1. The appellant, Ramadhin, together with his co-appellants Bachhoo Singh, Bhika, Ramprashad, Ramchandra, Dharma, Dewaji and Rama (Criminal Appeals Nos. 130, 131, 132, 133, 134, 135 and 136 of 1928), whose appeals are also disposed of in this judgment, has been convicted by the Sessions Judge, Nagpur, of an offence under S. 302 read with S. 149, I.P.C, and sentenced to transportation for life. At the same trial, eight appellants were also tried with the aid of a jury, under provisions of Section 269(3) of the Cr PC, for an offences under S. 436, read with S. 149, I.P.C As regards the latter offence, the jury returned a unanimous verdict of not guilty and the Sessions Judge disagreeing with this verdict, has referred the case under Section 307 of the Cr PC, to this Court. In this judgment, therefore, I dispose of the criminal appeals stated as well as of the above reference.
2. The present offence is alleged to have occurred on the 5th day of September last in the course of the communal rioting between Hindus and Muhammadans, which was, at the time, rife in Nagpur. In the particular riot with which I am concerned, no less than five Muhammadans, Budhu, Piru, Zahed Ali, Fateh Khan and Pir Khan met with their death, while others were seriously injured. A house, to be referred to hereafter, was also set on fire, and the circumstances of the case are admittedly such that, if the present appellants are guilty or innocent of the offence under S. 436, I.P.C, they are equally guilty or innocent of the offence under S. 302, read in each case as already stated with S. 149, I.P.C In a confused riot of the kind I am concerned with here, all that the prosecution desires or needs to establish is that the appellants were voluntarily members of the crowd of rioters who committed the offence alleged. In dealing, therefore, with the evidence in this case, I have to consider it, both as regards the appeals and the reference, on the principles which I have adverted to in Emperor v. Kankaya Opposite Party. A.I.R 1926 Nag. 308 , 22 N.L.R 142, viz., that this Court will only interfere with a verdict of a jury when such verdict is obviously perverse or manifestly wrong or unreasonable, and it is from this point of view that I propose examining the evidence in the present case. The case, although a voluminous one, is, from the point of view stated comparatively simple, the one vital question in the case being a mere one of fact as to whether the evidence of certain of the prosecution witnesses, who profess to have seen the various appellants amongst the crowd, should be accepted, or the evidence of the defence witnesses, who depose in each case to alibi on the part of the appellants should, on the contrary, be preferred.
3. Before, however, entering on an examination of the evidence, I desire to dispose of certain law points which have been raised on behalf of the appellants. One of the counsel, who appeared on behalf of the appellant Dharma, raised what appears to me to be a somewhat unsubstantial question of law. As is obvious from the Sessions Judge's judgment and his order on the reference, when read together, the Sessions Judge was of opinion that the opinion of the assessors and jurors as to the innocence of the appellants was a perverse one. It must be noted in this connexion that all the five jurors and assessors were Hindus. The Sessions Judge has given his reasons for his view in this connexion in para 13 of the judgment. Whether that view is correct or not is not a question I am concerned with at the moment. The argument offered in this connexion has been a somewhat novel one. It is that, as the Sessions Judge holds the jurors' verdict and assessors' opinion to be a perverse one, there was no properly constituted Court for the trial of the case in question. I am wholly unable to accept this contention for which I know of no sound basis, either in law or even in common sense. Very obviously the fact of whether a jury is going to return a perverse verdict cannot, in the normal case, appear until the verdict has been given and, even if an individual juror or assessor is, at the inception of the trial, prejudiced in a communal case like the present because of the fact that persons belonging to his own community are being tried for an offence against members of a rival community, the Court can, in the normal case, have no means of finding this out until his verdict or opinion, as the case may be, is given in the matter. I have referred to an unofficially reported case, apparently a Madras one, in which it was laid down that where, in the course of a trial, it is found that one of the assessors is interested, and is so unfit to sit, the duty of the Court is to refer the case to the High Court to set aside the order appointing the incompetent assessor and all subsequent proceedings in the trial. Even if this case could be accepted as laying down a correct exposition of the law, it is obvious, on the face of it, that it has no application to the circumstances of the present case, and, as a matter of fact, another counsel, who appeared for the same appellant (Dharma) admitted in his reply that the Court, as constituted, was a proper one. I see no reason, therefore, to devote further time to this contention which seems to me to have no sound basis, either in law or in reason.
