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Petitioner: BALADIN VS Respondent: STATE OF UTTAR PRADESH
P L D 1956 Supreme Court (Ind
P L D 1956 Supreme Court (Ind.) 249
Present : Bose, Jagannodhadas and Sinha, JJ
BALADIN and others‑Appellants
Versus
STATE OF UTTAR PRADESH‑Respondent
Criminal Appeals Nos. 118 and 119 of 1954, decided on 18th October 1955.
(a) Penal Code (XLV of 1860)----Ss. 141, 142 & 146‑‑Unlawful assembly‑Whether mere presence amounts to member ship‑Sufficiency of proof.
If members of the family of the appellants and other residents of the village assemble, all such persons could not be condemned ipso facto as being members of that unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The omnibus kind of evidence that all the appellants and many more were the miscreants and were armed with deadly weapons like guns, spears, pharsas axes, lathis etc., has to be very closely scruti nised in order to eliminate all chances of false or mistaken implication. The case of each individual accused has to be examined to satisfy that mere spectators who had not joined the assembly and were unaware of its motive had not been branded as members of the unlawful assembly which committed the crime.
(b) Criminal Procedure Code (V of 1898)-------S. 162.‑--Police record perfunctory or dishonest‑Effect.
The record made by a police investigating officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable on the ground that it was perfunctory or dishonest, it loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great value as it other wise would have in weighing all the material on the r‑.cord as against each individual accused.
(c) Constitution of India----Article 134 (1) (c) (Constitution of Pakistan, Article 158 (c) )‑Certificate‑ What it should indicate‑Words and phrases-----"Certify".
Article 134 (1) (a) and (b) lays down two conditions which confer a right of appeal to the Supreme Court. That in itself indicates that normally there is no right of appeal in any other type of case. The only exception is (c) where a right is con ferred ("an appeal `shall' lie") if the High Court "certifies" that the case is a fit one for appeal. The word "certifies" is a strong word. It indicates that the High Court must bring its mind to bear on the question and in all cases of judicial orders and certificates the reasons for the order must be apparent on the face of the order itself. The Supreme Court must be in a position to know first that the High Court has applied its mind to the matter and not acted mechanically and secondly, exactly, what the High Court's difficulty and exactly what questions of outstanding difficulty or importance the Hilt Court feels that the Supreme Court ought to settle. It is not enough to say "leave to appeal is given" and no more because an appeal is not allowed in the ordinary way when conditions (a) and (h) are not satisfied.
C. G. Mathur, Advocate for Appellants (in both appeals).
K. B. Asthana and C. P. Lal Advocates for Respondent.
JUDGMENT
SINHA, J.‑-------The two appeals arise out of the same judgment and order of a Division Bench of the Allahabad High Court, on leave granted by it at the same time that the judgment was delivered. Something will have to be said in the course of this judgment about the legality or regularity of the leave so granted. There are 16 appellants in Criminal Appeal No. 118 of 1954, and only one appellant in 119 of 1954.
Both the appeals relate to the occurrence which took place on the morning of the 7th February 1952, at village Goran, Police Station Ait, in the district of Jalaun of the State of Uttar Pradesh. 57 persons were placed on trial before the learned Sessions Judge of Orai on charges tinder sections 120‑B and 148, I. P. C., as also under sections 201, 302, 325 and 452, all read with section 149, I. P. C.
The learned trial Judge acquitted all the accused in respect of the charge under section 120‑B, I. P. C. He convicted 36 of them under sections 148, 201/149 and 302/149, I. P. C., of whom nine were sentenced to death and the others to trans portation for life under section 302/149, to two years rigorous imprisonment under section 148, I. P.C. and to seven years' rigorous imprisonment tinder' section 201/149 in respect of four of them, and to three years' imprisonment in respect of the rest.
