HAFIJUDDI Vs. EMPEROR

JUDGEMENT

(1.) The prisoners Hafijuddi (Hafijuddin) alias Bengu, Asgar Ali, Har Chandra De (Chowkidar) alias Hari Chandra De alias Hari Chowkidar, Kalai Prodhan, Syed Ali (Haji), Kadam Ali Sarkar Maharam Ali Talukdar alias Mohor Ali, Abdul, Jahar Ali and Kali Prosonna De were tried before the Sessions Judge of Tippera and a Jury, as concerned in the murder of one Hari Dutta alias Proka Chandra Dutta, on 12 March 1933. The accused Hafijuddi, Maharam Ali, and Kalai Prodhan were charged substantively with murder, Under Section 302, I.P.C.; all the accused were charged Under Section 149 read with Section 302, I.P.C., and they were further charged Under Section 120-B read with Section 302, I.P.C. In consonance with the majority verdict of the jury, the learned Sessions Judge convicted Hafijuddi, Asgar Ali, Har Chandra De Chowkidar and Kalai Prodhan Under Sub-section 120/302, 147 and 149/302, and under each of the Sub- section 120-B/302 and 149/302, I.P.C., and sentenced them to death. The prisoners Kadam Ali, Abdul, Jahar Ali, Kali Prosonno De and Maharam Ali, were in accordance with the verdict of the majority of the jurors, convicted Under Sub-section 120-B/302, I.P.C., and they were sentenced by the Judge to transportation for life. In the case of Syed Ali the majority verdict of the jury that he was guilty Under Sub-section 147, 149/302, I.P.C., was accepted, and he was sentenced by the Judge to death. The case is before us on reference by the Sessions Judge Under Section 374, Criminal P.C., and on appeal by the prisoners. The Judge, it appears, has taken particular care in trying to determine the nature of the majority verdict of the jury, and has tried to follow the line indicated by the verdict of the jury in passing sentences on the accused persons. Those found by the Judge to have been present at the occurrence, were sentenced to death; those whose presence was not established in evidence, but who consented tacitly to a conspiracy to murder, were sentenced to transportation for life.

(2.) The learned Judge's charge to the jury appears to be exhaustive, and all the material points arising for consideration in the case were analysed and the evidence bearing upon them was carefully summarised. The motive for the crime in which so many persons were concerned had to be considered and the evidence of conspiracy to murder had to be carefully shifted. The reason why no names were mentioned in the First Information Report of the occurrence had to be discovered, and in that connexion the indifference shown by the President Panchayet of the Union within which the place of occurrence was situate came in for consideration. The evidence as to conspiracy; the assembling of the accused persons on different occasions before the occurrence; the occurrence itself and participation of the prisoners in the same; their flight after the occurrence, had to be separately considered. So far as the oral evidence goes there was the evidence of the approver Syed Ali; there was the evidence of eyewitnesses to the occurrence, of witnesses who saw certain of the accused running from the scene of occurrence. On the question of motive, there is a body of documentary evidence that the deceased Hari Dutta had been on litigating terms with several of the accused persons and that he had almost invariably been successful. Evidence was given to establish that there was a baithak some ten days or so before the occurrence at Kalai's house in which it was decided that Hari Dutta was to be done away with, and evidence was placed before the Court also that the accused persons assembled at Kadam Ali's house, on the evening of the occurrence. The confession of the approver, his deposition before the committing Magistrate, and his evidence before the Court of Session, was taken to be the basis of the case for the prosecution, and evidence was led to prove the presence of the different accused persons at the conspiracy to murder, and at the occurrence.

(3.) The case of the individual accused received the consideration of the Judge and the jury, and the materials on the record touching each of them had to be kept in view, regard being had to the nature of the verdict of the jury, and to the Judge's own conclusions arrived at before recording an order of conviction and before passing sentences. The questions arising for consideration generally in the case, which relate to the case of all the accused persons, have to be determined on the materials on the record, before the case of individual accused can be taken into consideration. The motive for the crime has, in our judgment, been established; and it may as well be mentioned that what may be a sufficient motive for an individual or a group of individuals may or may not be sufficient motive for others, and it is therefore necessary to give importance to the occurrence itself, to the participation of the accused persons in the same, and see if they were responsible for the crime, although it may not be possible definitely to hold that the motive ascribed was not sufficient or commensurate with the nature of the crime. In the case before us, the evidence discloses facts and circumstances from which the presence of an intention to do away with the deceased Hari Dutta could be guessed.