1. These five appeals were preferred from the judgment of the Special Tribunal No.IV, Hyderabad, convicting Syed Kasim Razvi, the last President of the once powerful organization, Majlis Ittehadul Muslimein & his four other associate volunteers (Razakars) of that organization, Under Sections 128, 124, 850, 177 & 264 (146, 148, 395, 201 & 324, Indian Code) of the Hyderabad Penal Code. Only Accused 3 Nazir Ali was convicted & sentenced to 2 years E. I. Under Section 264, & Accused l Kasim Razvi & No. 5 Haji Khan to 2 years each Under Section 177 & all the accused were sentenced to 2 years on each account Under Sections 123,124 & 7 years each Under Section 330, Hyderabad Penal Code. The imprisonment is rigorous & all sentences to run concurrently. Oat of the raiding party of 100 to 150 persons, only seven were presented for trial. One died during the trial & the other was acquitted. The conviction of the remaining five has resulted in these appeals.
2. The jurisdiction, competency & powers of the Special Tribunal sentencing them is challenged, & benefit of doubt is claimed with regard to the identification of the accused, & on account of want of reliability of the witnesses, & for alleged discrepancies & exaggeration in their statements, narrating the events. The date of the occurrence is 10-1-1948, & the events cover a period of about two to three hours from about 5 p.m. to sunset. As my learned brother has dealt with the facts of the case in sufficient detail, I shall be brief with regard thereto.
3. The Special Tribunal's Regulation under which the Tribunal was constituted was promulgated by the Military Governor with the assent of H. E. H. the Nizam but the validating Act did not receive such an assent. It is contended that these enactments were without the competence to enact them. It is unnecessary to repeat the arguments here as we have disposed of these contentions in detail in the other appeal Nos. 1346/6 of 1950, 1404/6 & 1403/6 of 1950 disposed of, Kasim Razvi is a common accused in both the cases & Mr. MacKenna has argued in both the cases for this accused. The legislative authority existing in Hyderabad prior to the Police Action & the operations of as. 25 & 35 of the Hyderabad Legislative Assembly Ain dated 16th sherewar 1355 P. have been determined in the other appeal & these objections of the accused were rejected. Briefly it may be stated here that immediately on the conclusion of terms between H. E. H. the Nizam & the Indian authorities at the successful termination of the Police Action the local Legislature & the authority of the Prime Minister to enact regulations for six months has completely ceased to exist, & H. E. H. the Nizam vested all authority of the Govt. in the then Military Governor Major General J. N. Chaudhury, who enacted these regulations. Under these circumstances the necessity of assent to a regulation of this kind cannot be imported merely because prior to Police Action local Legislature needed the assent, The words 'all authority' are comprehensive words & it may be possible under certain circumstances to limit the construction of these words in view of the circumstances & the purpose for which the authority was conferred but in cases of transfer of authority on terms of certain agreements on the bisis of subordination or even equality no limitations can be inferred except from the terms of the document itself conveying the authority. There is no reason here whatever to distinguish different Junctions of Govt. administrative & legislative on the basis of their inherent nature but the intention was clearly to concentrate the authority in the hands of the Military Governor. Therefore there is nothing either in the words of a document or in the attending circumstances to limit the authority for such legislation which may arise in the course of administration of the State to try the special cases which could not be dealt with adequately by the ordinary Cts. either due to the amount of labour involved & time required or for some other reason that may exist in the mind of the administering authority. The Nizam possessed the sovereign authority in the State & that sovereign authority was vested by him in the Military Governor. The contention of Mr. MacKenna that such a document should be construed strictly may be maintainable, yet it does not lead us to any other conclusion. The wordings of the document are clear & unambiguous A document means no more or less than whatever the intention is & this intention was clarified later by H. E. H. the Nizam with a Sub. sequent firman which puts an end to any doubts that may be entertained in this behalf. For further discussion of the common contentions see judgment in case Nos. 1346/6, 1404/6 and 1403/6 of 1950 before this Ct. disposed of today.
