YASHPAL Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Allahabad, in a case in which the jury by a majority of four to one acquitted one Yashpal of a charge under Section 19(f), Arms Act, and the learned Sessions Judge has recommended that the accused should be convicted as, in his opinion, the verdict of the majority of the jury is perverse. There is also before us an appeal by Yashpal of a conviction by the learned Sessions Judge under Section 307, Indian Penal Code, and a sentence of seven years rigorous imprisonment. The two proceedings relate to the same transaction and there was one trial in which the jury were assessors in the charge under Section 307, Indian Penal Code. The evidence in the case consists mainly of the statement of Mr. Pilditch, the Superintendent of Police in the C.I.D. Branch stationed at Allahabad. He states that very early, on the morning of 23 January 1932, he received information that Yashpal who was a proclaimed offender wanted in connection with various offences was to be found at house No. 26, Hepwett Road, in Allahabad City. Mr. Pilditch went to the Superintendent of Police, at 2 a.m., and made arrangements for a raid at 6 a. m. Accordingly, at that hour, a party of police arrived at the house in question and, as previously arranged, certain police were posted outside on both sides of the house and Mr. Smith, Assistant Superintendent of Police, with a party of police, and Mr. Pilditch, with another party of police, proceeded upstairs to the second storey. There, at the top of the stairs, Mr. Smith and his party turned towards the right to enter the open space of the roof and Mr. Pilditch and his party knocked at the door to search the rooms of that storey.

(2.) After a quarter of a minute the door was opened by a European woman, who was known as Mrs. Jafar Ali alias Savitri Devi. Mr. Pilditch noticed three beds in that storey and asked her whose beds they were and she replied that they were alL her beds. He did not believe the story and moved rapidly on through the rooms. After passing through several rooms he came to the end of the rooms where there was an open door leading on to an open space on the roof. Beyond this open space there was a partition wall of corrugated iron sheets slightly over 6 feet high and he observed a white figure endeavouring to climb this partition. At the time it was dark and he could not see distinctly. He challenged the white figure and moved towards it. As he moved forward the figure fired a shot. He returned the fire and the figure disappeared on the other side of the corrugated iron partition. Mr. Pilditch went up to the partition and found that he could not look over it. He then got on to the top of a parapet beside the partistion. He saw open roof on the other side of the partition bounded a few yards away by a wall which had a door in it and at the side there was a sheer drop of thirty feet into the street. He saw the figure in the space of the open roof and the figure fired at him a second time. He fired twice at the figure taking cover behind the corner of a fence. He then found on peeping over that the figure had come back to the fence apparently to take cover under it and from the short distance of less than two yards the figure fired a third shot at him but missed him. He replied with two more shots. A revolver was then thrown over the fence and two hands were put up and a voice cried "I am unarmed." Mr. Pilditch got down from the parapet and stood with his pistol ready and told the man to come over the fence to his side. He came over the fence and the Deputy Superintendent who had come up by this time secured the man. The man was the accused, Yashpal, and the revolver produced in Court was the revolver which was thrown over the fence. Mr. Pilditch examined the revolver at the time and found that it had three loaded cartridges and three cartridges which had been fired. The man was then taken to the police station and the usual report was made. A map has been produced of the place. The accused was asked at his trial what he wished to say and he replied: In the present situation I do not wish to say anything. I have already said that I am not guilty. I do not wish to produce any defence.

(3.) Various arguments were made in this case in the Court below as to the possibility of the existence of a third person and as to whether the shots might not have been fired by the accused before the Court. The evidence of Mr. Pilditch clearly shows that there was no third person present. It is true that there were three beds and this indicates as Mr. Pilditch says that there was a third man residing in that place but he was absent at the time. It is clearly shown by the evidence of Mr. Pilditch that the man who was in the open part of the roof and who was firing at Mr. Pilditch was the accused as Mr. Pilditch had said that this man was under practically continuous observation all the time. There is also no denial by the accused that he was the man who fired at Mr. Pilditch. No argument has been made on this point by the defence in this Court.