EMPEROR Vs. MATHURANATH DE

JUDGEMENT

(1.) This is a Reference under Section 307 of the Criminal P. C.. Three men Mathuranath De, a Sub-Inspector of Police in-charge of the Bijni Thana in the District of Goalpara Syed Habibar Rahaman, an Inspector of Police and Manmathanath Ghose, the Officiating Superintendent of Police of Goalpara were put on their trial on charges under Secs.120(B). 193, 201, 217, 218 and 506 of the Indian Penal Code. The common charge against all the three accused persons was under Section 120 (B) read with Secs.193 201, 217, 218 and 506 of the Indian Penal Code, Over and above this common charge the special charges against Mathuranath De were under Secs.193, 201, 217 and 506 The special charge against Syed Habibar Rahaman was under Section 217 of the Indian Penal Code and the special charges against M.N. Ghose were under Secs.217, 2l8 and 201 of the Indian Indian Penal Code. The trial was held with the aid of a Jury consisting of 5 Jurors. The Jury unanimously found all the three accused men not guilty of any of the charges. The learned Judge could not agree with this verdict and being clearly of opinion that the charges against the accused had been fully established referred the case to this Court under Section 307 of the Code of criminal Procedure.

(2.) Before I proceed to deal with the case and the evidence I should like to make one or two observations. The trial was a very protracted one. It began on the 27 July 1931 and ended on the 12 of October covering a period of nearly two months and a half. The record of the case naturally has been very big and voluminous. This, to my mind, was to a considerable extent due to the fact that each and every one of the bide issues involved in the case was fought out with a tenacity which was out of all proportions in my opinion.

(3.) The facts of the case for the prosecution were briefly these: On the 26 of July 1930, Mr. M.N. Ghose, accused No. 3 received a telegram from one Amir Kabiraj asking him to come immediately that night. The allegation was that by this telegram the Superintendent of Police was requested to come immediately to Debargaon, a remote village within Bijni Thana for the purpose as previously arranged and understood of securing dacoits or their gangs which were about to commit a dacoity. This telegram Mr. Ghose received at about 3 in the afternoon. He started the same date late in the afternoon taking with him accused No. 2 Syed Habibar Rahaman, one armed reserved Sub-Inspector, two Head Constables and twenty Constables each of the latter being armed with a rifle, 0 rounds of buckshot cartridges and 5 rounds of ball cartridges, without however taking any previous sanction of the Deputy Commissioner although the latter happened to be present at the headquarters on that date. The party reached Bongaigaon Railway Station which was the Railway Station for village Debargaon at a distance of about 10 miles at 11-40 p. m. The accused Manmathanath Ghose stopped at the Bongaigaon Bungalow while the rest of the party went to Chapaguri Inspection Bungalow which was 3 or 4 miles away from Bongaigaon on the way to Debargaon and halted there for the night. The party had to wait for the whole of the next day as the Informer did not turn up. At about 6 in the afternoon a First Information Report under Section 399 of the Indian Penal Code was drawn up by Mathura, accused No. 1. The informer, having arrived the party started at 8 30 in the evening headed by the Superintendent of Police Mr. Ghose accompanied by Inspector Habibar Rahaman. Mathura remained behind as he was not quite well. On the way the Superintendent of Police told his men what, their mission was and gave them instructions that they were to fire one round of buckshot in the air before beginning the raid in order to cow down the dacoits and that in the case of any armed resistance they were to fire at the legs of the dacoits. In due course the party arrived at Debargaon which is a small village with three or four collections of huts. One of these collections in which there was a jumma ghar belonged to one Sajaraddin, the man who was killed during the Police raid, Sajaraddin that night was sleeping in his north-facing hut with his wife Sovaran and a little child in her arms and they were sleeping on a mash an in that hut. Sajaraddin's old father Gaza Bura with a cousin of Sovanm named Masimuddin was in the east facing hut of the bari while Sovaran's brother Aeirnuddin was sleeping in the outer house. According to the prosecution Sajaraddin and Sovaran woke up from sleep bearing the gun firing