4. The next contention is that this particular case was not laid before the Tribunal in accordance with the provisions i.e., with an express order in writing Under Section 3 of this regulation. The charge sheet in this case was lodged with the signature of the Advocate-General. It is not contended that the Military Governor did not intend that the case should be placed before this Tribunal but that in the absence of an order contemplate:!, the Tribunal does not possess necessary authority & jurisdiction to try the case. On 6-10-1949 an order was passed by the Military Governor in exercise of the powers conferred by section, directing that the Special Tribunal shall try the offences specified in the annexed table. In the annexed table Sections 330, 266, 287, 368, 124, 177 (Sections 395, 326, 347, 436, 148 & 201, Indian Code) read with Sections 7/71/77 & 125 (34-114-120 & 149, Indian Penal Code), that is dacoity, grievous hurt, wrongful confinement, arson, riot & destruction of evidence were mentioned as also the names of the accused. It will be observed that it was this particular case that was refd. & the order directing these offences to be heard did not mention Sections 123 & 264 (146 & 334,1. P.C.) & it was therefore contended that the conviction of the accused under those two sections is bad for want of competence, in the Ct. to try & convict for those two particular offences. The learned Advocate-General relies on the principle embodied in Sections 232 & 236 (227 & 230, Indian Cr. P.C.) & similar sections of the Hyderabad Cr. P.C. (Sections 227 & 230, Indian Code) that the order embraced the two offences inspite of the failure to specify them in the order & it is submitted alternately that the Ct. of Session (Special Tribunal) once seized of the case can at all events avail of the power under those sections to try & convict for the unmentioned offences. Both these sections involve matters of procedure, the first section presupposes competence of the Ct. to try the offences & the second section deals with oases where inspite of the competence to entertain a particular offence, the amended or the added offence needs proper sanction for the trial thereof. The Ct. may be incompetent only for want of sanction. These sections enable a Ct. to deal with a case adequately & completely but neither of these sections enable assumption or enlargement of existing jurisdiction or of competence to entertain a particular offence. It could be challenged that if the trial of the added offences are outside the scope of authority & competence of the Ct., the sections cannot be so availed of as to enlarge jurisdiction. Section 213 (226 Indian Code) applies to particular Cts. for alteration of charge at the commencement of the trial, & Section 232 (227, Indian Code) applies to all Cts, during the trial of the case. None of these provisions add to the jurisdiction & competence of a Ct., which is covered exhaustively by earlier sections. In the case of HH.B. Gill v. Emperor 75 I. A. 41 : A.I.R. (35) 1948 P.C. 128 : 49 Cr.L.J. 503 it was held that Section 230, Cr. P.C. is clearly part of the Code which becomes operative when once a sanction has been given Under Section 197. It was held that when sanction for 120 b/420, Penal Code, is given & the accused after having been acquitted from the charge Under Section 120 B/420 is tried on a fresh altered charge Under Section 120 B/161 on the direction by the H. C. on appeal, the sanction Under Section 197 if it was necessary must be held to have been given justifying the Ct. in taking cognizance of the altered charge. H.H.B. Gill v. Emperor A.I.R. (34) 1947 P.C. 9 : 48 Cr. L.J. 155 was affd. Under Section 197 (Section 201, Hyderabad Code) certain persons acting in discharge of their official duties are protected that 'no Ct. shall take cognizance of such offence except with the previous sanction' of certain authorities mentioned there. Here what is required is a sanction to prosecute & there is no statutory provision couched in the same terms as in Section 3 of the Regulation to the effect that the Ct. will try offence or offences for which direction is given. What is needed Under Section 197 is the sanction to proceed with the alleged offences. It has been held under this section in earlier Indian decision that a sanction under this section must specify the offence. The weight of authority is that when a sanction is given in respect of a particular offence, it is not open to the Ct. to proceed in respect of a different offence. But if the charge is based on the facts as those on which a prosecution has been sanctioned, there is no bar to the Ct. proceeding with that charge. There is sufficient authority for the proposition that Under Section 197 there is no need to specify the offence; it is enough if the facts are set out clearly in the order granting sanction, & in such a case reference to offences may not be conclusive by itself. It was pointed out in Gulabchand Dwarakdas v. The King, 75 I.A. 30 : A.I.R. (35) 1948 P.C. 82 : 49 Cr. L. J, 261 that the section contemplates sanction with regard to the facts of the case principally & not with regard to the determination of the offence. That case H.H.M, Gill v. Emperor, 75 I. A. 41 : (A.I.R. (35) 1948 P.C. 128 : 49 Cr. L.J. 803) above cited proceeds on the assumption that a sanction was actually given on the facts as would cover also the added or additional charge. Lord Simonds delivering the judgment of the Board observed:
But they think it desirable to say that upon this question they fully concur with the judgment of the . G. in this case. Section 230, Cr. P.C. is clearly part of the Code which becomes operative when once a sanction has been given under Section 197. It is an inference which at this late stage of the judgment could not properly be challenged, that the same facts were before the sanctioning authority when the sanction was given.
