State v. Sirajuddin And Others

Malik, C.J:— The appellants have been convicted under Section 396 of the Indian Penal Code and while the apellants Nos. 1 and 2 have been sentenced to death the other appellants have been sentenced to transportation for life.

2. On the night between 28th and the 29th of December, 1949, a number of dacoits visited village Kadhla and went into the house of one Piru Teli. The villagers, however, on hearing the alarm that dacoits had come to the house of Piru Teli, surrounded the house and there was a free fight between the dacoits and the villagers. As a result one villager Azimullah died and four of the villagers, Basanta, Mahfuz Khan, Ibrahim and Manohar received injuries. Two of the dacoits, Sirajuddin and Abbu, were caught on the spot. The first information report was lodged at the thana, which is at a distance of seven miles from the village, by the village chaukidar at about 12-15 a.m In it however, it is not mentioned that any of the dacoits were known to the village people from before nor are the names of witnesses given. All that is said is that the village people had collected and offered resistance and had caught two of the dacoits. The police started investigation. Sirajuddin on January 1, 1950 made a confession to a Magistrate which, however, he subsequently retracted. The fact that Sirajuddin and Abbu were caught in the village at the time of the dacoity cannot be disputed. The story given by Abbu was that he was not caught at night but in the morning in front of Piru's house and he had gone there to have his cow covered but the cow had strayed into the sugarcane field. One pair of new shoes and a cap which had been recovered by the police, he admitted, were his. The other accused, Sirajuddin, admitted that he was caught in village Kadhla. According to him he left his own village Kawal at 10 o'clock in the morning and was going to his wife's sister's house at Rasulpur when he was suspected of being a dacoit, was beaten and later arrested on the night between the 28th and the 29th of February. No evidence was given that Sirajuddin's wife's sister was at Rasulpur and it is very unlikely that he would be travelling at night in December if he was merely on a visit to the house of his sister-in-law. The story given by the two appellants for their presence in the village at that time of the night is not at all satisfactory. The suggestion, therefore, that the two might have been arrested merely on suspicion cannot be believed especially as specific parts were assigned by the witnesses to these two accused. The fact that they were arrested in the village is not denied. There is no reason why the witnesses for the prosecution should implicate them falsely and we agree with the reasons given by the lower court for believing the evidence against the two appellants and for holding them guilty.

3. We may mention that though some reliance was placed in the lower court on the fact that Sirajuddin had a razai, Sri R. Mitra, learned counsel appearing for Sirajuddin in this Court, did not even mention that fact in his argument. The razai has not been sent up to this Court and, as no reference was made of it in the argument of learned counsel, we did not think it necessary to send for the same. The learned Sessions Judge has considered the point and he was of the opinion that the fact that Sirajuddin was carrying a razai was not incompatible with his having taken part in the dacoity. We have no reason to disagree with that conclusion.

4. The chief point urged by Sri Mitra on behalf of these two appellants was that they should not be convicted under Section 396 but under Section 395 of the Indian Penal Code. He has relied on a decision of this Court in Emperor v. Chandar.1 In that case the dacoits had failed to remove any goods from the house. The villagers had put up a bold front and they had, therefore, to beat a retreat. While they were running way empty-handed, and the villagers were attempting to catch them, one of the villagers was killed by a dacoit. The question was whether in the circumstances a conviction under Section 396 of the Indian Penal Code was proper.

5. Section 396 is as follows:—

If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or transportation for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

6. In considering whether the section applied, the learned Judges held that where, after an unsuccessful attempt to commit dacoity, the dacoits abandoned the idea and decided to escape, if, while escaping to prevent being caught, one of them commits murder then a conviction under Section 396 was not possible as the murder was not committed in “committing dacoity”. The point arose before a bench of the Calcutta High Court in Monoranjan Bhattacharya v. The Emperor 33 Cr. L.J 722. where a dacoity had been successfully committed at a Post Office and while the dacoits were running away with the booty they were chased by the Post Office staff and a large number of villagers and to scare them away the dacoits killed one of the villagers. The learned Chief Justice (Rankin, C.J) held—

In order to commit dacoity it is necessary not only that the dacoit should get the booty away but that he should get away with the booty and as long as he is being pursued in hot haste after the act of the dacoity has just been committed and is in flight for the purpose of completing his offence it is idle to contend that the dacoity is complete and that another transaction and a separate transaction has begun.

