ASHIQ ALI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Ashiq Ali, Sadiq Ali and Munshi from their conviction and sentences of transportation for life under Section 302, I.P.C., passed by the learned Sessions Judge of Meerut. The appellants and Imdad Ali were prosecuted for the murder of Umrao on 10 May 1935 at 6 p. m. in village Dibarsi, district Meerut. Ashiq Ali and Sadiq Ali are the sons of Imdad. Munshi is a cousin of Imdad. The accused and the deceased all belong to village Dibarsi. The story for the prosecution, briefly stated, is that Umrao and his son Barkat returned with the marriage party of the latter to their village on 10 May 1935, and that at about 6 p. m. when Umrao came out of his house into a lane, he was assaulted by all the four accused named above. The injuries received by Umrao resulted in his death on 27 May 1935. The occurrence is deposed to by Tulwa, Munshi and Imam Khan, who profess to be eye-witnesses. The important question in the case is whether the evidence given by these witnesses can be implicitly relied upon in proof of the guilt of the appellants. We shall consider this question in detail subsequently. No report of the occurrence was made by Umrao or any of his relatives till 12 May 1935. The report was made by Umrao himself at 8 a. m. The motive for the assault, described by him, was that Umrao had given evidence against the four accused in two cases. The suggestion was that, through enmity, Imdad and others assaulted Umrao, as alleged by him. The report purports to be one in respect of an offence under Section 323, I.P.C., and is very meagre. No particulars of the cases in which Umrao alleged to have given evidence against the accused were furnished. "When he (Umrao) gave evidence is also not mentioned. Umrao was sent for medical examination the same day, and was found to have received five injuries, one of which (fracture of the frontal bone) was described to be grievous and dangerous. The remaining four were found to be simple. Umrao's condition was considered to be serious and his dying declaration was recorded by a Magistrate on 18 May 1935. Umrao stated that he was coming from Nehal and was going to Mubarakpur, and that when he crossed the "bamba" (canal distributary) he was assaulted by Imdad. He proceeded to say that there was enmity between him and Imdad for a year or six months.

(2.) The last sentence uttered by him was that there was no other person when I was being assaulted." The Magistrate noted that after making that statement the deponent became "drowsy." It is also stated in the note that after the drowsiness was over the deponent heard his statement and admitted it to be correct. It is clear that Umrao temporarily lost consciousness, but seemed to recover it before the statement was read out to him. We do not attach importance to the dying declaration which gives the place of assault to be a canal distributary and Imdad as the only assailant. It is doubtful whether he was in full possession of his mental faculties and was able to concentrate. Nowhere else in the evidence is the canal distributary mentioned as the place of occurrence. In defence a positive case has been set up; but there is little in common between the story for the defence and that for the prosecution.

(3.) It is alleged that one Asa Ram obtained a decree against Nasrat and others, whose crops were attached, and the appellant Ashiq was made a suparddar, that on 10 May 1935 Nasrat and others, including Umrao, proceeded to the field in which the attached crops were and attempted to take them, that Ashiq protested and was assaulted. Ashiq, however, ran away, and was pursued by his assailants, when his father Imdad was seen coming from the opposite direction. Ashiq managed to run away, but there was some altercation between Imdad and the opposite party, which was followed by an assault on Imdad. The latter received 18 injuries, including two grievous hurts. Imdad's leg was fractured. The time of this occurrence, as given by the defence, is a little after sunset. Ashiq is said to have proceeded to Ghaziabad, where he narrated the incident to Asa Earn. Next day Ashiq made a complaint before a Magistrate at Ghaziabad. Imdad was taken to a hospital, where his injuries were examined by the doctor then in charge of the hospital. That doctor has since been transferred and has not been examined in the present case. The compounder who attended on him has, however, satisfactorily established that Imdad had 18 injuries, including the fracture of one of his legs and the dislocation of one of his fingers. Three eye-witnesses were examined in defence. Generally speaking, they support the case put forward on behalf of the defence. According to their evidence, Imdad was beaten by 10 persons, including Umrao. The witnesses have not said anything which may account for the injuries to Umrao. Their evidence, if true, shows that on the occasion referred to by them Imdad was beaten and received numerous injuries, including the fracture of one of his legs.