Here the direction is with regard to the offence, under a statutory obligation to do so (Under Section 3) & there would be no inference in this case of statutory obligation that the direction was obtained on the facts of the case & there is no material or evidence to support that inference. In my opinion the principles underlying sanction of the Ct. contemplated Under Section 197, have no bearing on the cases of want of direction Under Section 3 of the Regulation & that the want of any direction whatever under that Section 3 in a case will result in similar consequences where a case is tried by a Ct. of Session without commitment, provided for its taking cognizance of a case in exercise of original criminal jurisdiction Under Section 198, Hyderabad Cr. P.C. (198 of Indian Code). No Ct. of Session is empowered to take cognizance of a case without proper committal. That special provision is found in Sections 3 & 4 (c) of the Regulation. That is the only coherent & uniform interpretation. The principles of sanction Under Section 201 (519 of Indian Cr. P.C.) depends on a different footing.
5. In the case reported in Jhakar Abir v. Province of Bihar A.I.R. (32) 1945 Pat. 98 : 46 Cr. L.J. 399 F.B. with regard to the Cts. of the Special Judges constituted under the Ordinance, Justice Agarwallah points out in his judgment that it is clear from Section 5 & other sections of the ordinance under which these Cts. were constituted that none of the special Ct. had jurisdiction to try any offence or oases except as directed by a general or special order. Shearer J. in his judgment observed that the Special Judges were authorised to try the major offences only & special Mags, of summary Cts. were empowered to try minor offences only. A special judge could not convict the accused of a minor offence. The only power would be to convict the accused of the major offences. Ha would not possess the general jurisdiction of a Ct. of Session to try any offence. He could not exercise the powers conferred by Section 238, Indian Cr. P.C. which enables a Ct. to convict of a minor offence a person charged with a major one. That special judge was barred from trying an accused for all offences committed in one transaction & from convicting an accused person charged with a major offence if the evidence showed that he had in fact committed a minor one.
6. I may point out that there may be cases where the form of referring order may be construed to include all sorts of minor offences, I have held here that Section 266 includes Section 264, Hyderabad Penal Code. But in the absence of a clear inference being possible under the terms of the order, as was possible here, the fact that a major offence has been mentioned in the direction of a kind provided for Under Section 3 the minor offences cannot be taken to have been included by necessary implication because the direction required under the .Section could have been with regard to a particular offence or offences & was so secured under a special order. It would be against all established cannons of interpretation to hold that for the simple reason that the other sections could have also been included, as the included one it was just a matter of an error or mistake of drafting where there is nothing to point to such a mistake. Where the intention of the authority making a particular order is clear on the face of it, there is no presumption to the contrary in the face of the clear intention expressed in the wording of the order. I have held in the other case Nos. 1346/6 etc. of 1950 that the provisions of Section 3 are imperative. For various reasons I agree with my Lord the Chief Justice that the Tribunal, therefore, cannot hear & convict the accused for Section 123 as Section 124, Hyderabad Penal Code, is already there. With regard to the conviction of accused No. 3 for Section 264 I am of opinion that mention of Section 266 in the order does actually include this section, as there is no reason whatever to include Section 266 & exclude the other section, also in view of the description of the offences in the direction given by the Military Governor.
7. I shall now examine the case with regard to the conviction & sentence of the accused under other sections specified in the directions given by the Military Governor. As the facts of the case & the important portions of the record are given with sufficient details in the judgment of my learned brother, I shall be very brief with regard thereto.
8. The village of Bibinagar, the scene of the occurence is a small neat village situated adjoining the Rly. Station about twentyone miles from Hyderabad. It is situated on the highway between Hyderabad & Warangal & the highway passes along the Rly. line few miles on either side of that village. The highway & the Travellers' Bungalow are situated just outside the wire fencing of the Rly. Station area & the village is similarly situated on the other side of the Ely/Station. The Station Master & the Asst. Station Master's houses are situated within the Rly. fencing & the shed known as Poshetti's hotel is also situated near the Station Master's house. The distances between all these places from the place where the cars stopped to the station, the hotel & the places where the Razakars are alleged to have visited are all situated within a few hundred yards & the walking distances between them & the other places visited by the Razakars would not be more than a few minutes' walk.
9. The occurrence on that date & at that hour was not denied by the defence. It is suggested that the occurrence was of a minor character or some acts of disturbance committed by a batch of Razakars (who cannot be identified) infuriated at the anti-Razakar slogans shouted out to them in answer to theirs, cannot but be of a minor character. It is further submitted that the measure of punishment was altogether out of proportion to the nature of the crime & considering the deterrent nature of punishment, the position of the country has completely changed terminating the possibility of similar occurrences again.
