EMPEROR Vs. MOTILAL MALLIK

JUDGEMENT

(1.) This reference is for confirmation of the sentence of death passed on one Moti Lal Mallick, on his conviction under Section 302 read with Section 34, I.P.C. There is also an appeal by the said Motilal Mallick against his conviction and sentence under the above sections as also against his conviction under certain provisions of the Arms Act, in respect of which no separate sentences were passed. The trial was before a tribunal composed of three Commissioners appointed by the Local Government under the provisions of the Bengal Criminal Law Amendment Act of 1925 and this being so, an appeal lies to this Court on the facts as well as on questions of law. One Kalachand Shaha was tried along with Motilal Mallick, but was acquitted, and although his case is not before us, it may at once be said that the fact of his acquittal has been urged before us as one of the grounds for not placing complete reliance on the evidence of the prosecution witnesses. It appears that the case against Kalachand failed by reason of certain defects in the evidence of identification. No question of identification, however, arises regarding Motilal Mallick and the defects referred to above are therefore no ground for regarding the evidence of the prosecution witnesses with suspicion so far as the present case is concerned. Having said this I do not propose to refer further to the case of the other accused Kalachand Shala.

(2.) The allegations on which the charges are based are briefly as follows: The principal persons concerned in the occurrence which gave rise to this case are, with the exception of witness Guljar Shah, residents of a village called Baburail which appears to be either a part, or at any rate on the outskirts of the town of Narayanganj in the district of Dacca. Witness Guljar Shah is a resident of another portion of Narayangunj or its outskirts known as Paikpara but he was well known to the people of Baburail by reason of his close connection with the local mosque. The accused Motilal is a resident of a village called Deobhog, which adjoins Baburail to the west. His house is on a continuation of Baburail Road (which runs from east to west through Baburail) and is only a few hundred yards from the residences of the principal persons concerned in this case. On the night of 9th April 1934, three men of Baburail, namely, Alfajuddin, Ramjan and Sadey Akkas, together with Guljar Shah of Paikpara, decided to sit up at night for the purpose of detecting an intrigue that was said to be going on between the daughter of one Abdul Gani and her brother-in-law Samad. These four men took their seat in the verandah of the house of one Kameruddin Sardar, which is situated just to the north of Baburail Road. Seeing a man enter Abdul Gani s bari which is almost immediately to the west of Kamaruddin s bari, they sent Saday Akkas to Gani s bari in order to keep a closer watch over it, and meanwhile Ramjan was sent to call another neighbour, Muzaffarali by name. Muzaffar came to Kamaruddin s house on being called by Ramjan, and he together with Guljar Shah, Alfajuddin and Ramjan remained seated together on Kamaruddin s verandah. Shortly after 2 a.m. they saw three men dressed in dhotis and shirts, and having no shoes on their feet, going along Baburail Road, from west to east. Their suspicions being aroused, they accosted these three men, and went a short distance along the road with them as far as the house of one Ali. There they all stopped and presently Muzaffar and his companions attempted to seize the men and to search their persons.

(3.) Two of the men thereupon pulled out revolvers and fired at the two men who had caught hold of them, namely, Ramjan and Muzaffar, while the third man (the present accused) tried to draw a dagger that he had in his waist belt. Muzaffar and Ramjan, on being shot, released their hold and the two men who had shot them then made off towards the east, pursued by Ramjan, while Muzaffar remained on the road at the place where he had been shot. Meanwhile Guljar, seeing that the accused Motilal was attempting to draw a weapon from his waist belt had flung his arms round him, with the result that they rolled down the slope of the road together, and remained their struggling with one another. Just then Ali in front of whose house this occurrence had taken place, came to the spot, together with his immediate neighbour Ismail. Guljar Shah called out to them that the man who was struggling with him had a dagger, and asked them to take it away from him whereupon Ismail, seeing a dagger in the accused s hand, twisted his hand and managed to take it from him. The accused was then tied up and on his person being searched, a knuckle duster was found in his pocket. I ought to have said that at an earlier stage of the proceedings a bundle containing three Balaclava helmets (locally known as "monkey caps") had fallen to the ground from under the arm of the present accused, and had been picked up by Muzaffar. Thus, immediately after the occurrence, the position was that the accused Moti had been seized by Guljar Shah with the help of Ismail and Ali and that the dagger which he had already drawn, evidently with a view to using it, as well as a knuckle duster, had been found on his person. Muzaffar was still on the road in a wounded condition, and Ramjan and the present accused s two companions had disappeared into the darkness.