ABDUL SUBHAN Vs. EMPEROR

JUDGEMENT

(1.) These are two connected appeals and can be conveniently disposed of together. Abdul Subhan and Punwan or Punnoo, accused, in appeal No. 522 were tried in the Court of the learned Sessions Judge of Bijnor for an offence contrary to Secs.302/34, I.P.C. The charge against them was that they had murdered one Tulshi Gadaria of village Barharpura. Both the accused persons denied the charge and pleaded not guilty. The learned Sessions Judge was of opinion that the guilt of both the accused appellants had been proved to his satisfaction. He therefore convicted them both and sentenced them to transportation for life. In the other case which has given rise to Criminal Appeal No. 523 of 1938 Abdul Subhan, accused, alone was prosecuted under Section 19(f), Arms Act. He has been held guilty by the learned Sessions Judge and has been sentenced to two years rigorous imprisonment. In both the cases the convicted persons have preferred appeals against their convictions and sentences. We will first take up Criminal Appeal No. 522 of 1938. The brief facts of the case are these:

(2.) Tulshi, deceased, was a son of Mokha Gadaria (P. W. 1). It appears that Tulshi and Punwan, accused, cultivated some land jointly. Mt. Kewli, a married daughter of Gangu and a niece of Punwan, accused, used to visit the field held jointly by Punwan and Tulshi, and it is the prosecution case that illicit connexion sprang up between Tulshi and Mt. Kewli. She became pregnant before her gauna had been performed. It is the prosecution case that this was one of the motives for which Punwan, her father's brother, was anxious to murder Tulshi. The prosecution alleges that on the night between 28 February and 1 March 1938, Mokha, the father of Tulshi, was working at his sugarcane pressing machine in a jungle of Mauza Chhaonli which is at a distance of about one mile from the place where Mokha's sugarcane pressing machine was. His son Tulshi was also working there, and it is alleged that at about midnight Tulshi and one Kalwa (P.W. 2) left the place together for the village abadi. The father of Tulshi it appears was anxious that his son should not go alone towards the village Abadi at night time and so it is said that when Kalwa (P.W. 2) arrived there the two started together. They were taking with them a pair of bullocks. After they had covered a short distance from the pressing machine the sound of a gunshot was heard and Kalwa found that Tulshi had been hit and had fallen on the ground. He raised an alarm upon which Mokha and other persons arrived on the scene and they found Tulshi lying dead. There is a police station in Barharpura, the village where Tulshi and others resided. The father of Tulshi went to the police station at 4 A.M. on the morning of 1 March 1938 and made his first report which is typed at pp. 2 and 3. After reciting various causes of enmity existing between him and Punwan and his relations, the father of Tulshi stated that he suspected five persons. One of them was Punwan, accused. The officer in charge of the police station, Thakur Kaushal Singh started investigation of the case. It is alleged that Punwan, accused, was arrested on 6 March 1938. Later on, on the same date, a search was made at a field of Subhan and the prosecution story is that three guns were recovered from this field. It is said that one of them which was a double-barrelled gun showed that it had been recently fired, while in the other barrel of the same gun shots and powder were found to be loaded. The two arrested persons were sent to Bijnor and were produced before a Magistrate for making statements tinder Section 164, Criminal P.C. It would appear that on that date the Magistrate was busy otherwise and then he was busy in connexion with Moharram arrangements. The two accused persons were placed eventually before him on 14 March 1938. Subhan, accused, declined to make any statement, but Punwan made a statement which is typed at pp. 9 to 11. The two accused were sent up for trial. Punwan, accused, retracted his confession before the committing Magistrate. The learned Sessions Judge who tried the case was of opinion that the evidence produced was sufficient for the conviction of the two accused on a charge of murder. The medical evidence produced in the case proves that Tulshi, deceased, was shot dead by some one.

(3.) The first witness examined by the prosecution was Mokha (P.W. l). His evidence shows that it was suspected that his son Tulshi had contracted a liaison with Mt. Kewli. It is also proved by the evidence that Mt. Kewli became pregnant. The prosecution suggests that this was a motive why Punwan accused wished to murder Tulshi. There are no eye-witnesses to the commission of the crime and, as we have already pointed out in the first report, the father of Tulshi suspected Punwan and other relations of Gangu, the father of the girl. The prosecution examined one Rehmat Ullah, (P.W. 8). The story related by this witness was this. Rehmat Ullah admits that he is a badmash and is under police surveillance. His statement is that about two months before the murder of Tulshi, Punnoo, accused, went to him at about 9 or 10 p. M. and made an offer of Rs. 50 to him if he (the witness) would agree to kill Tulshi. It is suggested that this man Rehmat Ullah had a gun in his possession for which he had no license and the fact was known to the village. Rehmat Ullah says that when Punnoo, accused, made the above proposal to him he declined to accede to it altogether. He says that he told Punnoo that he had never done such a thing and that he was under police surveillance. Upon this the witness says that Punnoo asked him whether anybody else possessed a gun and then the witness told him that there were several license holders. The evidence of the witness is that Punnoo made further inquiries and wanted to know whether he could suggest the name of anyone who had a gun without a license and that the witness suggested the name of Subhan, accused. The prosecution alleges that Subhan was approached by Punwan and that he (Subhan) agreed to the proposal about the murder of Tulshi and that object ultimately was carried out by Subhan as desired by Punwan.