EMPEROR Vs. LAL MIA S/O SAFAR ALI

JUDGEMENT

(1.) This is a reference under Section 374, Criminal P.C., for confirmation of the sentence of death passed upon two persons, Lai Mia and Abdur Rashid, who were, tried for the murder of a man called Abdul Sattar Muktar. The case for the prosecution, briefly stated, was as follows : On the night of 17 September 1942, the two accused, who were probably accompanied by others, effect an entry into the hut in which Abdul Sattar Muktar was sleeping, and the intruders perpetrated an assault upon him with cutting weapons. Many of the injuries inflicted were fatal. The assailants ran away, and the injured man made sounds which attracted the attention of the neighbours. A number of persons, who were living in other huts of the deceased's bari, came to the spot, and to them he stated that Fazu and Ujir Ali Muktar had done for him. He then expired. Information of the occurrence was carried to the police station by one Dudu Mia, a relation of the deceased, and it was recorded at 7 o clock on the following morning. It is to be noted, that according to the prosecution, the deceased did not mention either Abdur Rashid or Lal Mia as his assailants. But, as just stated, the case for the prosecution would appear to be, that more than two men entered the hut when the deceased was attacked, and that the present two accused persons were among them.

(2.) The only real evidence against these two persons consists of the testimony of four witnesses, P.Ws. 4, 5, 9 and 10 who state, that they were proceeding to the house of the deceased upon hearing a noise when they saw and recognized the two accused persons running away, and that both of them were armed with cutting weapons. There is really no other evidence against the accused persons, and the testimony of these four witnesses has got to be carefully examined. Witness 4, Habib Ulla, is a servant of the deceased man. Witness 5, Abdul Kasem, is a school student. On the night of the occurrence, these two persons were sleeping in one of the huts of the deceased's bari, which is no more than 25 cubits from the hut in which the deceased was sleeping. The evidence of witness 4 is that he was aroused from slumber at about midnight by a sound which led him to think that cattle had broken, out of the cowshed. He roused P.W. 5, Abdul Kasem, who lighted a lamp. It was raining. There was another man in the hut called Abdul Malek, who was also roused by P.W. 4. The three of them proceeded to the cattle-shed, but finding the cattle safely tethered they were returning when they discovered that the door of the deceased Abdul Sattar's hut was open. They then heard groans. Just at this time they saw the two accused Lal Mia and Abdur Rashid running away. The two accused were at a distance of 10 cubits from them, but the witnesses were able to recognize them by the light of the lamp which the witnesses had with them. These three witnesses found the deceased lying outside the steps of his hut, and they carried him inside. He said before he died that he had been struck by Fazu and Ujir, and that he himself had injured three of his assailants with a spear. The two sisters of the deceased, who were living in adjoining hut, arrived on the scene. Several of the villagers also came. Dudu was sent to the police station to lay the first information. Before we proceed any further, we would point out that the two sisters of the deceased who are said to have come to the spot immediately after the crime, have not been examined by the prosecution, nor has the man Abdul Malek. Coming now to the first information report, we find that what the informant stated was this: When Abdul Sattar Muktar was being struck, he cried out and fell struggling outside on the eaves of that ghur. On hearing his cries, his sisters came running with the lamp in hand from the weat bhiti ghur towards the bedroom of Abdul Sattar Muktar and found Abdul Sattar lying on the eaves. When they shouted out, his servants, Habu Mia and Abdul Malek and Master Munshi who were in the outhouse of Abdul Sattar Muktar eame running towards the bari and they carried Abdul Sattar Muktar from the eaves into his bedroom and kept him lying on the floor with his head towards the south. On hearing a hue and cry in the house of Abdul Sattar Mia, I went to his house after 12 o clock in the night. My house stands on the eastern bank of the tank of Abdul Sattar Muktar's house. I found Abdul Sattar Muktar alive but he could not speak. On questioning his sisters, Afzal Bia and Madan Bia and his labourer Habu, I came to learn that the Muktar, after he had been brought inside the ghur had stated Ujir Ali Muktar has done away with me. There was none else in the Muktar's bedroom. His wife by the last marriage is on a trip to her father's house. Abdul Sattar Mia married the daughter of Uzir Ali Muktar also. She is in her father's house now. The Muktar Saheb does not bring her. And he has many litigations and enmity with his father-in-law, Ujir Ali Muktar.... Then on a hue and cry being raised, Osman Ali, Ana Mia, Lokeman, Fazu Bepari and many others of the village came to the house of Abdur Sattar Mia in that very night, saw the injuries on the body of Abdul Sattar Mia and found him dead.

(3.) There are two other witnesses who have testified that they recognised the two accused persona when they were running away. These are P.Ws. 9 and 10, Sk. Ahmad and Suleiman. According to them, at about 12-80 A.M. they were fishing in a tank to the east of the house of the deceased. Upon hearing a row in the direction of that house they went towards it. They saw the two accused, Abdur Rashid and Lal Mia, coming out of the deceased's bari armed with daos. These witnesses had a hurricane lantern with them, and recognised the accused as the latter passed within three or four cubits of them. P.W. 10, Suleiman and one other witness, P.W. 14, Sk. Ahmed, said that when they entered the deceased's hut he was still alive, and that he was saying that Fazu and Djir Ali had done away with him. Altogether four witnesses deposed that the dying man mentioned Fazu and Ujir Ali as his assailants. Yet, neither of these persons were sent up to stand their trial. Upon this state of the evidence the learned Judge charged the jury as follows: Unless you believe the evidence of P.Ws., Habib Ulla, Abdul Kasim, Shaikh Ahmad and Suleiman, who say that they saw the accused running away from the direction of the scene of the occurrence, it will not be safe to cannot them on the remaining evidence. Habib Ulla was admittedly a servant of the deceased for many years and Abdul Kasem was a tutor - working in the deceased's house.... There is nothing whatever to show any enmity between them and the accused persons. P.W. 9, Shaikh Ahmed and P.W. 10, Suleiman are distantly (if at all) related to the deceased whereas the accused Abdur Rashid is a close relative of the deceased a first cousin and would therefore be also a relative of the deceased's relatives. It is, therefore, for you to consider whether the relationship would, by itself, justify the rejection of the evidence of P.Ws. 9 and 10. Habib Ulla and Abdul Kasem say that they recognised the two accused by the light of a Kupibati they had with them, and Shaik Ahmad and Suleiman say that they recognised them when they ran past them face to face by the light of a hurricane lantern.