MAHOMMED YUNUS Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Mahommed Yunus, has been convicted of abetment of the offence of culpable homicide not amounting to murder, and of abetment of voluntarily causing grievous hurt with a dangerous weapon punishable under section; 324 and 326 read with Section 109, Indian Penal Code. He has been sentenced to five years rigorous imprisonment on both counts, the sentences running concurrently.

(2.) The appellant, who was an Assistant Sub-Inspector of Police, was jointly tried with two Constables, Ahmad Ali and Kadamali, who were charged with offences punishable under Secs.304 and 326 read with sec ion 34, Indian Penal Code. Ahmadali was convicted on both charges and concurrent sentences of five years rigorous imprisonment for each offence were passed". We are informed that he has since died. Kadamali was acquitted. 2. The occurrence which led to this trial took place at the Mirzapur Hat on Wednesday, the 8 June 1921. This hat is the "property of the Bhawal Estate which is under the management of the Court of Wards. Sometime before the occurrence, a Sadhu claimed to be the second Kumar, one of the owners of the estate who was said to be dead. A large number of tenants of the estate believed the claims of the Sadhu to be genuine." There was great excitement about this and consequent difficulty about the management of the estate. The Board of Revenue held an enquiry, and authorised the Collector of Dacca to publish a notice (Exhibit A) to the effect that tie Board had got conclusive proof that the corpse of the second Kumar of Bhawal had been burnt twelve years previously in the town of Darjeeling and that the Sadhu who was making himself known to be the second Kumar was an imposter and anybody paying any rent or subscription to him would do so at his own risk. On the day of occurrence this notice was being published in tie Mirzapur Hat by beat of drum by servants of the local kachari of the estate. Then there was the following sequence of events which, as stated by the learned Sessions Judge in his charge to the Jury, are more or less admitted by both sides. The people assembled at the hat objected to the proclamation of the notice, and there was a fracas between them and the kachari servants. The accused had come to Mirzapur in a Police patrol boat end there was an alteration between them and the crowd. Jamirudeen (P.W. No. 1) who is a past ijaradar of the hat are also a Panchayet interceded, and to prevent matters getting worse, had the two Constables removed to tie kachari under the protects in of Mohit Narayan (P.W. No. 2) a, or met servant of the kachari. A large number of persons followed them up to the steps of the kachari. Then the appellant, the Assistant Sub-Inspector Mohamad Unus, arrived. Shortly after his arrival, under his orders, two shots were fired from the guns held by the Constables. Ahmadali admitted having fired his gun. Kadamali admitted that the gun was in his hand but set up the defence that the trigger was pulled by the appellant. The Jury acquitted Kadamali on the ground that they doubted whether he fired the gun. Inconsequence of the firing of these two guns one Jhumerali received a mortal wound of which he died a few hours later. Srinath (P.W. No. 4) had his finger blown off; the wrist of Ktemu (P.W. No. 5) was lacerated, end Ram Satan (P. W. No. 6) pad his lower jaw and cheek lacerated and his eye injured.

(3.) The main issue in the case is whether the accused were justified in firing in exercise of the right of private defence. The principal contention in this appeal is that the verdict of the Jury should be set aside on the ground of misdirection by the learned Sessions Judge on this main issue. Before discussing this point it will be convenient to first deal with a preliminary objection that the trial was without jurisdiction by reason of the provisions of Section 132, Criminal Procedure Code. This section provides that no prosecution against any person for any act purporting to be done under Chapter IX of the Code shall be instituted in any Criminal Court except with the sanction of the Governor-General-in-Council. It is contended that the act of the appellant in contacting the Constable to fire was justified by the provisions of Section 128, or at any rate. the act purported to be done under that section, so as to render the provisions of Section 132 quoted above applicable. But this contention bails because the power to disperse an unlawful assembly by force is not given by the Code to any Police officer below the rank of an officer in charge of a Police Station. An examination of the Police Manual shows that the powers of an officer in charge of a control boat are no higher than those of an officer in charge of an out pest from such an officer the power to investigate constable cases has been withheld and this is a power which he would necessarily have under Section 156, Criminal Procedure Code if he were in charge of a Police Station. As an officer in charge of control boat the appellant had no power to act under Chapter IX of the Code of Criminal Procedure and he cannot even have purported to act under that section.