KARAMALI SIKDAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against convictions and sentences Under Secs.148, 147 and 325/34, Indian Penal Code. Twelve persons were placed on their trial before the Additional Sessions Judge of Dacca and a common jury of five. The charges against them framed by the Sessions Court, were that they were members of an unlawful assembly the common object of which was severely to assault Khan Sahib Samsuddin Ahmed, that they were armed with deadly weapons and thereby committed an offence punishable Under Section 148, Indian Penal Code; secondly, that they attempted to murder Khan Sahib Samsuddin Ahmed and thereby committed an offence punishable Under Section 307, Indian Penal Code; thirdly, that they in furtherance of the common intention of all namely severely to assault Khan Sahib Samsuddin Ahmed voluntarily caused grievous hurt to him and thereby committed an offence punishable Under Section 326/34, penal Code. The charge framed by the Magistrate was dropped. The jury were unanimous in their verdict. They found five of the accused persons Kushai, Abdus Salam, Nawabali, Ledu and Falania not guilty of any offence. They found Karamali Sikdar, Boul Sikdar alias Abdul Hai and Kalu guilty of rioting being armed with deadly weapons and guilty of causing grievous hurt Under Section 325/34, Indian Penal Code. They found four others namely Imanali Sikdar, Rokman Ali, Yakub and Budhai guilty of rioting Under Section 147, Indian Penal Code, and guilty of voluntarily causing grievous hurt Under Section 325/34, Indian Penal Code. The learned Additional Sessions Judge accepted the unanimous verdict of the jury and acquitted Nawabali, Faloo, Kushai, Salam and Ledu Sheik. He convicted Karamali Sikdar, Boul Sikdar, Kalu and sentenced them each Under Section 325/34, Indian Penal Code, to undergo rigorous imprisonment for three and a half years and Under Section 148, Indian Penal Code, to undergo rigorous imprisonment for two arid a half years. He convicted Imanali Sikdar, Rokman Sikdar, Yakub and Budhai of voluntarily causing grievous hurt and sentenced them each Under Section 325/34, Indian Penal Code, to undergo rigorous imprisonment for three and a half years and he convicted them also of rioting and sentenced them each Under Section 147, Indian Penal Code, to undergo rigorous imprisonment for two years, the sentences in the case of all the seven accused persons were to run concurrently. The seven accused persons have appealed against those convictions and sentences.

(2.) The case for the prosecution briefly is that Khan Sahib Samsuddin Ahmed had been the President of Hazratpur Union Board for 10 or 12 years. Towards the end of 1941 new elections to the Union Board and new election of the President of the Union Board became due. Khan Sahib Samsuddin Ahmed stood as a candidate in all the three wards of the Union Board and he was opposed in all the three wards. There was brisk canvassing and feelings ran high. The local Circle Officer anticipated trouble at the time of the elections and asked that armed police should be present when the elections were held. The election had to be postponed and canvassing continued up to the end of 1941 and during the opening weeks of 1942. In December 1941 Khan Sahib Samsuddin Ahmed complained to the police that some of his opponents were threatening the people in the locality to prevent them voting for and supporting him. On 9 February 1942 Khan Sahib Samsuddin Ahmed accompanied by a few followers went out canvassing. In the afternoon of that day he went with his followers towards Talipur village partly for the purpose of canvassing and partly for supervising an enclosure which was to be erected there. After making certain enquiries at Talipur he proceeded thence towards village Niltek. As he was on his way he heard a cry that people were approaching to assault him. He turned back and found a group of people, 30 or 40 in number, approaching to attack them. Among the 30 or 40 people approaching were the seven appellants. Imanali appellant struck the Khan Sahib on the back with a lathi. Karamali Sikdar appellant struck Khan Sahib on the right leg with a lathi whereupon the Khan Sahib fell on the ground. The other appellants then struck him in various parts of the body. Two of his companions succeeded in warding off some of the blows, and one of these companions stood over the Khan Sahib after the latter fell to the ground and warded off blows with the lathi which he was carrying. At this stage Karamali Sikdar appellant gave orders to his son Boul appellant whereupon Boul struck the Khan Sahib on the right side of the neck with a big dagger. The Khan Sahib grasped that dagger in his two hands and in so doing received injuries on his thumb and finger. Korban Dhali and Forman Dhali, Khan Sahib's followers pushed Boul Sikdar back. At this stage Karamali took a chen dao from the hands of Kalu appellant and struck Khan Sahib a blow therewith on the right side of the