No more need be said about the convictions and sentences under section 325/149, I. P. C., because those have not been maintained by the High Court on appeal. Some of them had also been convicted under section 452 and sentenced to rigo rous imprisonment for three years. One more accused named Kamoda Chamar was convicted under section 325/149, I. P. C., and sentenced to three years' rigorous imprisonment. Thus in all 37 out of the 57 accused were convicted and sentenced by the trial Court, partly in agreement and partly in disagreement with the assessors.
On appeal, the High Court dismissed the appeal of Baladin Lodhi, who is the first appellant before us, and affirmed his convictions and sentences under sections 148, 452, 302/149 and 201/149, I. P. C., and accepted the reference, by confirming the sentence of death passed against him in respect 'of the charge tinder section 302/149.
In respect of the other appellants who had been sentenced to death, the High Court allowed the appeal of four of them and acquitted them and in respect of the others allowed their appeal on the question of sentence under section 302/149 by giving them the lesser sentence of transportation for life. The High Court allowed the appeal of twenty of the appellants before it and acquitted them of all charges. In the result, the High Court confirmed the convictions and sentences in respect of the remaining. 17 appellants before it with the modification on the question of sentence as aforesaid.
Hence 16 of them figure as the appellants in Criminal Appeal No, 118 of 1954 and Jangi is the sole appellant in Criminal Appeal No. 119 of 1954. Both these appeals have been heard together and will be disposed of by this judgment.
Before setting out the case against the accused it is necessary briefly to notice the background of the events leading up to the ghastly occurrence. Twelve or thirteen refugee families from the West Punjab were rehabilitated in village Goran which is about 10 miles from Orai town by the direct `kachha' route and about 25 miles by the road proper.
The State Government provided those displaced families with lands for cultivation and sites in the village `abadi' for residential purposes, as also loans for helping them to settle in their new homes. But unfortunately the new‑comers were not welcome to the old residents of the village because they were looked upon as competitors for louse sites and culturable lands of the village. The result was a great deal of tension between the old residents on the one side and the new settlers on the other.
Mutual recriminations followed and some incidents of a minor nature, like cattle grazing disputes and simple assaults, took place, till the four years that the new displaced families had come to stay in. the village there were allegation of harassment on both sides and complaints to the public authorities. The gulf between the two factions widened until the climax was reached on the 4th February 1952, that is to say, three (lays before the occurrence which was the subject‑matter of the charges against the accused persons.
On that date Vir Singh `alias Vir Lodhi' was alleged to have secured the services of one Shambhu Lodhi, resident of district Hamirpur, who is alleged to be a notorious character. It is admitted by both parties that an incident took place between Diwan Singh and Mangal Singh, two of the displaced persons on the one side, and Vir Singh Lodhi and Shambhu Lodhi on the other, in which grievous hurt was said to have been caused to Shambhu Lodhi and simple injuries to the dis placed persons, leading to the lodging of counter‑informations at the police station.
Both sides had some injuries, though not equally serious but it appears, as found by the Courts below, that the incident was very lightly treated by the police and not at all as the precursor of more serious events which actually took place tierce days later. As the ‑refugees found the attitude of the local police hostile to them, 13 male members of the refugee families including Mool Singh, Mela Singh, Sant Singh and Ravel Singh, four of the six persons who were cruelly done to in cold blood in the occurrence of the 7th February, came to Orai on the morning of the 5th February 1952, to report the matter to the district authorities and to the Refugee Officer.
They succeeded only in n‑raking an application to the Refugee Officer and could not get the district authorities to lend them hearing. Disappointed at this attitude of the district autho rities, they decided to file a regular complaint in Court against Shambhu aforesaid and others. They spent the 6th February is making further attempts to contact the public authorities to ventilate their grievances arid in preparing a complaint to be filed in Court.
Things were happening in the other camp also at village Goran. The villagers are said to have assembled at the house of Pariehhat Lodhi, adjacent to the house of Mangal Singh, one of the refugees, after having come to know that most of aloe male members of the refugee families had gone to the district headquarters to take steps against them. The villagers said to have resolved to kill all the male members of the refugee families so as to put an end to what they thought was the recurring trouble.
