HASNU Vs. REX

JUDGEMENT

(1.) Haanu, Earn Autar and Bhullar, Ahirs, all residents of village Marhun and Ramlal resident of Malakharhar and Pudai resident of village Mohammadpur along with six other Ahirs were prosecuted for offences under Sections 302, 147, 485/149 and 20l/l49, Penal Code. Haanu, Earn Autar, Bhullar, Eamlal and Pudai have been convicted by the learned Additional Sessions Judge of Allahabad under all those sections and sentenced each to transportation for life under Section 302, Penal Code and to one year's rigorous imprisonment under Section 147, two years' rigorous imprisonment under Section 435 and three years' rigorous imprisonment under Section 201, Penal Code. The trial for the offence under Section 201, Penal Code was with the aid of a jury. The other six accused have been acquitted. The above named five accused have come up in appeal to this Court.

(2.) The prosecution case was as follows: On 17th June 1946, in village Marhun there was a riot between three Mussalmans, Suleman, Kallu and Mahboob on the one hand and the Ahirs in-eluding the accused on the other. This incident is a subject-matter of a separate case under S3. 147/807, Penal Code. As a measure of retaliation, the accused formed members of an unlawful assembly on 18tb June 1946 at about noon in the sandy tract of land (Kachhar) on the bank of the river Ganges in village Marhun where the water-melons of one Mustafa were growing. Mustafa and his servant Bandhu Chamar were loading water-melons in a cart which was lent by one Mijajuddin, brother of Mustafa, and which was driven by the said Bandhu Chamar, when all of a sudden fifty or sixty Ahira armed with lathis came shouting from Mohammadpur side crying "kill the Mahomedans." When these Ahirs were at a distance of 1 or l bighas from the place where the cart was standing, Mustafa and Bandhu on seeing the Ahirs and hearing their cries ran towards the river Ganges and the Ahirs chased them up to the edge of "the river. Mustafa and Bandhu jumped into the river and swimming across one of the streams of the river landed on a sandy island in the river. The Ahirs then burnt the cart with the water-melons and then they set fire to a hut of one Mahboob, and thereafter they pulled one Naimuddin, a resident of mauza Eudarpur from out of another hut of one Bafi and beat Naimuddin to death by strik. ing him with lathig and disposed of his dead body by throwing it into the Ganges near the burning ghat. Mustafa and Bandhu swam across another stream of the river and when they were mid-stream they were picked up in a boat and left on the ghat near village Mahdowri from where they went on foot to village Eudarpur. At village Eudarpur they learnt that the Sub-Inspector was already in the kachhar of village Marhun in connection with the investigation of the occurrence of 17th June 1946. They then went to him in the kachhar and Bandhu lodged the first information report, This whole incident was seen by Khairuddin aged twelve, Mushtaq aged twelve, Zahoor aged fourteen, Eajjan aged fourteen, and one man named Abdul Eauf.

(3.) The first information report in this case was made by Bandhu at 5 P. M. on 18th June 1946, at the place of occurrence to the Sub-Inspector who had reached the place soon after the incident had taken place. The incident having taken place at about 12 noon, there was considerable delay in making the report. This delay is sought to be explained by the story of Bandhu and Mustafa having gone to the other side of the river and then coming to village Eudarpur by passing through village. Mahdowri and then coming to village Marhun. Although Mustafa admits that he was present before the Sub-Inspector at the time of the making of the report, we find that the report is lodged in the name of the servant Bandhu Chamar. Why the master Mustafa should not have made the report himself when he was there at the spot and why it was lodged in the name of an illiterate servant, have not been explained. Zahoor (p. W. a) admitted in his statement made before the committing Magistrate that at Budarpur when Mustafa and Bandhu had arrived, the village people collected together and had consultations as to what should and what should not be dictated in the first information report: Ghar pahunchne he thori arise bad Mustafa aur Bandhu aye, Oaon walon ko ekalha hiya aur phir salah huyi hi rapat men kya Uhhawan aur kya na Ukhawan. The prosecution witness Bandhu also admitted in the Court of the committing Magistrate, though he denied it in the Court of Session, that the village people had gathered together and had had consultations before the first information, report was made. It, therefore, appears that the report was not the spontaneous expression of what Bandhu had seen but was the outcome of a consultation amongst all the interested people in the village. We cannot, therefore, attach that amount of importance to a report like this as we would otherwise have done.