NAZIR Vs. REX

JUDGEMENT

(1.) In view of the divergence of opinion between this Court on the one hand and the High Courts of Calcutta, Lahore and Patna and the Chief Court of Sind on the other in regard to the interpretation of Sections 59 and 46, Criminal P. C., the following question has been referred by a Division Bench for decision :

(2.) The facts found by the Division Bench are that on the night between the 29th and 30th of March 1949, an armed dacoity took place in the house of one Debi Prasad in village Basta in the District of Farrukhabad. There were about 15 or 20 dacoits and some of them were armed with guns and pistols. Kanhaiya Lal, one of the neighbours of Debi Prasad, saw the commission of this dacoity and recognised the faces of some of the dacoits at that time. After the dacoits decamped with the booty, Kanhaiya Lal alone pursued them, but he came back shortly afterwards. A short while later he again started in pursuit of the dacoits taking with him this time four other persons, Shri Krishen, Ghaus Ali, Buddha and Akhtar Ali. They followed the dacoits according to the footprints left by them on the ground and after they had covered about six miles from the place of the dacoity they noticed twelve men going towards Saraimiran railway station. Kanhaiya Lal recognised among these eight or nine persons those who had come out of the house of Debi Prasad at the time of the dacoity. A little later two persons out of the twelve took another way and Kanhaiya Lal sent Sri Krishen, Ghaus Ali and Buddha to follow them while he and Akhtar Ali continued to follow the remaining ten. The pursuit continued for some distance and when they were about a mile and a half from Saraimiran, Kanhaiya Lal saw a bus coming from Tirwa and going towards Saraimiran. He sent Akhtar by the bus to inform the police suggesting that the police should try to arrest the dacoits at Saraimiran railway station to which place he thought the dacoits were going. Kanhaiya Lal was thus left alone and he continued to follow the ten dacoits. After a short distance four more of the dacoits left the company of the other six and proceeded in a different direction. Kanhaiya Lal continued to follow the other six dacoits. Proceeding further the dacoits passed by the field of one Basant Singh in which he was working. Basant Singh challenged the dacoits. Presumably his curiosity was aroused because he found them armed with guns and pistols. Nazir retorted, "I am your father." Basant Singh felt suspicious about them and shouted to his village people to come with lathis. Upon this, Nazir appellant fired his pistol at Basant Singh, but the latter sat down and the shot missed. Meanwhile a number of the residents of the village of Basant Singh arrived and they all chased the dacoits. A little further Lallu Singh, nephew of Basant Singh, tried to arrest the dacoits. Then Nanhu appellant fired his shot at Lallu Singh and injured him. The third man who attempted to arrest the dacoits was Bahadur Singh, another nephew of Basant Singh. Nazir fired at him and he was also injured. The fourth man who made this attempt was Kanhiya Lal. He too was fired at by Nazir and was injured. With three persons injured among the pursuers they allowed a little more distance to intervene between themselves and the dacoits, but they continued the chase. The pursuers were joined by others also as they proceeded and their number swelled to about 40 or 50. Two such persons who joined the party were Thakuri and Sireshtey who were working in a field which was close to the route by which the dacoits were proceeding. They too attempted to arrest the dacoits but they too were fired at and were injured. The seventh man who attempted to arrest the dacoits was one Chhotey Lal. Nazir appellant fired at him and injured him. The eighth man attempting to arrest the dacoits was Behari, brother of Chhotey Lal. Nanhu fired at him and injured him. The ninth attempt to arrest the dacoits was made by Basant Singh and this time, instead of firing at Basant Singh, Nazir picked up a clod of earth and threw it at Basant Singh. This led the pursuers to infer that the dacoits had, exhausted their ammunition and thereupon they fell upon the dacoits and captured them. Country made pistols were recovered from the possession of both the appellants. Thakuri died within an hour of his receiving the injuries. The casualties among the pursuers were thus one killed (Thakuri) and six fired at and injured.

(3.) Learned Sessions Judge convicted Nazir under Sections 302 and 307, Penal Code and Section 19 (f), Arms Act and sentenced him to death under ' the first offence and to seven years and two years' rigorous imprisonment respectively under the last two offences. The sentences of imprisonment were to run concurrently, Nanhu was convicted under Section 307, Penal Code, and Section 19 (f), Arms Act and sentenced to seven years and two years' rigorous imprisonment respectively, the sentences to run concurrently.