AZAM ALI Vs. EMPEROR

JUDGEMENT

(1.) Azam Ali, son of Mammi Sheikh, age 25, resident of Talaiya Ghuran, police station Kotwali, District Shahjahanpur, appeals from his conviction under Section 302, I.P.C. and a sentence of death. The case is one of a most difficult nature. As we are of opinion that a retrial should be ordered we will endeavour to say as little as possible of our reasons for Chinking that there should be a retrial. It is, however, of course, unavoidable that we should say something.

(2.) The prosecution story is that one Mt. Idia, a Bhatiarin woman, was living in the city of Shahjahanpur, 200 or 300 paces away from the house of the accused Azam Ali. It was the practice of Mt. Idia to go out during the morning to collect refuse. Her husband had been living with her. There were also in her house, according to the first report by Shabrati, her husband's cousin three small children, but according to the evidence of the same man four little children. She had also a son the eldest, of about 15 or 16 years of age, who apparently was not living with her. Some time, it is not stated how long, before 28 November 1928, the husband Magsad is stated to have left Shahjahanpur. He is variously stated to have gone to Moradabad "for the cultivation of melons," and to have gone to Lahore. Strangely enough nothing further has apparently been heard of him, judging from the record throughout the trial. There may be no significance in this. It may only be due to the fact that the surrounding circumstances have not been put before the Court with the care which should have been exercised. It was, to say the least of it, desirable that the Court should know what the husband had to say as to his wife's being missing.

(3.) It is said that in the early morning about sunrise on 28 November 1928, Mt. Idia went out as usual to collect refuse taking with he refuse basket and her broom. The first report stated that she had gone out at 10 a.m. and had not returned since. The discrepancy between "sunrise" and 10 a.m. again may not be of real significance. Some attempt has been made to explain it, and the discrepancy was possibly due to misunderstanding on the part of one person or another. At any rate, since 10 a.m. at the latest Mt. Idia has never been seen again. It is, of course, possible that her disappearance is duo to some other cause than her having been murdered in Azam Ali's house. It is one of the facts which we have had to consider. At 6-30 p.m. on the evening of 28 November 1928, Shabrati made a report at the police station, which is to be found at p. 5 of the paper book, narrating the circumstances of Mt. Idia's disappearance and expressing anxiety. Mt. Idia is said in that report to have been wearing: silver kharua and chhanni, two silver churis on each wrist, a silver kanthsari containing 10 beads and four ear-rings.