When Raval Singh and Kartar Singh, two of the 13 refugees v: ho had gone to Orai, came back to their village, were informed h; their womenfolk of the conspiracy said to have been. hatched by the villagers that very evening. Naturally, therefore, they came post‑haste that same night, that is to say, the night between the 6th and 7th February to Orai and informed their other male members about the resolution.
Such an alarming news caused a great deal of commotion amongst the refugee and they forthwith got their application prepared for presentation to the District Magistrate the Superintendent of Police and the Refugee Officer informing them about the aforesaid resolution of the old residents of the village and their apprehensions about the safety of their persons and imploring the authorities to give them and their families protection against the threatened attack.
They also made it clear to those authorities that the situa tion was so grave that they had decided to go the village Goran under the cover of the night to rescue their families and to bring them back to safety. It was decided that six of the refugees, namely, Mool Singh, Mela Singh, Ravel Singh son of Mangal Singh, Sant Singh. Kastura Singh and Harbans Singh should go back to the village to rescue their families. Those were the six unfortunate victims of the occurrence which took place the next morning.
As soon as those six ill‑fated persons reached the village on the morning of the 7th February 1952 at about sunrise, they found their womenfolk in a state of alarm and collected at the house of Mangal Singh aforesaid. They were apprised of the desperate situation in which the womenfolk found them selves in other absence of the male members. After talking over the situation at both ends and exchanging information, three of them, namely, Mela Singh, Ravel Singh and Moot Singh were taken upstairs for having their breakfast after their night's journey.
Thus when three of the six male members who had arrived from Orai ,were upstairs anal the other three, Kastura Singh, Harbans Singh and Sant Singh, were on the ground floor of the house, suddenly a crowd of 80 to 100 persons surrounded the said Mangal Singh's house armed with axes, spears, daggers, guns, etc, Narain Das Lodhi and Baladin Lodhi along with 15 to 20 other Lodhis appeared on the first floor of Mangal Singh's house with guns and shot down those three persons.
The other Lodhis were also said to have attacked those three unfortunate male members and belaboured theca with their lethal weapons. As soon as Mela Singh received two gunshat wounds and rolled down in his attempt to run down stairs, he was picked up by Sint. Bhagwanti. (one of the four eye‑witnesses examined in the case) and was hidden in the grain room of Mangal Singh's house. The Lodhis who were on the first floor of the house threw the dead bodies of Mool Singh and Ravel Singh from the roof of Mangal Singh's house towards the cattle shed of Mahabir, one of the appellants.
The three other male members of the refugee families who were on tie ground floor were prevented from escaping, the large mob assembled in front of Mangal Singh's house Soiree of the members of the mob who had guns with them. (Prabhu Dayal and Shobha Lal not before the Court) fired a number of shots at those three persons and killed them. The other members of the mob are said to have belaboured those unfortunate victims with their spears, axes and daggers.
Mela Singh who had been concealed as aforesaid in the grain room of Mangal Singh's house teas said to have been dragged out by Raja Ram and Mahabir, two of the appellants and others. When taken out of the room, he was said to have been assaulted by Jangi Lodhi, the sole appellant in Criminal Appeal No. 119 of 1954 and by other persons not before the Court, with axes, and by Uma Charah, another appellant, with a sword, and thus some of the members of the unlawful assembly finished him off also.
The dead bodies of all those six helpless victims were then dragged to the front of Manna Teli's house. Two bullock carts, one belonging to and driven by Manna Teli, and the other belonging to and driven by Vira Lodhi, two of the appellants, were loaded each with three of the dead bodies and carried to the tank in the village. A tin of kerosene oil was sprinkled on the dead bodies and Vira Lodhi and others are said to have set fire to the joint pyre of those six dead bodies which were thus burnt to ashes:
Such was the ghastly tragedy which is said to have been witnessed by four of the female inmates in the house at that time, namely, Mst. Paiyyan Devi (P. W. 18), Mst. Shapti Devi (P. W. 21), and Mst. Parvati (P. W. 22), who were the widows respectively of Mela Singh, Mool Singh and Sant Singh, three of the six victims and the fourth Mst. Bhagwanti (P. W. 20), wife of Mangal Singh and mother of the fourth victim Ravel Singh.
