EMPEROR Vs. SHAIK HASAN ABDUL KARIM (NO2)

JUDGEMENT

(1.) The two accused in this case, Shaik Hassan Abdul Karim and Akbarkhan Attamahomed, were tried by Mr. Justice Blagden and a special jury for the murder of a police constable named Nasiruddin on the night of December 25, 1942. The jury unanimously found both the accused guilty and the learned Judge sentenced both of them to death. The matter has come up before us on a certificate given by the learned Advocate General under Clause 26 of the Letters Patent that there are certain misdirections or errors in the charge delivered by the learned Judge to the jury which in his opinion should be further considered by this Court. The following four points have been mentioned by the learned Advocate General in his certificate : (1) That the learned Judge did not point out to the jury with sufficient accuracy and detail the distinction between murder and culpable homicide not amounting to murder, did not read the relevant sections of the Indian Penal Code, and in explaining the law did not use the words of the sections of the Indian Penal Code. (2) That the learned Judge at no time in his summing-up in regard to the charge of murder adverted to exception 4 in Section 300 of the Indian Penal Code, and that it was incumbent on the learned Judge to put before the jury a case for the accused arising on the evidence, even though such case was not raised or suggested by or on behalf of the accused, and that the learned Judge omitted to draw the attention of the jury to a matter, a consideration of which might lead them to a verdict of culpable homicide not amounting to murder instead of murder ; to wit : whether or not the culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, (3) That having regard to the evidence on behalf of the prosecution there was no evidence of any agreement between the two accused to kill the deceased and that the learned Judge ought not in giving the charge to the jury to have used the words " obviously, gentlemen, is it not part and parcel of the same plan that of stopping the dead man's mouth by killing him and scaring the crowd away and preventing them from coming forward ; so that if there is legal trouble afterwards there will be as few witnesses for the prosecution as possible ? If the object is not to stop the dead man's mouth why have recourse to a deadly weapon, when a less dangerous thing has already achieved its object and won the fight of accused No. 1 ? For example, if a gang of people like those who murdered Julius Caesar all agreed to stab the same man and did stab him it does not matter in the least who actually struck the fatal blow," (4) That on the question of identification of accused No. 2 the learned Judge did not sufficiently place before the jury the facts in favour of the accused, viz. that the accused was arrested and identified eight months after the event and that the incident took place at a time when blackout restrictions were in force and that there were several discrepancies in the evidence of the witnesses in the statements made by them before the Coroner and before the Committing Magistrate and in the High Court.

(2.) Before proceeding to deal with the paints on which the certificate has been granted, it is necessary to set out the facts of the case and the evidence which was led by the prosecution. On the night of December 24, 1942, the deceased police constable Nasruddin Badruddin, No. 2744/F of the Mahim Police Station, was present at the Ma-him fair. One Haji Abdulla Kadir Siddik was distributing alms to some fakirs. One of the fakirs was dissatisfied with what was given to him and started abusing Haji Abdulla who had refused to give him anything more. The! two accused came along and accused No. 1 asked Haji Abdulla not to beat the fakirs. Haji Abdulla said that he had not beaten any one. Accused No. 1 thereupon took out two one-rupee notes and offered them to Haji Abdulla and asked him to distribute the money to the fakirs. A crowd had collected at the place at the time. Haji Abdulla said that if the accused wanted to distribute money he should do so himself. At this stage the deceased police constable, who was not in uniform, asked the members of the crowd, including Haji Abdulla and the accused to move on, and Haji Abdulla moved away. Accused No. 1, however, asked the constable who he was and gave him a push and told him to go away. Upon this the constable lifted up his shirt and showed accused No. 1 his policeman's belt which he was wearing below the shirt. Accused No. 1 thereupon gave the constable a push. The constable asked him to take care, whereupon accused No. 1 slapped him. The constable then caught accused No. 1 by the collar of his shirt. Accused No. 2, who was near accused No. 1, asked the constable to let accused No. 1 go. The constable refused to do so. Thereupon accused No. 2 gave a blow to the constable on the abdomen and accused No. 1 gave him a blow on the face. The constable then loosened the belt round his waist and either struck or tried to strike accused No. 1 with the leather end of the belt. Accused No. 1 caught hold of the belt with both hands. Accused No. 2 asked accused No. 1 to let go the belt, and he also asked the constable to let go the shirt of accused No. 1, but neither would release his hold. Accused No. 2 then shouted to accused No. 1 to stab the constable. The word used in the charge by the learned Judge is "thrust in". Accused No. 1 replied that he had no Gha or instrument to stab with. Accused No. 2 then butted at the constable with his head. The constable released his hold on accused No. 1's shirt and fell on the bench of a tea shop close by. Accused No. 1 then caught hold of the belt, and as the constable tried to get up, he started striking him with the buckle end of the belt. Accused No. 2 was at this time warning the people in the crowd not to interfere. The deceased fell back a little in his attempt to1 ward off the blows. Accused No. 2 then gave him a blow with his fist on the right side of his neck. Accused No. 1 continued to strike the constable with the belt with the result that the constable again fell down. He got up again. Accused No. 1 continued to give him more blows with the belt until the belt broke. The deceased fell down a third time, accused No. 1 continuing to strike him with the belt. At this stage accused No. 1 called out to accused No. 2 "Why are you looking at his face, stab him ? " Accused No. 2 ran towards the shop and got a knife from a man who was there and returned. Accused No. 1 again called out to him " Why are you looking at his face, stab him ? " The deceased who had fallen down sat up again. Accused No. 1 struck him again with the belt and accused No. 2 stabbed him with the knife on his left buttock. After this accused No. 1 gave some more blows to the constable with the belt. At this stage two or three policemen who had been called by somebody in the crowd came up. They tried to catch the accused but both of them escaped. The injured constable was removed to the hospital at about 1-20 that night. He died within a few hours at about 5-40 a.m. The medical evidence shows that he had several abrasions on the left temple and cheek, near the right eye, a lacerated wound near the left eye, and a stab wound 1 1/2" long 1" broad and 5" deep on the left buttock which punctured the left internal illiac artery. According to the medical evidence the wound was such that if not treated it must cause death. Accused No. 1 was arrested three days later on December 28. The second accused was not arrested till nearly eight months later on August 12, 1943. After the arrest of each of the accused the police held an identification parade at which the witnesses who were subsequently examined at the trial identified both the accused.

(3.) The prosecution examined Haji Abdulla Siddik whose dispute with the fakirs was the starting point of the trouble, and four other witnesses, Mahomed Sujauddin, a hawker, Yasinkhan who claimed to be an estate broker, Noor Mahomed the keeper of a boarding house near the place where the offence occurred, and one Mastan Imamuddin a servant who worked at the Durgah near the place where the offence occurred. These four witnesses all claimed to have been present throughout the offence. Both the accused said that they knew nothing about the case and that they were innocent.