The State vs Tejkaran Marwari

Sen, J.—This is a reference by Mr. N.N. Sarkar, Assistant Sessions Judge, Birbhum, u/s 307 of the Code of Criminal Procedure in disagreement with the verdict of a jury.

The prosecution case was briefly as follows: Election to the Union Board at Singhi in Bolpur police-station was to take place on December 2, 1953, and election propaganda and election meetings were being held from about a month and a half before the date of election. On November 13, 1953, there was an election meeting held at Nimtala-Majhipara, a part of village Jahanabad. This meeting was presided over by Prodyot Kumar Mondal, Headmaster of a junior school at Singhi and Mafizuddin was the candidate in whose favour the meeting was held. Mafizuddin was a member of the Communist party. Tejkaran Marwan, accused No. 1 is a landlord of Jahanabad and occasionally he held his "katchery at Jahanabad. According to the prosecution case, just before the meeting was scheduled to be held which was at 5-30 p.m., Tejkaran Marwari with some of his officers came to the meeting and said that he would not allow an election meeting of the rival party to be held within his zemindary. Mofijuddin Korban and others, however, asserted that they would hold the meeting in spite of the protest of the landlord, and thereupon the landlord Tejkaran Marwari with his officers went away and did not thereafter try to interfere with the meeting. The meeting broke up at about 7 or 7-30 p.m. When the meeting broke up, some of the people who attended the meeting decided to go for canvassing to Jahanabad village because many people from Jahanabad had not attended the meeting. "When they were passing by a tamarind tree near the zamindar''s hatchary ghar, it is said, six persons including the two accused Tejkaran Marwari and Md. Azad suddenly came out from bush near the tamarind tree and attacked the party. Korban was in front of the party being 20 or 30 cubits ahead of the others. Tejkaran Marwari gave an order and Md. Azad struck him with a lathi, so that Korban Sheik fell down.

Thereafter under the order of accused No. 1, Korban Sk. was dragged away to the katchary. Mafijuddin, Newaj Ali and others who were in the party of Korban Ali were afraid because of the sudden attack made on them and they ran away. In the early morning next day Mafizuddin started for the thana and an ejahar was lodged at the Bolpur police-station at 6-30 a.m. on November 14, 1953. The Assistant Sub-Inspector was the first to arrive at the locality and he did so at 3 p.m. that day. He found the dead body of Korban Sk. in a house described as the katchary house of the accused Tejkaran Marwari, but the house was found deserted that time except for a wooden chouki and a packet of cigarette. Tejkaran Marwari, Md. Azad, Bhairab Majhi, gomosta of Tejkaran Marwari, were, however, found in a neighbouring house belonging to one Sindhubala Dassi, and they were arrested from there by the police. The police after investigation submitted charge-sheets against Tejkaran Marwari, Md. Azad and others. Bhairab, the officer of the landlord, died before the charge-sheet was submitted. The other accused against whom charge-sheet was submitted were absconding. Accordingly, Tejkaran Marwari and Md. Azad were placed on trial. Both the accused pleaded not guilty. Tejkaran Marwari said that he did not have his katchary ghar in the house in which the dead body of Korban Sk. had been found and he said that he knew nothing about the occurrence. Md. Azad also denied that he had anything to do with the occurrence. Against the two accused a common charge u/s 147 of the Indian Penal Code was framed, namely, for rioting along with other persons with the common object of assaulting Korban Sk. There was a charge u/s 323 of the Indian Penal Code against Md. Azad for voluntarily causing hurt to Korban Sk. and u/s 323 read with Section 109 of the Indian Penal Code against Tejkaran Marwari for abetment of such offence. There was a common charge u/s 304/34 of the Indian Penal Code against both the accused for culpable homicide not amounting to murder by causing the death of Korban Sk. in the katchary ghar.

The jury returned a unanimous verdict of not guilty in respect of both the accused in respect of charge u/s 304/34 of the Indian Penal Code. They, however, returned a unanimous verdict of guilty in respect of charges under Sections 147, 323 and 323/109 of the Indian Penal Code. The learned Judge was of the opinion that the case had not been satisfactorily proved against the accused in respect of any of the charges and he was, therefore, unable to accept the verdict of guilty in respect of charges under Sections 147, 323 and 323/109 of the Indian Penal Code. He agreed with the verdict of not guilty in respect of the charge u/s 304/34 of the Indian Penal Code but in view of the terms of Section 307 of the Code of Criminal Procedure, he refrained from passing any final order in respect of that charge.

