EMPEROR Vs. ABDUL HAFIZ HASSAN

JUDGEMENT

(1.) This is an appeal by the Government of the Province of Bombay against the acquittal of Abdul Hafiz Hassan who was tried in the Court of the Special First Class Magistrate (Riots), Ahmedabad, on a charge under Section 19(e) of the Indian Arms Act, 1878, for contravention of Section 13 which prohibits every person from going armed with any arms except under a licence and to the extent and in the manner permitted thereby. The prosecution case was as under. On July 1, 1946, a communal riot broke out in Ahmedabad City. On July 4, at about 2- 30 a.m. Head Constable Natwarlal received a telephone message that stones were falling in Dudwali Pole. He at once started with two other policemen, namely, Head Police Constable Bahudinkhan and Police Constable Jayantilal, and went in a bus to Dudwali Pole. He was told there that the stones were coming from the Muslim locality nearby in Rentia Wadi and accordingly the police party went to that Muslim Mohalla in the said Wadi. There they found 6 or 7 persons who ran away on seeing the policemen. The accused, however, was found sitting on the otla of his house with two dharias in his hands. The accused was at once arrested and taken to the police chowki. The defence was that the accused was inside his house, that as he had kept his doors slightly open and a light inside his room he was called out by the police and asked his name, that when he gave his name he was taken away by the policemen and that before the accused had been called out, the police had found two dharias lying on the road, the suggestion being that a false case was made against the accused with the help of the said two dharias. The learned Magistrate disbelieved the prosecution evidence, holding particularly that the evidence of Bahudinkhan had been subsequently put in and that on the facts of this case it could not be said that the accused was "going armed" at the time of his arrest, because the phrase implied moving about with arms. He was inclined to believe that certain Muslims while running away might have put their dhavias into the hand of the accused and that, therefore, the accused was not guilty.

(2.) The evidence for the prosecution consisted of the testimony of Natwarlal, Police Jamadar, the report made on July 4 by Natwarlal and the testimony of two other policemen Bahudinkhan and Jayantilal. The accused examined one Nisarbeg who stated that he saw from his house the police party picking up two dharias which were lying on the road and that thereafter they called out the accused, and on his coming out took the accused with them in their bus. Another witness examined by the accused was one Abdul Gani, an old man of 70, who also gave more or less the same story. One document on which the accused relied appears to be an application made to the District Superintendent of Police on July 4, 1946, stating that Natwarlal came to the Mohalla a second time during the day and that he wanted "to create some dispute so that he might have a chance to use his lathi" up in the Muslim inhabitants of the Mohalla. The defence evidence was not noticed or discussed by the learned Magistrate.

(3.) It seems to Us that the learned Magistrate has disbelieved the prosecution evidence in this case on inadequate grounds. In the first place, his conclusion that witness Bahudinkhan has been put in subsequently appears to us to be clearly wrong. He based his conclusion merely on the fact that the witness was examined on July 16, whereas the other two witnesses had been examined by the police on the 4th. But the report of Natwarlal dated July 4 clearly contains the names of the other two policemen, Bahudinkhan and Jayantilal, and it has not been suggested that this report has been tampered with in any manner. That being so, it seems to us clear that the learned Magistrate's conclusion as regards the belated insertion of the evidence of Bahudinkhan cannot be upheld. With regard to the evidence of Bahudinkhan himself, the learned Magistrate appears to be suspicious of its veracity, because the witness appeared to him to show very poor knowledge of the place where the accused is said to have been arrested. He could not say whether the accused was seated in the first, the last, or the middle house out of a row of houses, or whether at the house itself he was sitting in front of the first, or last, or any of the other rooms. Nor could he say what was the width of the otla on which the accused is alleged to have been sitting. Whereas Natwarlal has said that after the incident the police party went to a number of places on patrol duty, this witness stated that they went immediately with the accused to the police chowki. We do not think that these apparent defects in the evidence of this witness are to be explained on the basis that he is an unreliable witness. He lists materially supported the evidence of the other witnesses, though he is not quite sure as to the position of the exact place where the accused was found seated. As to the police party going after the incident on further patrol duty, this statement was elicited from Natwarlal only in his cross-examination; he also first said, like Bahudinkhan, that after the incident he took the accused to the police station.