head. Thereafter the Khan Sahib and his party began to run away. As people working in the fields approached, the accused also fled to the west. Khan Sahib Samsuddin Ahmed was taken home and was ultimately attended by a doctor at his village home and subsequently sent to the Mitford Hospital for treatment and medical examination. (After referring to the medical evidence and to the evidence of alibi of certain accused the judgment proceeded.) None of the other accused offered any evidence to show that they could not have been present at the place of occurrence. These other accused, therefore, relied on the defects of the prosecution case and argued that the evidence to establish their presence was unsatisfactory, unreliable and unconvincing. Before drawing our attention to any alleged misdirections in the charge to the jury Mr. Carden Noad for the appellants drew our attention to the nature of the evidence against the accused Karamali Sikdar, Faloo alias Falania and Ledu Sheik and again to the nature of the evidence against Abdus Salam and Budhai. Mr. Carden Noad argued that the evidence against Karamali Sikdar, Faloo and Ledu Sheik was almost identically the same. The same witnesses implicated these three accused persons. The same witnesses described the occurrence and ascribed the same part to these three accused. Moreover, the same defence witnesses deposed to the same alibi for these three accused persons. D.Ws. 1 to 5 all asserted hat these three accused persons were at Kaladia H. E. School throughout the day on 9 February 1942. Mr. Carden Noad argued that the evidence for and against these three accused persons is indistinguishable; yet the jury have found the accused Karamali Sikdar guilty and have found the accused Faloo alias Falania and Ledu Sheik not guilty. Similarly with regard to Abdus Salam and Budhai one witness only deposed against these two accused persons. His evidence against them in the same. It is impossible from his evidence to distinguish between the two accused persons. No defence witness was examined on behalf of either of these two accused persons. Each of them asserted that he was elsewhere at thetime of the occurrence. Neither of them made any attempt to prove that his assertion was true. In respect of these two appellants Mr. Carden Noad has contended that the evidence is indistinguishable; yet the jury have found Salam not guilty and nave found Budhai guilty Under Section 147 and Under Rule 325/34, Indian Penal Code. From these facts Mr. Noad has argued that the jury in fact made a confusion in their verdict and that the verdict as given by them does not represent their real opinion. Mr. Carden Noad went further and suggested that this view was clearly enertained by the learned Additional Sessions Judge himself. To support this contention Mr. Carden Noad view our attention to the last question put to the jury when their verdict was obtained. The question is: Have you made any confusion as to names?" The answer was "No".

(3.) It has been argued before us and strenuously argued that in view of the facts stated above the jury made a confusion as to the names and that the verdict given by them does not represent their true verdict. We are enable to accept this contention. The mere fact that in the written record the evidence against two persons seems to be the same does not mean that the impression created by the witnesses on the mind of the jury necessarily the same with respect to the two accused persons. The manner in which the witnesses deposed as they implicated one or the other may have varied. the opinion formed by the jury from the appearance of the accused may have had some effect. It seems to as impossible to argue that because the written record seems to be the same with regard to two different accused, the jury in distinguishing between the cases of those two accused must necessarily have been in a state of mental confusion. In any case so far as the present accused is concerned, this argument is scarcely applicable at all events to the case of Karamali Sikdar. There was one important piece of evidence against Karamali Sikdar which was not present in the case of Faloo alias Falania and Ledu Sheikh. It was the case or the prosecution that Khan Sahib Samsuddin Ahmed lost consciousness shortly after the occurrence and did not regain his senses until about. 9 P. M. When he regained his senses the Circle Officer was present and questioned him. The Circle Officer deposed that Khan Sahib Samsuddin Ahmed then described the occurrence and named 8 or 10 of his assailants. The Circle Officer was not able to remember the names of any of these assailants except Karamali Sikdar. The Circle Officer was; definite that Samsuddin Ahmed immediately after recovering consciousness named Karamali Sikdar as one of his assailants. In view of this evidence it is impossible to argue that the jury had no reason for distinguishing between the cases of Karamali Sikdar and the cases of Faloo alias Falania and Ledu Sheik.