The question before us is whether in view of the evidence which appeared before the Sessions Court and in view of the opinion of the Judge and the jury respectively the reference should be accepted.

In the case there were 13 prosecution witnesses examined and among them there were 5 eye-witnesses viz. P.W. 1 Sk. Mafizuddin P.W. 2 Newaj Ali Khan, P.W. 3 Sk. Abdul Kader, P.W. 4 Haji Adal Haque and P.W. 5 Abdul Khalique. They generally gave the same version, namely, that when Tejkaran Marwari with his gomosta and other officers came to the meeting at Majhipara and they objected to the meeting being held within his zamindary, Korban Sk. along with other persons asserted boldly that the meeting would be held in spite of the objection of Tejkaran Marwari; that after the meeting Korban Sk. along with Mafizuddin, Newaz Ali, Abdul Kader, Haji Idal Haque, Abdul Khaleque and others, a party of 9/10, proceeded to Jahanabad for canvassing, as many people of Jahanabad did not attend the meeting, and that when they were passing the tamarind tree about 400 cubits from the katchary ghar of the landlord, sis men including the two accused came out from the bush and assaulted Korban Sk. who was in front of the party and under Tejkaran Marwari''s order, Korban Sk. was dragged to the katchary and the companions of Korban Sk. there upon ran away. They all said that Abdul Kader was carrying a small lighted hassac lantern and that the accused could be recognised by the light of he hassac lantern, and that a lathi-blow fell on the lamp, the glass was broken and the lantern was dropped and it could not subsequently be found.

It appears, however, that there are reasons why the evidence of the said witnesses as given in the Sessions Court could not be accepted as giving a correct version of what had actually taken place. In the F.I.R. lodged nest morning by Mafizuddin he stated that he along with Nawaj Ali, Abdul Kader, Idal Haque, Saktipada Dutta and some other people proceeded to Jahanabad for canvassing. Of the persons thus mentioned in the F.I.R., Bholai, Ishaque and Saktipada Dutta were not examined as witnesses by the prosoecution and naturally an inference should be drawn that if these witnesses had been examined, they would not have supported the prosecution case. At the same time P.W. 4 and P.W. 5 who were described before the Sessions Court as persons present in the party of Mafizuddin and Korban Sk. when they went for canvassing to Jahanabad are not mentioned in the F.I.R. and this also must raise doubt as to their actual presence in the party when they proceeded to Jahanabad. Next, according to Mafizuddin, recognition of the accused was possible because of the light of the hassac lantern which Abdul Kader was carrying and Mafizuddin admitted clearly in cross-examination that if there had not been this hassac lantern, recognition could not be possible. This hassac lantern is not mentioned in the F. I. R. This might be regarded as an omission it the broken lamp had subsequently been recovered from the neighbourhood. It appears, however, from the evidence of Mafizuddin and other witnesses that no trace of the broken hassac lantern could be found next day when the police arrived. Prosecution witnesses 3, 4 and 5 went to the katchary glvar next morning and found the dead body of Korban Sk. there but they also could not find the hassac lantern next morning. Mafizuddin in fact says that neither any broken glass nor any lantern nor even any smell of kerosene could be found at the place next day. In the circumstances, it must appear to be doubtful whether the party was really carrying a hassac lantern and if no such hassac lantern was carried, it is clear that the recognition would not have been possible as Mafizuddin admitted and this must throw doubt on the prosecution case.