7. In that case there was some evidence that the dacoits had abandoned the whole of the booty before the murder was committed. From the judgment it appears that the learned Chief Justice was not satisfied that the whole of the booty had been abandoned by the dacoits. What the learned Chief Justice's decision would have been if he had held that the whole of the booty had been abandoned it is not necessary for us to consider in this case. If the point ever directly arises where from the evidence it is fully established that the dacoits had abandoned the idea of committing dacoity and were attempting to get away without any booty and then one of them commits a murder to scare away the villagers, or to prevent arrest, the question of the applicability of Section 396 of the Indian Penal Code and the correctness or otherwise of the decision in Emperor v. Chandar may have to be considered by a larger bench.

8. Before we come to discuss the facts of this case, which make it unnecessary to refer the case to a larger bench, we may mention a decision of the Bombay High Court in Queen-Emperor v. Sakharam Khandu II Bom. L.R 325.. There the dacoity was not successful as the villagers showed a bold front and interfered with the dacoits from the beginning. On the villagers collecting immediately on the alarm being raised the dacoits attemped to run away and after going a few yards they turned round and one of them to intimidate the villagers fired a gun, the shot wounding three of the villagers and killing Rama. The learned Chief Justice (Jenkins, C.J) held—

It has been found by the learned judge and I accept his finding on this point, that the murder was committed in effecting a safe retreat, so that the question is whether the retreat was separated by time or space from the offence which formed the common object of the assembly as not to form part of it. This, it is obvious, is a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case. In my opinion there was no such separation: the retreat was an essential part of the common criminal purpose; it was a continuation of the actual dacoity while the dacoits were still acting in concert, and so closely and necessarily connected with the actual demand of “khand” that I think it must be taken that the murder was committed in prosecution of the common object of the assembly.

9. If we may say so with respect we fully agree with the observation made by the learned Chief Justice that the question whether murder was committed while committing dacoity is a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case.

10. There is one more submission which may conveniently be disposed of here. It was suggested that, as the dacoits were not able to remove any booty, no dacoity was committed, and it could not, therefore, be said that the murder was committed in “committing dacoity”. Section 391 of the Indian Penal Code defines dacoity as follows:

When five or more persons conjointly commit or attempt to, commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission of attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.

11. So the word “dacoity” has been defined not only where a robbery is committed by five or more persons but where five or more persons had attempted to commit a robbery. In view of the definition of dacoity the argument that, as the dacoits were unsuccessful in removing any booty, no dacoity was committed, is misconceived.

12. Coming now to the facts of this case, no attempt was made on behalf of the defence to establish that the murder was so dissociated by time or space from the dacoity that it must be held that one chapter had closed and a new chapter had begun and that only the person committing the murder could alone be held responsible for his act and that there was no common intention between him and the other members of the gang.

13. From the evidence given by the witnesses for the prosecution it appears that some of the dacoits entered the house while some others were standing outside, but before any booty could be removed they were disturbed by the villagers and the dacoits who had gone inside the house came out. The dacoits who were outside being thus reinforced by the dacoits from inside a free fight took place in which Azimullah received injuries from which he died. Learned counsel has relied on the statement of Mahfuz Khan who in his cross-examination by Sri Harmohan Singh said that Abbu had said that he would hold up the village people and his men should escape from behind and after that the dacoits went behind him. From this statement it does not appear that Azimullah was killed after the dacoits were trying to make good their escape. This witness had said earlier in his evidence that when Abbu offered to cover the retreat he had already beaten Azimullah who was trying to run away. So according to this witness it was Azimullah who was chased and beaten by Abbu and not that Azimullah had chased Abbu.

14. Suleman Khan, P.W 7 in his cross-examination said:

The fight started after my reaching the spot …. The lathi fight began below the chabutra of Piru. (The dacoits had gone to loot Piru's house) …. We went on fighting till the bank of Johar (a tank). Abbu and Siraju had asked his men to escape while they were engaging the village people. These dacoits remained opposing me and other dacoits began running. When Azimullah had fallen down those other dacoits were running away.

15. From this statement it is not very clear whether Azimullah was hit near the chabutra or farther away from it and what exactly was the time when Azimullah was killed. The last sentence quoted would suggest that it was after Azimullah had fallen down that the other dacoits started running away while Abbu and Sirajuddin still covered their retreat. The only other witness who gives the sequence of events is Nain Singh. He says—

Abbu had struck lathi to Azimullah who fell down. The dacoits then struck Mahfuz and Basanta with lathis. They also fell down. After their fall Abbu and Siraju told his men to escape behind them and they would face the village people. Abbu after striking Azimullah ran away.

