Shafayet Khan and Others vs Emperor

Kulwant Sahay, J.—There are five petitioners in this case. They have all been convicted by the Sub-Divisional Magistrate of Aurangabad of an offence u/s 147, I.P.C., and sentenced to six months'' rigorous imprisonment. The conviction and sentence have been upheld by the learned Sessions Judge of Gaya on appeal.

The first point taken by the learned Counsel for the petitioners is that the conviction of two of the petitioners Eradat Khan and Rashid Khan is bad in law. The prosecution case is that on the 23rd April, 1923, the petitioners and others formed themselves into an unlawful assembly and assaulted Khairati Khan at a place near a mosque in village Sihuli Dargah. After Khairati was assaulted he cried out for help and Nabi Bakhsh, Rustam and Pheku came to his assistance and it is alleged that these three persons were also assaulted by the members of the unlawful assembly. Khairati lodged a first information before the Police on the 23rd April, 1923. In this information he did not name Eradat and Rashid as being members of the unlawful assembly or as having assaulted him. Nabi Baksh lodged another first information the next day at 5 P.M. He named both Eradat and Rashid as being persons forming members of the unlawful assembly. It appears that on the 30th May, 1923, Khairati filed a written complaint in Court and in this complaint he named seven persons as members of the unlawful assembly. Amongst these persons Eradat and Rashid were not named. Khairati was examined as a witness on behalf of the prosecution, he being prosecution witness No. 6. In his deposition in Court as witness he names the other accused persons but does not name Eradat or Rashid. It has further been contended by the learned Counsel for the petitioners that so far as those two petitioners are concerned they did not form members of an unlawful assembly with the common object of assaulting Khairati which was the charge framed against them. The learned Sub-Divisional Magistrate in his judgment finds that Rashid joined the assault after Khairati had left the place. As regards Eradat he refers to the fact that be was not named in Khairati''s first information and the finding appears to be that Eradat Khan and Rashid Khan joined the unlawful assembly after Khairati had been assaulted and he (Khairati) had left the place and when Nabi Bakhsh and others were being assaulted. Now, the charge as framed in the Court below was that all the petitioners formed members of an unlawful assembly the common object whereof was to assault Khairati. Having regard to the evidence in the case and the finding arrived at by the learned Magistrate, it is clear that the charge cannot be sustained so far as Eradat and Rashid are concerned. They could not be members of an unlawful assembly the common object whereof was to assault Khairati when they did not turn up until after Khairati had been assaulted and had left the place, and joined the assembly only when Nabi Bakhsh and others were assaulted. It is clear, therefore, that the conviction so far as Eradat and Rashid are concerned must be set aside. As regards the other petitioners there is a clear finding that they along with several other members, exceeding five in number, did form an unlawful assembly with the common object of assaulting Khairati Khan and so far as they are concerned I see no reason to disturb the conviction or the sentence.

It appears that a counter-case was instituted by Ershad Khan, one of the party of the petitioners, against the complainant and other persons which resulted in an acquittal. Both cases were tried simultaneously and the learned Sub-Divisional Magistrate says that the two cases were so connected together that it was not possible to discuss the one and leave out the other. It has, therefore, been argued by the learned Counsel for the petitioners that the trial has been bad in law on account of the two cases being tried simultaneously and the facts proved in one case being used as evidence in the other case. As was laid down in the case of Sahadev Ahir v. Emperor 8 C.W.N. 344, the trial of two cross-cases of rioting and grievous hurt almost simultaneously but separately did not vitiate the trial unless petitioners can show some prejudice. In this particular case having regard to the findings of the learned Sessions Judge. I am unable to say that there has been any prejudice to the petitioners on account of such trial. As has been pointed out by the learned Sessions Judge the only result of the two cases being tried simultaneously has been that the learned Magistrate has examined the defence in more detail than he would have done otherwise. But this by itself does not show any prejudice to the petitioners.

It has next been contended that the petitioners Nos. 1, 2 and 3 ought not to have been tried jointly with the petitioners Nos. 4 and 5, as petitioners Nos. 4 and 5 were not in any way concerned with the offence with which the petitioners Nos. 1, 2 and 3 have been charged. As I have already stated the charge against all the five petitioners was the same, being members of an unlawful assembly with the common object of assaulting Khairati Khan. The petitioners Nos. 4 and 5 are now being acquitted because of the finding that they did not join the assembly until after the assault had already been committed upon Khairati and Khairati had left the place. There is no separate offence with which the first three petitioners have been charged as can be distinguished from the charge against petitioners Nos. 4 and 5, and, therefore, there has been no error in the trial of all the five petitioners in a joint trial. I would, therefore, set aside the conviction and sentence so far as Eradat and Rashid are concerned and affirm the conviction and sentence so far as Shafayat, Ghani and Amjad are concerned.