While the aforesaid six male members had thus met their unnatural death, the remaining male refugees who had stayed back at Orai were trying to get into touch with the public authorities on the 7th February, without any success. In the meantime, at about 2 p.m., when they were waiting at the residence of the Superintendent of Police for an interview, two of the members brought the sad news from the market where they had gone for their meals that there was a rumour that those six refugees who had left for the village had been murder.
They naturally all began to weep and bemoan their lot and then the Superintendent of Police on coming to know of the sad news granted them an interview. Ire directed the Circle inspector, Kabir Ahmad (P. W. 27) at about 4‑30 p.m. to proceed to the village on a truck with an armed guard and the refugees. After sunset, on the way he met Raj Bahadur Singh, Sub‑Inspector of Police in charge Ait Police Station coming towards Oral by a passenger bus, apparently completely ignorant of what had happened at the village Goran.
This ignorance may have been due to the fact that at about 5 p.m. the same day the village chowkidar Ramola, one of the appellants, had lodged an information at the police station, that. all was quiet in the village. As will presently appear, it was the quiet of a deserted village after the holocaust and the burning of the dead bodies by the members of the mob.
The Circle Inspector with Sub‑Inspector Raj Bahadur Singh went to the police station, strengthened their force and then reached the village at about midnight between the 7th and 8th February. At that time the village presented a deserted appearance with no lights in any house and no whispers from any direction. The original residents of the village, as also the refugees, it appears, had for the time being completely abandoned the village.
Mangal Singh and Diwan Singh, refugees, took the police truck to village Kotra, about two and a half miles away from village Goran in search of their womenfolk and children. On the way, in the jungle they picked up some of their womenfolk and children and brought them back to the village. In the morning of the 8th February, the Deputy Superintendent of Police also arrived with some of the refugee ladies, namely, Mst. Paiyyan Devi and Smt. Bhagwanti Devi, two of the four eye‑witnesses aforesaid to the unfortunate occurrence.
These two ladies had trudged until midnight from the village to Orai and informed the Superintendent of Police about the occurrence to which they were eye‑witnesses. It was then that the Superintendent of Police deputed the Deputy Superintendent of Police to look into the matter. Until he reached that village next morning no progress had been made in the investigation of the case as he found the Sub‑Inspector asleep.
A remarkable Feature of the case, as pointed out by the Courts below, is the unsatisfactory manner in which the police investigation took place. It appears that fine local Police from the village chowkidar upwards were not only apathetic but definitely hostile to the refugees. Instead of taking recourse to preventive action in view of the rising tension between the two parties in the village, things Were allowed to drift until the unfortunate occurrence, as described above, took place.
Even then the Sub‑Inspector of Police, Raj Bahadur Singh (P. W. 30), did not take prompt measures to apprehend the culprits. Not only that, as pointed out by the Courts below, from the very start of his investigation he gave such a twist to the prosecution case, by the entries in his diary, as to make it appear that the occurrence had taken place not in broad daylight; as really was the prosecution case, but in the dark ness of the night so that identification of the culprits would be difficult, if not impossible.
Naturally, there was a complaint to the superior officers against him and that very day the investigation was, taken out of his hands and Circle Inspector Kabir Ahmad (P. W, 27) was placed in charge of the police investigation. But he also does not appear to have been immune from the local police bias in favour of the accused, with the result that on further complaints being made he was also relieved of the investigation on the 21st February 1952.
The then Deputy Superintendent of Police, C. B. Singh (P. W. 28) did not start the investigation in. right earnest until the 30th May 1952, though he is said to have taken charge of the investigation from Inspector Kabir Ahmad on the 22nd or 23rd February 1952. All he did up till then was to raid the houses of several of the accused persons in that village to effect their arrest, to serve warrants of attachment and proclamation under sections 87 and 88, Criminal P. C. and to record the statements of some persons on the 11th and 13th March 1952.