16. According to this statement the dacoits first offered resistance, killed Azimullah and when they feared that they might be surrounded, as villagers had already gathered on three sides, and the only way open to them to escape was towards the east, Sirajuddin and Abbu, who were ring-leaders, covered the retreat and asked the other dacoits to take advantage of the protection afforded by them and to make good their escape.

17. On the evidence in the case it is not possible to hold that at the time when Azimullah was killed the dacoits had abandoned the idea of committing dacoity and they murdered Azimullah only with the object of getting away. The case Emperor v. Chandar is, therefore, distinguishable. In our view the appellants were rightly convicted under Section 396 of the Indian Penal Code and we affirm their convictions.

18. It has been urged that the appellants should not be given the extreme penalty of death. Learned counsel has urged that while under Section 302, I.P.C a sentence of death may be the normal sentence, under Section 396, I.P.C the court has a wider discretion. Section 396, I.P.C provides for sentence of death, or transportation for life, or rigorous imprisonment for a term which may extend to ten years and also fine, while Section 302, I.P.C provides for sentence of death or transportation and fine. Learned counsel has relied on a decision of this Court in Emperor v. Lal Singh* A.I.R 1938 All. 625. for his submission.

19. Section 367 of the Code of Criminal Procedure which deals with the language in which judgment should be written and the contents of the judgment provides in Clause (5) that if the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why a sentence of death was not passed. No distinction is made in this section between Section 302 and Section 396 of the Indian Penal Code and all that Section 367(5) provides is that a Judge should give reasons when he passes a sentence other than a sentence of death.

20. When a Judge holds that an accused person is guilty of an offence he has to apply his judicial mind to the question of sentence and decide what sentence will be appropriate in the circumstances of the case. Such a discretion is liable to be corrected where necessary by the higher court, if any. All that Section 367(5) of the Code of Criminal Procedure requires is that the Judge shall give his reasons when he passes a sentence, other than a sentence of death, where a sentence of death could be passed. The Indian Penal Code leaves it to the Judge's judicial discretion to decide whether he should pass a sentence of death, or a sentence of transportation for life, or any other sentence which may be permissible under the law, as in awarding any other, sentence, a Judge who passes a sentence of death has to apply his judicial mind. He has to consider the question whether the case is one where a sentence of death should be passed or a lesser sentence. No Judge would pass a sentence of death where it is proper to pass a sentence of transportation for life merely because he has to give reasons for imposing the lesser sentence. As Section 367(5) makes it necessary for the Judge to give reasons for imposing the lesser sentence where no such reason is available, a sentence of death has to be passed. It is only to this limited extent that it can be said, if at all, that the death sentence is the normal sentence in case of murder, but in that respect an offence of murder does not appear to us to be materially different from an offence of dacoity with murder. If while committing a dacoity a murder is committed it cannot be said that the gravity of the offence is less than an ordinary murder. The law recognises this, as in a case of murder a person, other than, the person who has actually committed the murder, can be convicted under Section 302 of the Indian Penal Code only if Section 34 or Section 149 of the Code is applicable. Under Section 396, however, every member of the gang becomes liable for a murder committed in the course of the dacoity. The appellant Sirajuddin is a previous convict. He has already been convicted under Sections 307 and 396. There is definite evidence that Abbu killed Azimullah. They were the ring leaders. We, therefore, do not see any reason to interfere with the sentences passed by the learned Sessions Judge.

21. We dismiss the appeals of these two appellants and confirm the sentences of death passed on them.

22. The appellants Nos. 3 to 6, Bakhtawar, Sukhey, Bashir and Rafiq are represented by Sri S.N Misra, while Nasroo and Qamroo are unrepresented. They are, however, present in person and we have heard them.

23. Nasroo is a young man aged only 19 years, while Qamroo is aged 25 years. The evidence for the prosecution is that Qamroo had a gun. In front of the shop of Piru seven cartridges were found two of which had been fired and five cartridges had missed fire probably because they were old or damaged. Near a pond at a little distance from the place of occurrence there were six more cartridges two of which were live cartridges and four had missed fire. Qamroo was identified at the identification parade by Alladin, Allamehar, Allah Jalaya, Buddhu, Manohara and Ibrahim. None of these witnesses made any mistake. There is no reason, therefore, to reject all this evidence.

24. Qamroo was carrying a gun and he seemed to have made an attempt to fire several shots. We, therefore, see no reason to interfere either with his conviction or his sentence.

