EMPEROR Vs. YAR MUHAMMAD

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Rajshahi in respect of the conviction of a man named Yar Muhammad who was found guilty of an offence under Section 189, I. P.C., and sentenced to a fine Rs. 50 and in default to rigorous imprisonment for two months. The allegation against Yar Muhammad shortly stated was this: he had a brother of the name of Kasim, who had been placed under police surveillance by an order of the Superintendent of Police, dated 2 April, 1929. That order was apparently made under the provisions of or rather the directions contained in Regn. 491, Clause (a), Bengal Police Regulations, 1927. The two brothers apparently lived in the same house though they occupied separate huts. On the night of 5 April 1929 somewhere about 1 a. m., two constables, named Sital Singh and Afzal Khan, came to the house and called out the name of Kasim. In so doing they were apparently carrying out the kind of duty referred to in Regn. 495, Clauses (b) and (g). Upon hearing the constables, according to the story of the prosecution, somebody inside the house replied telling them to wait and they accordingly did wait.

(2.) Then the accused Yar Muhammad came out of the house with a lathi in his hand and enquired why they came; and they thereupon explained that they were police constables and that they had come to enquire about the dagi Kasim. Upon that, the accused threatened that he would break their heads with a lathi when next they came to look for Kasim. While this was going on, Kasim himself came out and stood by. The constables then went away without making any further trouble and made a report to the head constable who in turn reported to the officer-in-charge. The defence put forward on behalf of Yar Muhammad was that the constables had knocked at the wrong door-that is the door of his house- and not the door of Kasim's house at all and that Yar Muhammad only objected to the loud shouts and that the whole story of threats or assault was a pure exaggeration. He also seems to have set up as an alternative defence that he was not at home on the night in question and that he was away at Milki on process-serving duty. The only witnesses called on behalf of the prosecution were the two constables assaulted, the town head-constable and two other officers from the English Bazar police station. There was no independent witness on behalf of the prosecution. On the other hand, the defence called two witnesses to support the alibi which Yar Muhammad had sought to set up. The Magistrate rejected the alibi as being false and believed the story of the police constables and accordingly convicted Yar Muhammad.

(3.) The learned Sessions Judge in submitting this case to us has raised two points: (1) that by reason of the decision of. the Madras High Court in the case of Dorasamy Filial V/s. Emperor [1904] 27 Mad. 52, the learned Magistrate in the circumstances of the case was wrong in convicting Yar Muhammad at all. In the Madras case, the facts were these: A police constable at midnight entered upon the premises of a person "who was regarded by the police as a suspicious character, and knocked at his door to ascertain if he was there, whereupon he came out and abused and pushed the constable and lifted a stick as if he were about to hit the constable with it.