VADLA KISTIAH Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) THESE are four appeals by accused Vadla Kistiah, Kishen Singh, Gurrapu Ramiah and 'aare Kistadu against the conviction and sentence of 10 years rigorous imprisonment awarded by the Special Judge, Nalgonda on 30-9-1950. The prosecution case is that one Nakkala Baliga, who is a member of the Communist Party which was carrying on depredations and unsocial activities, had demanded Rs, 2,000/- and two khandies of grain from deceased Mahaboob All who was the agent of a Jagirdar. Previous to this the cattle of the village had been taken away by Nakkala Baliga and his party and the villagers had to pay Rs. 200/- to get them back. When the demand for Rs. 2,000/- and 2 khandies of grain was made Mahaboob Ali promised to send word to the Jagirdar and asked them to wait for his reply. It is alleged that the deceased was threatened with some other kind of treatment if the amount was not paid. Inasmuch as no reply was forthcoming Nakkala Baliga, along with the four aforesaid accused and some others, visited Adivi Masjid on the night of 10-3-1949 at about 9 p. m. , entered the house of the deceased Mahaboob Ali, beat him, tied his hands as well as those of his two sons, Shuj at Ali and Syed Yousuf Ali, behind their back, took them to a nearby jungle and there shot them. The dead bodies of these three persons were found the next day. An information report was given. A Panchanama was held and the accused were arrested subsequently. The learned Special Judge convicted Nakkala Baliga and the four accused of offences under Section 301, Hyderabad Penal Code, (corresponding to Section 334, I. P. C.) read with Section 125, Hyderabad Penal Code (corresponding to Section 149, I. P. C.) and sentenced each of them to 10 years rigorous imprisonment. In view of the paucity of evidence relating to the accused being involved in the actual shooting of the deceased, the Special Judge gave the benefit of doubt and discharged them of the offence under Section 243, Hyderabad Penal Code (corresponding to Section 302, I. P. C. ).

(2.) WE have gone through the evidence in this case and are in accord with the view of the learned Special Judge that the accused have been proved to have visited Adivi Masjid on the night of 10th March, along with Nakkala Baliga and others, entered the house of Mahaboob Ali, beat him, insulted him, tied his hands as well as the hands of his two sons and took them away to the nearby forest where they were shot. (After reviewing shortly the evidence his Lordship reiterated this conclusion and proceeded:)

(3.) THE learned Advocate for the accused strongly urges, on the authority of - Kalaporla Saidulu v. Hyderabad Government AIR 1953 Hyd 249 (A), that where the case of the prosecution is that the person abducted has been murdered by the abductor, there is no scope for a charge under Section 364, I. P. C. In the aforesaid case, one Venkateswararao a Congress worker was forcibly abducted by the accused and his comrades (five in number) and after that Venkateswararao was not heard of again. The accused were charged under Sections 125, 301, and 243 Hyd. P. C. The accused were acquitted of the charge of murder as there was no evidence, but were convicted under Section 301, Hyd. P. C. On the authority of - Akam Sheikh v. Emperor AIR 1947 Cal 35 (B); - Ijjatulla Akanda v. Emperor AIR 1945 Cal 42 (C) and - Upendranath v. Emperor AIR 1940 Cal 561 (D), Manohar Pershad and Siadat Ali Khan JJ. , held that where the case of the prosecution is that the person abducted has been murdered by the abductor there is no scope for a charge under Section 301, Hyd. P. C. In that view they acquitted the accused.