Pesh Mohammad and Others vs Emperor

Shearer, J.—The petitioners, who are 18 in number, have been convicted either u/s 147 or Section 148, Penal Code, and have been sentenced to undergo rigorous imprisonment for three months. All of them were also convicted u/s 353, Penal Code, and, on that charge, were also sentenced to undergo rigorous imprisonment for three months, the two sentences to run concurrently. Certain of them were further convicted u/s 323, Penal Code, and, on that charge, were again sentenced to undergo rigorous imprisonment for three months, this sentence in the case of three men, namely Pesh Mohammad, Sheikh Nasirul Haque and Sheikh Subhan being ordered to run consecutively to the other sentences, while in the case of the others it was ordered to run concurrently. All of the petitioners are Mahomedans and they obstructed a Mahabiri Jhanda procession by throwing stones at the Hindus in it, causing injuries to a number of them and also to various police officers, who were accompanying the procession.

Mr. Safdar Imam for the petitioners has contended that the imposition of separate sentences under Sections 323 and 147 on the petitioners, Pesh Mohammad, Sheikh Nasirul Haque and Sheikh Subhan was illegal. So far as the petitioner, Pesh Mohammad is concerned, there was clearly no illegality. This man appears to have struck a Sub-Inspector of Police with a lathi when the Sub-Inspector went up to him and called on him and his companions to let the procession pass. This was an individual act on the part of Pesh Mohammad, which was quite separate and distinct from the rioting. In such a case the imposition of separate sentences is perfectly legal, and Section 71, Penal Code, has no application. If authority for this proposition is needed, I may refer to the decision of the Madras High Court in Sothavalan alias Irulan and Others Vs. Rama Kone and Others, and that of the Calcutta High Court in Ram Angutha Singh v. Emperor 40 Cal. 511.The case of the petitioners, Sheikh Nasirul Haque and Sheikh Subhan, stands, however, on a somewhat different footing. What was alleged against them, as against certain other petitioners, was that they threw stones or brickbats at the procession. It is true that they have each been convicted of a substantive offence u/s 323, Penal Code, and if that conviction were-proper, the decisions just cited would perhaps be applicable. But, it can scarcely be supposed that those Hindus or police officers who were struck with stones or brickbats clearly recognized who the individual Mahomedan was who threw the particular stones or brickbats which hit them. In fact, some at least of the Hindus, particularly Shanker Rai, a dafadar, admitted quite frankly that they were unable to say who had thrown the missiles which struck them. These two men, Sheikh Nasirul Haq and Sheikh Subhan, as also the other petitioners who have been convicted u/s 323, ought really to have been convicted u/s 323 read with Section 149, Penal Code. In that case, however, the imposition of separate and distinct sentences would have been illegal on the principles laid down in the Full Bench decision in the well-known case in Nilmony Poddar v. Queen-Emperess 1989.16 Cal. 42 (F.B.). The convictions u/s 323 will in each case be altered to convictions u/s 323 read with Section 149 and the sentences imposed u/s 147 or Section 148, as the case may be, will be deemed to be a consolidated sentence under that section and u/s 323 read with Section 149, Penal Code.

Shortly after the occurrence took place, a test identification was held, and a number of Hindus who had been in the procession and police officers who had been with it each picked out some of the petitioners. At the trial no fewer than ten of these persons were called to give evidence by the prosecution. It is true that they were put into the witness box, but no questions were put to them by the public prosecutor. They were, it is said, tendered for cross-examination, which was declined. Nevertheless, the Courts below in convicting the petitioners have relied on the circumstance that these ten persons picked certain of them out at this test identification. This, it is clear, was entirely wrong. These persons had not given any evidence against the petitioners, and the mere circumstance that they had been seen to pick them out at a test identification and had then made some statement to the sub-registrar who conducted it, was wholly irrelevant unless and until they gave evidence at the trial when, of course, the previous statement was relevant to corroborate that evidence. The result is that so far as three of the petitioners are concerned, namely, Sheikh Ainul (petitioner No. 13), Sheikh Kamzan (petitioner No. 6) and Sheikh Mina (petitioner No. 9), there is no legal evidence whatever on which a conviction can be sustained. The applications of these petitioners must, in consequence be allowed, their convictions and sentences are set aside, and they are discharged from their bail. Although in convicting the other petitioners the Courts below have relied on something that is not evidence I am satisfied that there is evidence, legally admissible, which is in each case sufficient to justify their conviction.

Mr. Safdar Imam also referred to something of a most unusual kind, which took place during this test identification. Apparently, the sub-registrar who conducted it was apprehensive that if a suspect was picked out by some witness he might deny that he was a suspect and so cause a good deal of trouble and delay in the proceedings. In order to make it impossible for the suspects to do this the sub-registrar put some kind of mark or stamp on them. Mr. Safdar Imam has suggested that this may have enabled the witnesses to pick them out. It is, however, clear that many mistakes were made at the test identification, and this would scarcely have happened if the marks, which had been put on the suspects, afforded any clue as to who were suspects and who were not. Moreover, it does not appear that any objection was taken at the time. If any of the suspects had believed or even suspected that a witness, who had picked him out, had seen the mark which had been put on him he would, I think, quite certainly have objected. At the same time, while I do not consider that the practice adopted in this particular case has led to any miscarriage of justice, it is a practice which, I think, is to be deprecated and ought not to be resorted to. Subject to the modifications indicated above, the applications will be dismissed.

Meredith, J.

I agree.