4. The second question of law, which has been raised in this case, is that the statements of witnesses like Harvey (P.W No. 17), Mr. Deoskar, P.W No. 22 and other officers, who give evidence with regard to the identification parades which were held in this case and who depose to certain of the appellants having been identified by the relevant prosecution witnesses, are inadmissible having regard to the provisions of Section 162 of the Cr PC; I am wholly unable to accept this proposition, in support of which a single decision of the Bangoon High Court Full Bench reported in an unofficial publication has been quoted. The witnesses, who depose to certain of the appellants having been identified by certain of the prosecution witnesses, are not, in my opinion, deposing to a statement made to the police. They are, on the contrary, deposing to an actual fact or circumstance seen and observed by themselves. This type of evidence is, after all, only of a corroborative nature, the essential witnesses to the identification being the prosecution ones who identified certain of the appellants; but, even so, the evidence of witnesses like Mr. Harvey and others does not relate to any statement made to the police but is a simple exposition of a fact or circumstance witnessed by themselves. This contention, therefore, seems to me to be entirely without basis, and I have been unable to see that the decision quoted in support of it, in any way, affords justification therefor.
5. I now turn to the facts of the present case; for the purposes of this judgment, it is unnecessary to repeat, in great detail, the story of this lamentable riot in which the majority party showed not only appalling savagery but, at the same time, also despicable cowardice. Five Mahomedans were killed in the riot, viz., Budhu, his brother Piru, his nephew Zahed Ali, one Bagehkhan and his nephew Pir Khan. Husaini, another nephew of Budhu was severely injured, and three other men, Shaikh Kalian, Jafar Khan and Jawahar Khan, also were wounded. Budhu lived in a hut made of tattas with a corrugated iron roof in the Imambada Mohalla of Nagpur, cf. the map (P. 33.) Pateh Khan lived in a hut a short distance away from Budhu. All the appellants lived in the neighbourhood, their houses being shown in the map. There had been trouble in Nagpur on the previous day (4th September 1927), and, on the morning of Monday the 5th September, a crowd of Hindus came to the house of Budhu and enquired whether Fateh Khan and Pir Khan were inside. I am not directly concerned with the anxiety of the Hindus to come in touch with Fateh Khan in particular, but there are indications on record that this man had incurred the special dislike of the Hindus at the time and that enquiries had been made for him, even on the previous evening. Fateh Khan and Pir Khan were as a matter of fact, concealed in the house of Budhu from the previous evening. On the first visit of the crowd on the Monday morning, Budhu came out on being called; he denied that Pateh Khan and Pir Khan were in his house; the crowd started to beat Budhu and he took shelter inside again. There were six Mahomedan men-in-side the house and, it would appear that they made a courageous sally out, armed with what was described as ‘iron swords,” but were some species of iron bands or the like, and drove the Hindus back twice. The crowd, however, once more came up in great numbers; the estimates vary but there must have been at least 500. Kerosene oil was deliberately thrown on the tattas and the house set on fire, and all the six male inmates some of whom had received severe burns in the meantime were forced by the fire to fly outside; they were at once set upon and killed with the exception of Husaini who was left lying unconscious and presumably was considered to be dead, or as good as dead. Shaikh Kalian, who was also in the house, bolted for the Imambada but was pursued by some of the mob and beaten there.
6. In the Imambada there was also one Jafar Khan and he was similarly assaulted. Budhu's wife Jubedunnisa and his daughter Habiban as well as Pateh Khan's wife Maktumbi and his adopted daughter Munirbi then went to the Imambada for shelter, while Mt. Kallo, the mother of Budhu, remained near the house, where the dead bodies were lying, and was found sitting there in the evening by Punia Kotwar (P.W No. 2) who made the first report of the offence. That the crowd, as a whole, was bent on murder and arson and succeeded in their object has not been denied by the defence; nor can it be denied that these unfortunate Mahomedans were done to death under atrocious circumstances of savagery, purely as a result of communal hatred. If the present appellants are proved to have been voluntary members of the attacking crowd, then their guilt as regards both offences is established; if, on the other hand, the evidence leaves the fact of their having been such members of the crowd in doubt, then they are entitled to be acquitted.
7. Before proceeding to examine the evidence, I desire to make certain general observations. Although there can be no diminution of the standard of proof required in a case of serious offence, like the one I am concerned with here, it is pertinent to observe that, as regards the prosecution evidence, considerable allowance must necessarily be made in the case, particularly of the Mahomedan women witnesses who saw their nearest and dearest done to death in the way they were. Their state of mental agony and confusion must have been very pronounced indeed, and, in the case of all the witnesses, it is no doubt true that absolute exactitude of detail cannot be expected from them in their account of a confused and prolonged riot such as I am concerned with in this case.