and sat upon the machan. Sajaraddin challenged the men and told them if they wanted anything they might come in the next morning. Thereupon an opening was made in the northern grass wall of the hut and Sajaraddin was shot at through that opening. There was a flash of torch-light inside the hut at the time. Sajaraddin fell down dead on the machan. Sovaran escaped unhurt as she had come down from the machan before and at the time was at a distance of 3 or 4 cubits to the east thereof. Sovaran then called out and cried that her husband had been shot dead by the Police. Old Gaza Bura and Masimuddin came and found Sajaraddin lying dead on the machan with as many as 7 gunshot wounds on his body, three in the region of the chest, two in the abdominal region and two in the right thigh. Many of 8ajaraddin's neighbours were arrested by the Police that night and among them was Shah Mahmud and Samiruddin who were taken to Sajaraddin's bari that very night and they too heard Sovaran crying that her husband was shot dead by the Police. The Police party then left the place with the men whom they arrested without taking any action whatsoever regarding the death of Sajaraddin. After their return to the Chapaguri Bungalow accused Ghose ordered the Sub Inspector Mathura to come to Bocorbari, a village near Debargaon, to seize Alamats and arrest other dacoits and accused No. 2, the Inspector, was directed to supervise the investigation. According to the prosecution the real object of this deputation of the Sub-Inspector and the Inspector Police made by the Superintendent of Police was to hush up the truth about the shooting of Sajaraddin. Mathura visited Biragaon in the evening of the 28 and after arresting one Nabaraddin took him to Sajaraddin's bari and there he saw the dead body of Sajaraddin with, gun-shot wounds on it inside the southern bhita hut and he took into his custody some used-up cartridges found in the ban of Sajaraddin. According to the prosecution the Sub-Inspector was told by Sajaraddin's widows Sovaran and Sajaraddin's father Gaza Bura that Sajaraddin had been shot dead by the Police on, the previous night. But the Daroga without taking any action in the matter directed them to bury the dead body saying that the deceased might have got injuries while going out to commit dacoity somewhere or that he must have died on account of illness. This was in the evening between 5 and 7 of the 28 The next morning at about 9 Mathura saw the Superintendent of Police and, according to the prosecution, must have told him what be had seen at Debargaon on the previous day and what the real state of affairs was. At the time when Mathura met the Superintendent of Police Inspector Habibar Rahman also wag present there and although the three officers frequently met at Bongaigaon and other places during the period 28 to 31 of July and although the real facts of the Base as regards the death of Sajaraddin must have been known to them, no action appears to have been taken by any of them. In the meantime, although the Sub-Inspector Mathura, had directed Gaza Bum and Sovaran to bury the dead-body of Sajaraddin, there was no burial under the advice of the neighbours for fear of getting themselves into trouble-On the 30 Sovaran accompanied by her cousin Masimuddin and one Amiraddin went to Basugaon Railway Station and in the morning of the 31 sent a telegram from there to the Magistrate, Dhubri (Goalpara), stating therein that her husband had been shot by the Police on the night of the 27 and soliciting instructions as to whether the corpse should be disposed of or should be kept for inspection, Sovaran waited for sometime at Basugaon for a reply but no reply came she went back to Debargaon and on the next day, namely, the 1 of August buried the dead body of her husband Sajaraddin with the help of her father-in-law Gaza Bura and one Alimuddin. The telegram which. Sovaran sent from Basugaon on the 31 was received by the Senior Extra Assistant Commissioner Mr. Haque who was then in charge of She station during the absence of the Deputy Commissioner on tour. Mr. Haque asked for a full report without delay from the Superintendent of Police Mr. Ghose and also directed that a post mortem examination of the dead body should beheld with the least possible delay and thereafter the body was to be made over to the relations of the deceased for disposal, if wanted. This order was communicated t3 the Super intendent of Police and reached him when he was at Golukunge on his way back to Dhubri. Along with this order was sent a copy of the telegram sent by Sovaran. The