ASMATULLAH Vs. EMPEROR

JUDGEMENT

(1.) Asmatullah, Majid Ashghar, Karan Khan, Mumtaz, Kallu and Wahid were charged before the Sessions Judge of Bijnor under Secs.395, 325 and 149, Indian Penal Code. The learned Sessions Judge acquitted no less than 22 persons but convicted 7 under Section 325 read with Section 149. He sentenced the 7 accused found guilty to five weeks rigorous imprisonment each. These 7 accused appeal to this Court and we have before us two applications for revision by the party of the complainants ; one is against the setting aside of the order of acquittal of the 22 persons and the other is for the enhancement of the sentence of the 7 persons found guilty. I may say that as regards these applications in revision counsel for the applicants has very properly refused to press them and they are dismissed.

(2.) On 27 July 1932 there was a riot in the neighbourhood of village Mandaoli. The first information report was made by one Karim Baksh Teli at the nearest thana which was about 6 miles from the place of occurrence. That first information report is of vital importance in this case. Karim Baghsh relates that another Karim Baksh, a Jhojha of Mandaoli, had taken a lease of certain jungle land. That the neighbouring villagers used to graze their cattle on this jungle land; that Karim Baksh not unnaturally wished to collect fees for the grazing of this cattle; that the villagers strongly objected to this; with the result that on 24 July 1932 the thekedar and some of his adherents drove 106 cattle from the jungle to a cattle pound, that on the 27 July at a time about four gharis before sunset, four of the complainants party were engaged in cutting grass in a sugar-cane field; that a small party of the accused moved by ill-feeling against the complainants party because of the cattle, attacked these four persons and drove them away. That thereafter these four persons collected others and returned; that a large party of the accused, numbering 100 to 150 persons, had been collected and had proceeded to chase the complainants party to village Mandaoli, and there in a lane had throughly beaten them. This was the whole case as presented by the first information report. It is to be noted that it was made some six hours after the occurrence took place. The complainant had ample time to consult his friends in the village and obtain information. The case as produced however, by the prosecution both in the Magistrate's Court and in the Sessions Court was very different. In the first place, the locus in quo was changed. No longer does the sugar field figure in the story. The place where the riot commenced was now a nim-tree near Mandaoli. This change the Judge finds was made because the defence story, as set up in a statement made by one of the accused in the first Court, was in agreement with the first information report, namely, that the beating had commenced in the sugar field belonging to the accused. This fact would justify a defence that the accused were within their rights in beating trespassers upon their land. Therefore the scene of the occurrence was changed by the prosecution. Secondly, the time was altered. In the first information report the time was clear, namely, four gharis before sunset. In both the lower Courts the time was changed to after sunset. It is clear that this change contradicts vitally the first information report. No one goes to cut grass in a field after sunset.

(3.) The alteration in the time was necessary for a very good reason; various material changes were made in the prosecution case. For instance, there was a charge made of dacoity. A number of the prosecution witnesses also gave evidence that several mosques in the village had been desecrated. Further, a large party of Jats, who were not mentioned in the first information report, were charged in the lower Courts. It is perfectly obvious that if the time as given in the first information report was adhered to, namely, four gharis before sunset, and the in-formant had six hours to consider his report before he made it, there could be no answer to the objection that all these other charges were not included in the first information report. If however the time was changed to after sunset, the informant might possibly have run to the police station to make his report without consulting other people in the village, and that he might have reported only what he himself had seen. The learned Judge in an extremely careful and able judgment as to the facts comes to the following conclusion : He says: I am decidedly of the opinion that this alleged dacoity never took place and that it is nothing else but a fiction and creation of the subsequently developed imagination of the prosecution witnesses and their advisers.