STATE OF BIHAR Vs. ADAM HUSSAIN

JUDGEMENT

(1.) This appeal is directed against the acquittal of ten persons who with another four persons were tried for the offence under sections 147, 353, 323 and 379 of the Penal Code in the Court of the Munsif-Magistrate, 1st Class Gopalganj, in the district of Saran. By the judgment delivered on the 16th January, 1961, these ten persons were convicted under sections 147 and 353 of the Penal Code and were given one year's rigorous imprisonment each on each of the two counts with a direction that the sentences were to run concurrently. They were acquitted of other charges. The remaining four persons were completely acquitted of all the charges. Against their conviction the ten respondents of this appeal preferred an appeal to the Sessions Judge. The Additional Sessions Judge of Saran heard the appeal and set aside the conviction and sentence of all the accused persons under both the sections 147 and 353 of the Penal Code. The State has preferred the present appeal against their acquittal.

(2.) The prosecution case against the respondents was that on the 14th October, 1959 Mr. R. Raman, Deputy Superintendent, Central Excise (P.W. 11) received a letter (Ext. 3) from the Collector of Central Excise to enquire about the smuggling of contraband tobacco within Barauni Range. He deputed P.W.'s 8 and 12 to make preliminary enquiries. On the 16th October, Mr. Raman went to Gopalganj accompanied by an inspector (P.W. 1) on the 17th October he obtained several search warrants from the prescribed authority against various persons of different villages including respondents Adam Hussain and his son Abedin. Those search warrants were executed on the 18th October, on the 19th October, the Superintendent of Central Excise (P.W. 2) and an inspector (P.W. 3) arrived at Gopalganj and it was decided that further search should be undertaken. Some more search warrants were obtained, two of which were against persons in village Pipra and four for village Kamalpur. The two search warrants for Pipra were against respondents Sheikh Ali Raza and Md. Islam. Armed with those search warrants the excise party left Gopalganj for Kamalpur at 1 P.M. in a staff jeep. They executed some of the search warrants and came to village Pipra. P.W.'s 1, 2, 3, 4, 5 and 6 went to the house of respondent Adam Hussain but he was not present there. They sent for him and his two sons Abedin and Mustaquim and also Ali Raza, respondents 1, 2, 4 and 7. Adam Hussain was asked to measure the stock of tobacco kept on the roof of his house. Thereupon he refused to do so and on an alarm raised by him a mob assembled there and began to assault the excise party. They left the place and took shelter in the jeep. The driver of the jeep was not there. He had gone away somewhere. One Rehmatulla tried to save the excise party and with his help and with the help of Suraj Dubey and Swainath Prasad the jeep was pushed up to Manjha where the injured persons were given first aid in the Manjha dispensary by the medical officer. On information given by the jeep driver who had reached Gopalganj earlier, the officer in charge of the police station came to Manjha and recorded the fardbeyan of the informant (P.W. 11), the Deputy Superintendent of Excise. After investigation charge sheet was submitted against 14 accused persons and they were put on trial with the result as stated above. The injured persons were sent to the Medical Officer, Gopalganj for examination of their injuries.

(3.) The accused persons did not deny that the officers were assaulted but their defence was that they did not assault the officers. They suggested in cross-examination of prosecution witness no. 1 that two girls were proceeding ahead of the jeep who did not clear the way when the horn was blown. When the driver stopped the jeep near them, the girl got frightened and ran towards the village. The excise officers also began to go towards the village in connection with their work and they were assaulted by the villagers under a wrong impression that they were trying to misbehave with the girls. The accused further said that they had been falsely implicated in the case at the instance of their enemies. Apart from this general defence, respondents Taiyab Hussain, Ali Raza, Mobarak Hussain pleaded alibi saying that they were in the court of the Sub-divisional Officer, Gopalganj from 10.30 a.m. to 4.30 p.m. on the day of occurrence in connection with a case under section 145, Criminal Procedure Code. Rashid Mian, respondent no. 10, also took a plea of alibi that he was lying ill on that date at the house of his relation in village Ekma and was under treatment of the Medical Officer of Ekma Block.