25. Nasroo, on the other hand, has not been assigned any special part and he is a young man of 19 years. He was identified correctly by Alladin, Allamehar, Nain Singh, Ibrahim. Manohara, Buddhu Suleman Khan, Piru and Shubrati. Nain Singh identified six persons correctly and made two errors, Piru identified three persons correctly and made four errors and the rest of them made no mistakes in identification. The evidence against him, therefore, is quite satisfactory. There is no reason why these witnesses should have falsely identified him. We, therefore, agree with the lower court that he is guilty, but, in view of his age, we do not think it necessary to sentence him to transportation for life. We, therefore, reduce his sentence to seven years' rigorous imprisonment though maintaining his conviction under Section 396 of the Indian Penal Code.

26. As regards the four accused Bakhtawar, Sukhey, Bashir and Rafiq, there is satisfactory evidence of identification against each of them. As a matter of fact Bakhtawar has been identified by as many as nine witnesses, Alladin, Allamehar, Nain Singh, Ibrahim, Manohara, Allah Jalaya, Buddhu, Suleman Khan and Piru. Out of them Nain Singh identified six accused correctly and made two mistakes and Piru identified three accused correctly and made four mistakes. The rest identified all the accused correctly. The witnesses who were not able to identify Sukhey were Shubrati, Allah Jalaya and Piru, but the witnesses who identified him correctly were Alladin, Allamehar, Nain Singh, Ibrahim, Manohara, Buddhu and Suleman Khan. Out of these seven witnesses Nain Singh made two mistakes and identified six persons correctly. Subrati and Piru were not able to identify Bashir. Bashir was correctly identified by Alladin, Allamehar, Nain Singh, Ibrahim, Manohara, Allah Jalaya and Suleman Khan. As we have already pointed out Nain Singh had made two mistakes and had identified six accused correctly, the rest had made no mistakes in identification. Rafiq was not identified by Allah Jalaya and Piru, but he was correctly identified by Alladin, Allamehar, Nain Singh, Ibrahim, Manohara, Buddhu and Suleman Khan. So far as Sukhey, Bashir and Rafiq appellants-are concerned no good grounds have been suggested why the evidence of the witnesses who have identified them should be rejected. Sukhey and Rafiq are young men of 23 and 20 respectively and we consider that their sentences might also be reduced from transportation for life to seven years' rigorous imprisonment each, while maintaining their conviction under Section 396. We see no reason to interfere with the conviction or the sentence passed against Bashir.

27. Against Bakhtawar, however, there is this fact to be taken into consideration that though according to the Sub-Inspector, Sri Shyam Prakash Sharma, he left the police station in the evening of December 30 at 7 p.m to arrest Bakhtawar, Bakhtawar's village is only at a distance of two miles from the police station, the Sub-Inspector does not seem to have made any arrest till the next morning at aboiut 4 o'clock. After having arrested Bakhtawar, instead of sending him to the police station, as he might well have done, or to Muzafiarnagar, where two buses run every hour from the place of occurrence, Bakhtawar was taken to a distance of five or six miles to village Bhopara where the party went to arrest Baru. According to Bakhtawar he was shown to the witnesses and they were, therefore, able to identify him. There is no evidence to prove this allegation. There was, however, equally good evidence of identification against Baru accused who was given the benefit of doubt by the lower court and who according to the Civil Surgeon was suffering from chronic Harnia of the size almost of a melon and there was a risk of strangulation at any moment. On behalf of Baru it was suggested that he was implicated because he was on terms of enmity with the S.P.O Amer Singh and the learned Sessions Judge said in his judgment that there might be some truth in this allegation. The witnesses had no doubt an opportunity to see the dacoits as there was a fight and a chase thereafter and the fact that so many witnesses have identified the accused has reduced the margin of error to a minimum. Bakhtawar, however, is an old man aged 65 and, in the chase that was given by the villagers, in which there were many young men present, if he was there, it was very likely that he could not have got away. There is no previous conviction against him. In the circumstances we feel that it would be safer to give him the benefit of doubt and we, therefore, set aside his conviction and sentence and direct that he may not surrender to his bail. His bail bonds are cancelled.

28. The result, therefore, is that Sirajuddin alias Siraju's and Abbu's appeals are dismissed. Their convictions and sentences under Section 396 of the Indian Penal Code are confirmed and the reference as against them is accepted. The appeal of Bakhtawar is allowed and his conviction and sentence are set aside. He is to be released forthwith unless he is required in some other case.

29. The convictions of Sukhey, Bashir, Rafiq, Nasroo and Qamroo are maintained and while the sentences of Sukhey, Rafiq and Nasroo are reduced from transportation for life to seven years' rigorous imprisonment each, the sentences passed against Bashir and Qamroo of transportation for life are maintained.