8. As regards the defence, I feel that I am also bound to make one observation. It is obvious that this case has been most strenuously defended and the prosecution witnesses have been subjected to an extraordinarily meticulous cross-examination, in which they have been confronted with their previous statements and cross-examined at great length on even petty points of detail.
9. As regards the alibi evidence of the appellants, I consider it my duty to make one general observation. Neither in their examination before the Committing Magistrate, nor in that in the Sessions Court, did the appellants disclose what their exact defence was to be. It was only when they entered on their defence that each of the appellants stated, in precise terms, his alibi. That the appellants were within their legal rights in so doing, is, of course, obvious, but I am bound to say that a certain presumption arises against them in this connexion. If the appellants or any of them were innocent men, one should, have expected them, from the first, to say: “I was not there at all, I was elsewhere.” It may be urged, and possibly with some reason, that the appellants were well advised to take this course in case of either the police or members of the Mahomedan community attempting meanwhile to interfere with the evidence of their alibis. In this, there may be some measure of truth but, on the other hand, if an absolutely innocent man is accuse of a offence one naturally expects him, from the very start, to say: “I was not there at all, I was elsewhere in such and such place”; this the innocent man could do without disclosing in detail who the witnesses as to his alibi would be. However this may be, I have thought it well here to mention the fact as to the late stage of the case at which the alibis were disclosed. (The judgment then discussed the oral evidence for, the prosecution and proceeded.) Certain general arguments have been also advanced as to why some of the appellants, viz., Ramadhin, Bachho Singh and Bhika are unlikely to have been amongst the rioters. It is suggested that, as they were employed in the Ralli Press and as no Mahomedans who took refuge there were molested, it would be unlikely that they would molest Mahomedans elsewhere. The argument is about equivalent to saying that boys who are good inside school are necessarily also good outside, and nothing more need be said on this point. It has also been suggested perfectly reasonably, that the evidence particularly of the Mahomedan women, in this case must be viewed with great caution, as human nature being what it is, they would be naturally anxious to see that some Hindus suffer for the crime committed by members of that community. I fully agree in this connexion that caution must be necessary in accepting the evidence, but after careful examination of the evidence and a serious consideration of the probabilities of the case, I am of opinion that a strong prima facie case has been made out against each of the appellants on the evidence examined above. I am in particular impressed with the consistency of the evidence of the identification and I am in full concurrence with the remarks of the Sessions Judge in this connexion. The position thus is that I am of opinion that there was ample prima facie evidence on record to warrant the conviction of the appellants and it becomes necessary therefore to turn to the defence evidence. (The judgment then dealt with the alibi evidence of the various appellants in turn and proceeded.) The case in my opinion thus stands, as follows: There is a large amount of prosecution evidence which specifically connects each and every one of the appellants with having been members of the riotous crowd on the day in question which committed these offences. Keeping in mind fully the principle laid down in Emperor v. Kankaya Opposite Party. A.I.R 1926 Nag. 308 , 22 N.L.R 142 referred to above, I feel myself forced to the conclusion that the prosecution case against these eight men is a true one and establishes a complete prima facie offence against them. The defence evidence elaborately worked up as it obviously has been and ingenious in certain respects, leaves on my mind only one possible impression and that is of absolute falsity. I find it difficult to imagine that the assessors or jurors, as the case may be, who heard the evidence, could, on any reasonable and bona fide grounds, come to the conclusion that these appellants were innocent. I am not concerned now with the motives which led the assessors or jurors to give a verdict which was either perverse, or obviously wrong or unreasonable. It may be that they were actuated by mere communal bias, or it may equally be that, though they thought the appellants to be guilty, they were afraid to give an opinion or, in turn, a verdict accordingly, because of what they possibly feared would at least be said or thought of them by many members of the Hindu community. That one or other motive of such a kind operated on these assessors or jurors I have not the slightest doubt.
10. I have already pointed out that, if the appellants are guilty of the offence under S. 302 read with S. 149, I.P.C, they must equally be held guilty of the offence under S. 436 read with S. 149. As regards the former offence, for the reasons given the appeals of all eight appellants are dismissed, the sentence imposed upon them being the least allowed by the law and one which, I may add, in the circumstances of this case, is certainly not an over-severe one. As regards the reference made by the Sessions Judge under Section 307 of the Cr PC. I accept it and I convict all the appellants of an offence under S. 436 read with S. 149, I.P.C For this offence, they will suffer ten years' rigorous imprisonment each, the said sentence to run concurrently with that of the transportation for life in the case of all eight men.
A.L/R.K
11. Order accordingly.