Mohiuddin Khan and Others vs The King-Emperor

Adami, J.—These two applications are made to this Court in its Revisional Jurisdiction against the conviction of the petitioners u/s 144, I.P.C., and the sentence of three months'' rigorous imprisonment passed against them by the Deputy Magistrate of Daltangunj. The convictions and sentences were upheld by the Judicial Commissioner of Quota Nagpur on appeal.

One of the applications is on behalf of two of the petitioners Mohiuddin and Sultan, the other is made by the rest of the petitioners.

The case of Mohiuddin and Sultan is somewhat different from the case of the other petitioners. The charge against all the petitioners was that they formed an unlawful assembly and had entered the field of occurrence where the complainant''s party were getting their paddy seedlings uprooted. There was no allegation of any assault at all against the petitioners. The story was that the defence party had assembled some Fathans from Kothi be help them in their attempt to take possession of the land and the two petitioners Mohiuddin and Sultan are alleged to have been two of these Fathans. As a matter of fact Sultan is not a Pathan.

In the first information given in this case the names of these two men were not mentioned, it was merely stated that the ten other petitioners went to the field with two Pathans whose names were not known. Mr. Manuk on behalf of these two petitioners complains that the appellate Court as well as the trial Court have not considered properly the question whether these two petitioners were indentified satisfactorily by the witnesses and were proved to have been members of the unlawful assembly. He shows that the witnesses gave ambiguous or evasive answers when questioned whether they had named these two petitioners to the police as having been present. He asserts that each witness was questioned particularly about the two men and yet the learned Judicial Commissioner in his judgment has given no consideration to the question of their participation in the unlawful assembly. The Sub-Inspector was asked whether the witnesses had named these two petitioners to him and said that he could not remember. When asked to refresh his memory from the diaries he refused to do so and the Magistrate did not compel him to look into these diaries for the purpose of answering the question as he ought to have done.

I have road through both the judgments, that of the trial Court and that of the appellate Court and it is true that in neither judgment has the question whether each of these two petitioners or either of them was in fact present been considered.

The learned appellate Judge merely states that the appellants in that case bad been sufficiently identified by the prosecution witnesses. There is no consideration of the separate case of each as there should have been.

Considering that these petitioners were not named in the first information and that their defence was that they were not present, I think that the question of their participation ought to have been carefully dealt with by the learned Judicial Commissioner.

Mr. C.C. Das appears on behalf of the ten other petitioners and though the grounds are not so strong as those put forward by the other two who were not mentioned in the first information by name, it is true that in their case also there has been no consideration in the judgments of the question whether they individually were present in the unlawful assembly. It is true that the Deputy Magistrate in his judgment states that "all these witnesses are unanimous in saying that the 12 accused armed with swords, balaas and lathis went in a body to the field of occurrence." But it is pointed out by Mr. Manuk that this is not a true statement as shown for example by the evidence of the prosecution witnesses 2 to 5 who only named a few of the accused as having been identified by them on the spot.

I am satisfied that the consideration of the question of the presence of Mohiuddin and Sultan has not been sufficiently considered and that it will be necessary to ask the Judicial Commissioner to rehear the appeal altogether and to consider whether these two men were present, at the same time he will have to consider in the same way whether the rest of the petitioners ware present.

It will be open to the learned Judicial Commissioner to call the Sub-Inspector before him in order that he may be examined on the question of identification and be required to refresh his memory where such refreshment seams necessary.

The order of the Judicial Commissioner on appeal is therefore set aside and the appeal is remanded to him for rehearing. The petitioners will remain on bail.