Wajid Ali and Others vs Emperor

Ross, J.—Of the twenty-two appellants, their counsel Sir Ali Imam has withdrawn the appeals of ten, viz., 13 to 22. The sentence of appellant 22 Abdul Rahman has already expired and the sentences of appellants 13 to 21 are on the point of expiring. We are therefore concerned only with the appeals of appellants 1 to 12. Of these, appellant 1 has been sentenced to five years'' rigorous imprisonment, appellant 2 to three years; appellants 3 to 11 to eighteen months each and appellant 12 to one year, in addition to small fines.

The case arose out of a communal riot in the town of Sasaramon 16th April 1926. The appellants were convicted by the learned Assistant Sessions Judge of Patna in agreement with the verdict of the jury. That verdict was a majority verdict in the case of appellant 1 Hakim Wajid Ali, and a unanimous verdict in the case of the others. The principal charge was one u/s 326 read with Section 149, I.P.C. Appellants 1 and 2, were also convicted u/s 148 and the other appellants u/s 147. The point of differentiation between the first two appellants and the others was that the former were armed with guns in this riot.

Learned Counsel advanced four points of misdirection in the charge to the jury. The first was the manner in which the learned Judge dealt with the first information lodged by Fakira Khan one of the appellants. He said that that first information had been judicially found to be false and that the decision of the Magistrate had been affirmed by the Sessions Judge. He went on to say that this decision was not binding on the accused or on the jury so that they could come to a different conclusion on the point on the materials before them. Learned counsel contended that the charge ought to have been in stronger terms and that the jury should have been told that they were not to be influenced by this judicial decision and that they should discard it from their consideration.

He referred to the case of Hari Charan Das Vs. Emperor, . In that case what had been referred to at the trial was the conviction of a co-accused, evidence of which was inadmissible and the jury had to be warned not to take it into account at all. In the present case the first information lodged by Pakira Khan was relevant on many grounds and the jury were bound to consider it. The fact that it had been judicially found to be false was irrelevant and the learned Judge properly had them that that decision was not binding on them and that they were at liberty to form their own conclusion. I do not think that there is any defect in this part of the charge.

The next point urged was in connexion with three of the appellants, Fakira, Bashiruddin and Kabiruddin, two of whom, Bashiruddin and Kabiruddin were injured. The objection taken to this part of the charge is that the learned Assistant Sessions Judge has used the defence of these appellants to supply a defect in the prosecution evidence. The argument-only applies to the cases of Bashiruddin, and Kabiruddin the point being that they had not been named in any of the first informations; and in dealing with that point, the learned Assistant Sessions Judge drew the attention of the jury to the fact that according to the defence evidence they came to the mosque at or about the time of the occurrence and sufferred injuries.

The argument is that if the defence was to be used, it should have been used as a whole, namely, that the Alamganj mosque was attacked by the Hindus and that it was in that connexion that these men were present and were injured; whereas the learned Judge has taken this defence as an admission of the resource of these persons at the occurrence which the prosecution alleged. Now the learned Judge was entitled to point out that these men had injuries on their persons. The case for the prosecution and the case for the defence had been fully stated; and it was, in my opinion, open to the learned Judge as an argumentative point, to bring to the notice of the jury the fact that the defence involved the presence of these persons at or about the place and time of the occurrence. The charge does not go further than that and is not in my opinion misleading.

The next point was that the learned Judge made a mistake about the age of the injuries on certain of the appellants. They were injured on 16th and were examined by the Doctor on 19th. They themselves told him that their injuries were four days old (this being their method of calculation) and the doctor agreed with that statement. The learned Assistant Sessions Judge commenting on this has said in a single line of his charge that if the injuries were four days old on 19th, the date of injury would be 15th and not 16th. This statement in. the charge, in view of the doctor''s evidence, is plainly a mistake and is indefensible. But the matter is of no great consequence and can hardly in any view have led to a failure of justice.

The last point was that the learned Judge in discussing the motive stated a case which is neither the case for the prosecution nor the case for the defence, but an intermediate case, because he suggests that if there was an attack on the mosque, the Muhammadans might well have retaliated and rioted and looted as the prosecution case is that they did, while the prosecution did not in fact admit that this was the origin of the occurrence. It seems to me, however, that the learned Judge has not so much stated an intermediate case as suggested that both occurrences might have happened. There might have been an attack on the mosque and that would have led to this rioting and looting of the property of the Hindus. The cases of both sides were fairly put before the jury and there is nothing misleading in this part of the charge.

Beading the summing up of the evidence led at this long trial which lasted from 23rd May until 9th July, it seems to me impossible to take any other view than that the learned Judge laid the whole case before the jury with great care and ability and impartiality. He discussed the evidence dispassionately and left out nothing material. It is hardly possible that in a case of this magnitude some defects in the charge may not be discovered, but there is nothing substantial in any of the grounds taken in this appeal.

A minor point, a point of law, was also raised, namely, that the learned Judge erred in refusing to furnish the accused with a copy of the statement made to the police by a witness who was tendered by the Public Prosecutor but not examined. It appears that this witness Basdeo Singh (Witness 12 a constable) was tendered by the prosecution on 1st June and was discharged without being examined or cross-examined; and; on 20th June, the defence applied for a copy of his statement to the police. u/s 162, Criminal P.C. a copy could have been given in order that it might be used for contradicting the witness; but as the witness had made no statement, the learned Judge in my opinion rightly refused the application. In any case, the point is of academic interest only.

The substantial question in the case is the question of sentence. Sir Ali Imam has pointed out that however serious the occurrence may have been, it took place long ago and the appellants were subjected to the harassment and expense of a long trial with numerous interlocutory proceedings. There seems to be no sufficient reason for differentiating the sentences passed on appellants 3 to 11 (eighteen months) from that passed on appellant 12 (one year). The reason for the severer sentences on the first two appellants, namely, that they were armed with guns, while it is a good ground,, does not seem to me to necessitate the-sentences that have been passed. The learned Judge evidently placed Abdul Khair, appellant 2, in the same category with appellant 1 Hakim Wajid Ali, but on account of his youth--he is 21 years of age--he sentenced him to three years rigorous imprisonment instead of five. In my-opinion the sentence of Hakim Wajid Ali should be reduced to three years'' rigorous imprisonment and the sentence on Abdul Khair to one year. I would also-reduce the sentences of appellants 3 to 11 to one year''s rigorous imprisonment each and would dismiss the appeal of appellant 12. The sentences of fine will stand. With these modifications of the sentences, the appeal is dismissed.

Jwala Prasad, J.

I agree.