the statements which they made in the previous trial, and on this ground he urges that the evidence should not be believed.

Secondly, he attacks the admission of the former depositions of these witnesses by the Sessions Court as evidence to test the credibility of the witnesses.

Thirdly, he points out that, according to the First Information and the evidence of the witnesses, the two appellants inflicted the wounds with garassas, while the medical evidence admittedly shows that the wounds on the head of the deceased man Madri were lacerated wounds caused by some blunt weapon.

Lastly, he points to a suggestion that Manir received a letter at the Police Station from one Abdul naming the two appellants and that it was owing to this letter that Manir mentioned the appellants'' names in the information.

The learned Sessions Judge in his judgment has most carefully considered the alterations in the statement made by some of the witnesses. He has admitted the previous depositions made by some of the witnesses u/s 157, Evidence Act, and after discussing the evidence, he has shown that there are three reliable witnesses, namely, witnesses Nos. 7, 9 and 12 who have not changed their statements, and it is on the basis of the evidence of these three men chiefly that the learned Sessions Judge has come to a finding that the appellants did take part in the riot and wounded Madra.

Mr. Sen argues that the depositions are inadmissible u/s 157 to contradict the statements made in the present trial by the witnesses. As a matter of fact a consideration of the evidence of those witnesses shows that in the examination-in-chief they stated the same story as they stated in the previous trial, and those previous depositions might rightly be admitted u/s 157 to corroborate the present story. But at the same time it appears that those depositions have been used to contradict what the witnesses further stated in their cross-examination in the present trial and it is plain that they could not be admitted for that purpose u/s 157. The section under which such evidence may be admitted for the purpose of contradiction is Section 155. However that may be, it is clear from the judgment of the learned Sessions Judge that, after noticing and explaining that the evidence given in the cross-examination of these witnesses is unreliable because they contradicted themselves, he has practically discarded the evidence of those witnesses and has contented himself with relying on the evidence of the three witnesses I have mentioned. This he was perfectly justified in doing: and after reading the evidence of those three witnesses, corroborated as it is by their previous statements, there is no reason to find that the Sessions Judge was mistaken in basing his conviction on their evidence. The Assessors also believed those three witnesses. Where witnesses have changed their statements, naturally it is difficult for a Court to put full reliance on them even though the previous depositions may be brought forward to show that their present denials are false; and I myself would in this case, be quite satisfied with the evidence given by the three reliable witnesses.

Then Mr. Sen urges that since in the previous trial the two sons of the landlord and the tehsildar, who were the leading men, were acquitted, and since the three witnesses now relied upon mentioned in the previous trial that these three men were present, the Court should look with some doubt on their evidence. It has to be remembered, however, that in the previous trial too, though it was found that three of the accused who had been named by the witnesses were in fact not there, the Court was satisfied that the evidence of those witnesses was true with regard to the three other accused; and in this trial too I see no reason to doubt the evidence of the three witnesses because in the previous trial three other men who are not now before the Court were acquitted.

With regard to the letter alleged to have been written by one Abdul, there is no evidence to prove that any such letter was delivered to Manir. Manir was asked whether he had received that letter and he absolutely denied having done so. A witness Mian Sultan, who has been treated as a hostile witness, says that he heard from Manir that he had received a letter from Abdul; but Manir was not asked whether he had made any statement on this subject to Mian Sultan. There is absolutely no evidence to show what enmity Abdul had against the two appellants and there is no evidence to satisfy the Court that any letter was in fact written by Abdul which served as a guide to Manir in naming the persons accused in the first information.

It is true that the medical evidence shows that the wounds on the head of Madri were inflicted by a sharp-edged weapon like a garassa. The learned Sessions Judge has carefully considered this point and has come to the conclusion that as the witnesses were at some distance and saw the two appellants carrying garassas when they hit Madri, the witnesses concluded that they were using the garassas. The learned Sessions Judge points out that the wounds may have been inflicted by a garassa but with the lathi end of it, and wounds thus inflicted would be of the nature found on medical examination. It is possible too that the appellants used the back of the garassa in hitting Madri. Throughout the evidence it is shown clearly that the appellants hit Madri with garassas. This has been the story throughout even in the First Information and there is no reason to think that the witnesses have purposely told a false story. It is much more likely that if they were going to tell a false story they would have fitted their story to suit the medical evidence and mentioned some other weapon. To my mind the evidence that these two appellants were present in the mob and that they were the assailants of the deceased Madri is quite clear, and the finding of the Assessors and the learned Sessions Judge is, I am satisfied, correct. The sentence passed against the appellants is not severe considering the injuries they inflicted.

There is one other matter to which Mr. Sen called our attention and that is that the learned Sessions Judge refused to call a defence witness when requested to do so by the appellants. The proceedings show clearly the reasons for this refusal and those reasons are sound. The learned Sessions Judge says that though defence witnesses had been mentioned, the appellants gave him to understand that they were not going to call any defence witnesses, and it was not until the case had come to an end that their request was made. The learned Sessions Judge points out that the defence had sufficient time to procure the attendance of this witness earlier and they had been aware that no defence witness was present throughout the trial. The reasons given for the refusal were satisfactory, and there is no reason to consider that the accused had been prejudiced by the refusal to call this witness.

I see no good reason to interfere in this appeal and would uphold the conviction and sentences passed against the appellants and dismiss the appeal.

John Bucknill, J.

I agree.