Sheikh Yusuf and Others vs Emperor

Meredith, J.—This is an application on behalf of five persons, who were convicted and sentenced by a first class Magistrate as follows: all five u/s 148, Penal Code, to one year''s rigorous imprisonment each, Hanif, Halim, Ishaque and Alauddin to a further three months each u/s 828, and Yusuf to a further six months u/s 824, these additional sentences to run concur, rently. Upon appeal the learned Sessions Judge of Monghyr has merely modified the convictions upon Hanif, Alauddin, Halira and Ishaque, substituting convictions u/s 147, Penal Code, and reducing the sentences to six months.

The prosecution case was that on 9th December 1944, the informant Mohiuddin was sleeping at his khalihan. When he awoke, finding that two of the petitioners were removing his crops, while the other three were standing in front of him, he got up, and gave the petitioner Hanif a lathi blow on his mouth and then ran away. The four petitioners, except Hanif, then gave chase, and assaulted him. Yusuf was said to have used a bhala, Halim a bana, and the rest lathis.

The defence was that Mohiuddin had been caught with a village girl, Sogra, and had consequently been assaulted by the villagers.

The learned Judge has unfortunately used the police diary to the prejudice of the accused. He says that he felt himself justified in doing so, as a special request was made on behalf of the defence that the diary should be called for and perused. Mr. Safdar Imam, who represents the petitioner in this Court, also argued the appeal before the learned Judge, and he states categorically that he never asked the Judge to peruse the diary. He merely asked him to refer to the police final report, which was definitely in favour of the accused, the police having reported that the alleged eye-witnesses had not identified any one before them but had given hearsay stories, that the complainant had changed the place of occurrence, and that the Sogra story was true. It must be said, however, that even if the defence had requested the learned Judge to examine the police diary, that would not justify him in using it to the prejudice of the accused. It seems impossible to avoid the conclusion that he has allowed his mind, to be influenced by what he found in the diary and what was not before him. In dealing with the diary he says:

The request was perhaps ill-advised as a perusal of the police diary only strengthens the prosecution case and indicates that the defence case was subsequently concocted.

The defence case was supported by the evidence of several witnesses, and, if it was contradicted by something which the Judge found in the diary, it was supported by what the police said in the final report. It is impossible to know what view the Judge would have taken of the evidence of the defence witnesses had he not used the diary. That is not all. The Judge also relies upon the diary for a finding; that the names of the accused persons were given but to a constable and a chaukidar directly after the occurrence.

There was no such evidence before him, as the constable and chaukidar were not examined as witnesses. He has also taken from the diary the fact that there was some sort of admission before the police by some one that two of the accused had been present at the scene of the occurrence, and one of them had received an injury at the hands of the complainant, or rather, according to the Judge, not at the hands of the complainant but from his teeth. Having dealt with the contents of the diary at length, the Judge proceeds:

I, therefore, hold that the prosecution in this case has fully proved the charges against the accused persons and that the defence case was an after-thought and cannot be accepted.

In the circumstances the decision of the learned Judge cannot be maintained. We have considered whether the case should be remanded for re-hearing the appeal, but there are other defects in the judgment, and there is so much uncertainty as to the circumstances in which the assault took place that, in my opinion, a remand would not be warranted. The common object, and the sole common object, specified in the charge was to commit theft. That common object was most certainly not established. Mohiuddin in the first information had made it clear that he awakened and found the petitioners standing, and it was his inference that they had come to commit theft. The learned Judge says:

Even if the story of theft be regarded as an after-thought, the complainant not unnaturally assumed that the accused persons had come there for some nefarious purpose.

That, however, will not do. No doubt, it is possible that the petitioners had come with the common object of assaulting Mohiuddin, but they were not charged with the common object of committing assault, and had the charge been different the defence might possibly have taken a different course. Moreover, while if the prosecution evidence be accepted, it is clear that four at least were actuated by a common object of assaulting Mohiuddin, that is by no means so obvious with regard to Hanif, who merely stood, received the first blow from the complainant, and apparently did nothing more. The common object of assaulting even if established with regard to four persons could not be used to justify a conviction for rioting.

A common object must be established which is common to at least five persons. Then, again, Hanif, who admittedly took no part in the assault, has been convicted for the specific offence u/s 328. It may well be that the petitioners, or some of them, did assault Mohiuddin, but the circumstances in which the assault took place and the motive for it appear to be wrapped in uncertainty, and we cannot lose sight of the fact that'' Mohiuddin admitted that it was he who struck the first blow. Whatever the reason, he struck one of the petitioners before anyone struck him.

Having regard to all these features of the case, I am of opinion that a remand is contra-indicated, and I would accordingly make the rule absolute, allow the application, and set aside the conviction and sentences of all the petitioners.

Imam, J.

I agree.