MALLA MAHMADOO Vs. STATE

JUDGEMENT

(1.) .These are three first appeals by Malla Mahmadoo, Gulla Mir and Hasan Nanwai against an order of the learned Special Magistrate dated 25th poh 2006 and will be disposed of by this judgment. The three accused appellants, Malla Mahmadoo, Gulla Mir and Hasan Nanwai were proceeded against in his Court under Section 406 and other sections of the Ranbir P.C., and were sentenced as under: Malla Mahmadoo to five years' rigorous imprisonment and Rs. 500 fine, and in default of payment of fine to undergo rigorous imprisonment for a further period of two years; Gulla Mir to two years' rigorous imprisonment with a fine of Rs. 200, and in default of payment of fine to undergo rigorous imprisonment for a further period of one year and Hasan Nanwai to one year's rigorous imprisonment with a fine of Rs. 100 and in default of payment of fine to undergo rigorous imprisonment for a further period of six months.

(2.) THE case against Malla Mahmadoo is that he was put in charge of 300 mds. of wheat which were meant to be doled out as relief to the people residing in Devar. His duty was to have weighed out the wheat to people who had secured slips from the Ghat Munshi. It is alleged that out of this wheat which was in his charge he sold two mds. of wheat for a sum of Rs. 65 to accused 3 Hasan Nanwai. This wheat is alleged to have been carried by Gulla Mir accused 2 to Hasan Nanwai accused 3 through two persons by name Akbar Dar and Mohd. Dar. The prosecution allegation further is that when this wheat was in the process of being carried away by Hasan Nanwai, the news leaked out and the neighbouring villagers came and seized the wheat and set the police machinery in motion.

(3.) THIS case is a very badly investigated one. The police at the outset got four people by name Samad Shah, Ghani Dar, Mohd Dar and Akbar Dar examined under Section 164, Criminal Procedure Code, as carriers of the wheat. These four persons were produced to state their having been engaged by Gulla Mir for carrying wheat from the shop where the Government stocks of wheat lay to the house of Gulla Mir where from it is alleged to have been handed over to Hasan Nanwai. But later on we find that these four persons dwindled to only two, Samad Shah and Ghani Dar dropped out and only two persons Mohd Dar and Akbar were produced at the trial to prove the fact of carrying wheat from Malla Mahmadoo to Gulla Mir's house. These two witnesses have not been cross-examined as to the statements that they had made under Section 164, nor was their attention specifically drawn to that portion in which they had stated that the carriers of this wheat were four persons, i.e., Samad Shah, Ghani Mir, Mohd. Dar and Akbar Dar, and as such this portion of the statement cannot be used to contradict their statements. The learned counsel appearing on behalf of the accused has not questioned these witnesses in the light of their previous statements and if he has failed to do what was expected of him, even the learned Magistrate has fared no better. The copies of the statements recorded under Section 164, Criminal Procedure Code, were on the file. We would have expected the Magistrate to have got this most important point cleared by the prosecution. But, nonetheless, the fact remains that the police had got four people examined as the alleged carriers of this wheat and the police itself had produced the copies of the statements of these four persons along with the Challan. From all this it becomes quite obvious that at one time the case of the police was that four people were the carriers, but at the trial they shifted their ground and their case came to be that only two people were the carriers. Under such circumstances, it is not at all easy for us to rely or act upon the evidence of the two witnesses by name Mohd. Dar and Akbar Dar. It is the police itself which has put material on the file to discredit their veracity.