In the next place, it appears to be very difficult to understand why Tejkaran Marwari and men of his party should be waiting near the tamarind tree and why they should attack Korban Sk. who was an unimportant member of the rival election party. According to P.W. 1, Korban Sk. was not a member of the Communist Party and neither was he a candidate for election to the Union Board, nor a regular canvasser, and that day''s meeting-was the first election meeting which Korban Sk. attended, according to Mafizuddin. In the evidence before the Coxirt the eye-witness tried to make it out that Korban Sk. had strongly opposed the landlord Tejkaran Marwari when he came and objected to the meeting being held there. Some of the witnesses stated that Korban Sk. went so far as to say that he would hold the meeting with the help of lathis, if necessary. In the F.I.E.. lodged by Mafizuddin, it is not stated at all that Korban Sk. made any protest when the landlord came and objected to the meeting being-held in a part of Jahanabad village. In the F.I.R. it is only stated that Mafizuddin himself told the landlord that he would hold the meeting at the place in connection with the election. It is true that the witnesses other than Mafizuddin could not be directly contradicted with reference to the statement in the F.I.R., but the case as first put in the F.I.R. must be considered as a standard by which to judge the prosecution evidence as presented in court. It was also natural that Mafizuddin and not Korban Sk. should protest, because Mafizuddin was the candidate for whose interest the election meeting was being held that day and he was the principal speaker at that meeting. The other important person present at the meeting was Prodyot Kumar Mondal who is alleged to be a leader of Mafizuddin''s party and who was the Headmaster of Singh junior school. Prodyot deposed as P.W. 5 and he stated at first that when Tejkaran Marwari objected "we said that we would hold the meeting there''''. It appears that he was put further

Questions subsequently and be added that Korban Sk. also said that he would hold the meeting. The subsequent statement of Prodyot Mondal must be taken with some caution, and in view of the Evidence given by Prodyot taken as a whole and in view of the contents of the F.I.R. it must be held that it was Prodyot Mondal and Mafizuddin who took the stand for holding the meeting in pite of the objection of Tejkaran Marwari, and in the circumstances there could be no reason why Tejkaran Marwari should have any grudge against Korban Sk. and should order assault on Korban Sk. or abduction of Korban Sk. to his Katchary Ghar when Korban and other persons were passing by the tamarind ree about 400 cubits from the katchary ghar.

Apart from the three eye-witnesses mentioned in the F.I.R. and not examined as witnesses, it appears that the choukidar of ahanabad was examined in the committing court but this houkidar Harendra was not examined as witness or tendered for cross-examination in the Sessions Court. The local choukidar must be regarded as an important witness because naturally any important incident in the village would be reported to him in the first instance, the thana being 10/12 miles distant, and the houkidar might be invited to accompany the informant to the hana and in fact it would be his duty to do so if invited by any informant. In the circumstances, the choukidar''s evidence would be of great importance and the fact that he was also withheld must also raise a presumption against the truth of the prosecution case as presented in the Sessions Court. It is true that the body was found in the deserted house described as the katchwy ghar of Dejkaran Marwari, but the prosecution version appears to be satisfactory and doubtful in view of the circumstances already liscussed and it is difficult to hold with certainty that the occurrence took place in the way alleged by the prosecution.

In the circumstances, we must agree with the learned Judge that there was considerable doubt in the case as to the truth of the prosecution version and in the circumstances of the case, the accused should not be found guilty even of the charges under Sections 47, 323 and 323/109 of the Indian Penal Code. We must, of course, agree that the verdict of the jury in respect of the charge u/s 304/34 of the Indian Penal Code was correct.

In this connection, we must point out that the learned Judge was wrong in admitting the inquest report as a piece of documentary evidence for the defence. The inquest report, being a report of what the Assistant Sub-Inspector actually found on inspection of the dead body and what he ascertained by questioning the persons present could not be admitted as evidence either for the prosecution or for the defence. It would only he open to the defence to cross-examine the prosecution witnesses in the light of any material that they might get from the inquest report but the inquest report itself could not be admitted as evidence and could not be used directly for showing that the prosecution witnesses had given some other version before the Assistant Sub-Inspector who was in any case not a man competent to investigate. We do not, however, think that in this particular case the wrong admission of the inquest report as a piece of documentary evidence has affected the trial substantially and there is no point, therefore, in directing a retrial.

We, therefore, accept the reference and set aside the verdict of the jury in respect of the charges under Sections 147, 323 and 323/109 of the Indian Penal Code and accept the verdict in respect of the charge u/s 304/34 of the Indian Penal Code and direct the accused Tejkaran Marwari and Md. Azad be acquitted of all the charges against them and set at liberty. They are also discharged from their bail bonds.

Mitter, J.

I agree.