The bulk of the investigation by him was made after the 30th May 1952 and even then the record of statements of wit nesses made to him does not do credit to a senior police officer, inasmuch as he failed to record the statements with particular reference to the individual part said to have been played by the accused persons, though he admitted that the witnesses examined by him had assigned particular acts to various accused persons.
It is manifest that the police officers concerned with the investigation of the case did not fully realize the gravity
of the situation and did not take prompt steps to collect evidence of an occurrence which on the face of it was rather of an unusual character in so far as it had been the result of a pre concerted plan to annihilate the male members of the refugee families which were being treated by the residents of the village as ' so many usurpers of their culturable lands and house sites.
Even if the police had realized the seriousness of the situation, they did not prove equal to the occasion. Either they were incompetent or were unwilling to take all necessary steps, to vindicate justice and to inspire confidence. In the minds of the aggrieved party. As will presently appear, this remissness on the part of the police officers has had a very adverse effect on the prosecution case arid has added to the difficulties of the Court in finding out who the real culprits were.
'Though the prosecution did not rely upon the investigation made or purported to have been made by the Sub‑Inspec tor and the Circle Inspector aforesaid, they have been examined as prosecution witnesses in order to enable the parties to elicit such information as they thought necessary and proper.
The defence was a complete denial of all knowledge of the occurrence and the alleged death of all the six male refugees who had travelled on the night between the 6th and 7th February from Orai to the village. The accused persons ascribed their implication in the occurrence to various kinds of enmity between them and the refugee families.
It was alleged on behalf of the accused that the refugee families had rendered themselves so obnoxious to the original inhabitants of the village that the villagers, blacksmiths, potters, shoe‑makers and other professional persons in the village, including money‑lenders and shop‑keepers had refused to render them any services because they would not pay for those services. On the main occurrence the suggestion on behalf of the accused persons appears to have been that even the six refugees had been put to death, the occurrence might have taken place in the darkness of the night in which H unknown persons had taken part and that the admitted enmity between the two parties was the reason for false implication.
It is thus clear that it is common ground between, the prosecution and the defence that serious enmities existed between the original inhabitants of the villager , on one side and the refugee families on the other. It is not as usually happens, a case of animosities between particular individuals on the one side and named individuals on the other.
As a result of police investigation, such as it was, and committal proceedings the accused persons placed at the trial were charged, firstly, under section 120‑B, I. P. C., with conspiracy to do illegal acts, namely, to murder and to cause grievous hurt to the refugees in general and to six named refugees as aforesaid in particular; secondly, under section 148, I. P. C., with being members of an unlawful assembly‑armed with deadly weapons like guns, spears, swords, pharsas, axes and lathis with the common object to cause death and grievous hurt to refugees in general and the silt named refugees in particular ; thirdly, under section 452, I. P. C., with house trespass by entering into the building belonging to Marigal Singh and used as a human dwelling, after having made prepa rations for causing death and hurt; forthly, under section 302 read with section 149, 1. P. C., with having committed the murder of those six persons in pursuance of the common object of the unlawful assembly and to furtherance of the aforesaid criminal conspiracy ; and lastly, under section 201 read with section 149, I. P. C., for causing the evidence of the aforesaid offences to disappear by burning .the dead bodies of those six persons and by throwing the bones and ashes into the village tank.
Reference to the charge under section 325 read with section 149, I. P. C., is no more necessary at this stage.
The learned Sessions Judge, partly agreeing and partly disagreeing with the opinion of the three assessors who aided him at the trial, for reasons which may not bear scrutiny acquitted all the accused of the charge of conspiracy under section 120‑B, although he believed the prosecution case that there was a meeting on the evening of the 6th February at the house of Parichhat Lodhi at which it was resolved that the male members of the refugee families should be killed, as alleged by the prosecution.
In respect of the other charges he convicted and sentenced 37 of the accused persons, as stated above. In the course of his judgment the learned trial Judge found…
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