SALI SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) The appellants were charged with two others of murder. They were tried by the Additional Sessions Judge at Mymensingh and a jury. By a majority of six to three the jury-returned a verdict of guilty against the appellants and of not guilty against the two other accused. The learned Judge charged the jury in such a way as makes it obvious that his own inclination was in favour of the present appellants. Nevertheless he said in his order that though he would have preferred a verdict of not guilty against all the accused he did not think it proper to disagree-wholly from them and refer the case to the High Court. He went on to say that the learned Public Prosecutor said that as there was some provocation the lesser sentence of transportation might be imposed, though the provocation was, not sufficient to bring the case under Section 304, I. P.C., and this suggestion the learned Judge adopted. I may say at the outset that I can find no evidence whatever of any provocation sufficient to come within the legal meaning of provocation. It is doubtful therefore whether the learned Judge was justified upon facts, assuming that he accepted the verdict of the jury, in reducing the sentence to one of transportation. If he had sentenced these two appellants to death the sentence would have come before the High Court, which could have inquired into the facts.

(2.) As has been pointed out in cases formerly dealt with in this Court, under the provisions of the Code the prisoner sometimes is in a worse position when sentenced to transportation for life than if be had been sentenced to death. The case for the prosecution is so bare in its facts as to lead at once to some suspicion of its truth. The deceased Abbas Haji was returning home from an adjoining Hat just before sunset. He was accompanied by his son Abdul Haye, (a boy of about 11), his brother Wahed Ali and two other persons Abdul and Aha-dulla. They were not walking together because the path was upon an ail which only allowed room for one person to pass at a time. But the other three were close behind Abbas Haji. His son was throe to four cubits behind, Wahed Ali was about ten cubits behind and Ahadulla was 30 to 40 cubits behind. The sun had not reached the horizon and it was light, and at this moment, when Abbas Haji had reached a place where the path is crossed by another path, Sali Sheikh stepped out from a jute field and without any preliminary either of word or otherwise, plunged a spear into the abdomen of Abbas Haji. Then he tried to pull the spear out again, but failed to do so. Then he turned round and said to Aga Sheikh " What you are doing ?" moaning Why don t you come and help?" and Aga Sheikh then came up and dealt a heavy blow on Abbas Haji's head with a lathi. Then the two other accused appeared in the jute field with lathis and stood there for a time but did nothing. Then the story goes that Abbas's son and relatives approached and the four accused ran away. While these things were going on, which must have taken one or two minutes at least, no word was spoken except the remark made by Sali to Aga Sheikh. Nobody attempted to do anything to protect Abbas or to ward off the blows or to secure any one of the four accused or to make any attempt to secure their arrest. This having happened, Abbas was taken along a little way to the bank of a tank whore he sat down, and a hue and cry having been raised a number of persons came up.

(3.) Although these cross-roads were only paths the evidence shows that they were frequently used and that persons coming back from the Hat used them and there were dwellings quite close to the tank. There were several huts a little further away from which some of the neighbours came. From this moment before sunset up till midnight, it is alleged that Abbas sat upon the side of the tank, while a considerable number of people came up and talked to him and he described the attack and named the four accused as the ones who had attacked him. Further he sent his son for pen and paper and got one of the neighbours named Arfan to write down his dying declaration. Also a student was sent for who performed the religious ceremony of Towba before Abbas died. Wahed Ali waited until he died, then he went to the Thana and gave the first information report. He had been with the deceased the whole time from when he was attacked until his death and so he ought to have known the facts better than anybody else. His statement was generally as I have already related. But he said in it that Abbas mentioned the names of the accused with great difficulty, and. died a little after this.