Superintendent of Police returned to head-quarters in the evening of the same day, namely, the 21 and sent a note saying that the allegation of Bhooting was maliciously false and demanding a magisterial enquiry. Mr. Haque deputed Mr. Sultan, another Extra Assistant Commissioner to hold a local enquiry as soon as possible and report, Mr. Sultan ordered on the 1 of August the Sub-Inspector Mathura who was in the locality at the time to meet him at the Railway Station and take charge of the dead body immediately and disinter it if already interred, and to send it up for postmortem examination and he told the Daroga also that he himself would also hold an enquiry on the 2 August, 1930. Mathura received the order at 5 in the afternoon and after sending a requisition to the Station Master, Bongaigaon, for a wagon and sweepers he himself went to Debargaon and to the ten of Sajaraddin the same afternoon According to the prosecution, he took the relations of Sajaraddin to task for having sent the telegram to the Deputy Commissioner and while informing them that a Magistrate would come there the next day to enquire into the death of Sajaraddin he threatened them that unless they would state that Sajaraddin had died of illness they would be beaten, challenged to the prosecution Mathura then forced them to put their thumb impressions to a statement written by an Assistant Sub Inspector Jainaddin and signed by himself in which the inmates of the bari, Sovaran, Gaza Bura and the deceased mother Gedi Bibi purported to have said that Sajaraddin had died of fever and that Sovaran had sent the telegram to the Deputy Commissioner at the instiga-turn of the Dewanias Jabaruddin and his son-in-law Amiraddin. The Sub-Inspector Mathura got this document attested by some local people and on the basis of that statement he sent a report to Mr. Sultan suppressing, the real facts of the case with the evident object of prejudicing him in advance and of suggesting that an enquiry or disinterment of the dead body was unnecessary. On the 2nd August, Mr. Sultan reached Debargaon with the accused Habibar Rahaman and examined some witnesses who out of fear of the Police stated before him what they had been tutored by Mathura to say Mr. Sultan returned to Dhubri without disinterring the dead body. In the meantime the Superintendent of Police submitted a report to the Deputy Commissioner as to what had taken place on the night of the 27 and in this report which was dated the 3 of August 1930 as also-in another report of the same date which he submitted to the Special Super intendent of Police in charge of the Criminal Investigation Department, Assam, he maintained the position that Sajaraddin had died a natural death and that the allegation that he had been shot dead by the Police was maliciously false. On the 3 of August late in the evening Jabanuddin a man of the locality and father in law of Amiruddin who had accompanied Sovaran to the Basugaon Kilway Station on being informed that the Police wanted to arrest him saw the Deputy Commissioner and told him what the real facts of the case were. Thereupon the Deputy Commissioner ordered Mr. Sultan to go back to Debargaon again with an Assistant Surgeon for holding a local post mortem examination after disinterment of the dead body and to take fresh evidence for a full and complete report. The Deputy Commissioner also directed Mr. Haque to examine some of the dacoits who had been arrested on the 27 and who had been kept in jail custody to ascertain how, where and under what circumstances they had been arrested that night and also to take down any statement which they might choose to make of their own accord regarding the death of Sajaraddin. Mr. Sultan went to Debargaon accompanied by an Assistant Surgeon, had the grave opened and the dead body disinterred therefrom. The body had its left leg missing, its eyes were gone as also the hair of the head and the skin also partially gone. There was a lungi a considerable portion of which had been eaten up by maggots and there were two kanthas wrapped round. Some holes were found on the kanthas The relations of Sajaraddin identified the body to be that of Sajaraddin and the Assistant Surgeon on holding a post mortem examination found that there had been blackening of the skin where there were wounds on it. He found as many as 7 gun-shot wounds and on dissection he found 7 pellets embedded inside the gunshot wounds. According to the prosecution the pellets which were thus recovered were similar to those used in the buckshot cartridges supplied to the armed Police.