10. The communique issued by the then Govt. at the instance of the Prime Minister ran that 'the Police enquiries into the incident revealed that a lorry carrying Muslim passengers was passing by the side of the Bibinagar Rly. Station when a number of persons were waiting for the train. The persons in the lorry were shouting patriotic slogans. The crowd at the station reacted to these slogans by hurling stones & making certain disloyal remarks about the person of the Ruler. This led to a fracas between the passengers in the lorry & those assembled at the station. Reports regarding looting & armed attack are entirely unfounded. Police enquiries are in progress & the conditions in the Bibinagar village is normal.' The date of the communique is 14.1-1948. Hamiduddin Ahmad who was the Secretary for Broadcasting & Information at that time has sworn that this communique was issued in this matter, that he, at the orders of the Prime Minister, phoned to the Director General of Police to find out the facts about what had appeared in the press under the Caption 'Fez Cap men raid Bibinagar Station.' The Director General gave out his version of the incident & that was shown to the Prime Minister & issued. The contents of the record of the investigation made by the Rly. Police at Amberpet the First Information Report & the report of the Station staff are said to be similarly distorted & suppressed & it appears that the attempt to minimise this occurrence by the authorities then in power was folld. by private enquiries by local bodies who were interested in social & village welfare. In view of the allegation that all these reports were falsified & minimised, naturally definite assistance was not available from those early reports & proceedings &, therefore, this documentary evidence on the other hand calls for a very careful & cautious examination of the material & the the evidence tendered in Ct. to determine the exact magnitude of the guilt & with regard to the identification of the accused. It may be pointed out that none of the accused were mentioned in the earlier reports & Police Investigation, but there is a satisfactory reason for this that the conditions prevalent at the time & the strength & power of the Razakars & of accused 1 did not permit the disclosure of the real facts & of the names of the accused for fear of vengeance & retaliation. It is said that this was enabled as the police authority was anxious to minimise this incident under the general policy of the then Govt. It is alleged that the party of volunteers in uniforms armed with lethal weapons (lathi?, guns etc.) were going from Bhongir to Hyderabad side on 10 1-1948 under the leadership of Syed Kasim Razvi, accused 1. The road mostly runs along with Ely. line & men on the road adjoining the Ely. Station of Bibinagar shouted certain slogans or some persons of the other community in the Ely. compound shouted out antislogans. The party in the two motor lorries Stopped & alighting from the vehicles divided themselves into various groups at the instigation & under the directions of accused 1, visited the Ely. Station, several parts of the village & pursued the inhabitants & the station staff & committed acts of violence, robbery, wrongful confinement, visiting residential houses & burning clothes of the injured. It was alleged that the Razakar party secured property worth about Rs. 31,267- 8-0 consisting of cash, clothes & jewellery etc
11. Inspite of the evidence of alibi produced by so one of the accused there is overwhelming evidence of the participation of the accused & of the commission of the various unlawful acts. Some of the witnesses knew the accused even before the occurrence. The fact is that no proper & efficient investigation or enquiry followed these events & it was in fact undertaken long afterwards with the result that a considerable time elapsed before the witnesses were called to identify the accused. The defence is perfectly justified in the cantention that an identification after such a length of time cannot be judicially availed of unless there is some convincing reason to accept that identification. But as it is in this case there are good reasons to accept the identification because the witnesses know the accused even before that event. Where in an incident like this a witness sees a person, it is not ordinarily possible for him to identify such a person with acceptable certainty but when one knows the other, he is only to recognise him in a moment, in one look & once such a recognition has taken place no amount of time renders that identification doubtful for in that case the possibility of doubt is eliminated altogether & what is required of a witness is the remembrance of the fact of the recognition. But to see one for the first time & then to recognise him merely from his appearance after some time does permit a doubt & uncertainty which may very well in many instances fall short of proof. But in a case like this the fact of recognition from former knowledge confines the question of identity merely to the credibility that may be attached to the evidence of that witness & the possibility of a mistake or doubt is ruled out altogether. In such cases the lapse of time between the event & the identification loses all importance.
12. After a very careful & anxious consideration of the evidence in the case, I am unable to disagree with the findings of the Tribunal generally & the only conclusion possible on this evidence is that the accused are guilty of the offences attributed to them. From the present record there is only one conclusion & the case of benefit of doubt does not exist here because any doubt, if at all, must arise from the record of the case itself.
13. I have pointed out in a number of oases that the ordinary village & country witnesses are not very careful in stating on oath to be their own perception, what they are induced to believe to have happened whether actually within their knowledge or not. Discrepancies in the statements of the witnesses does not necessarily point to their uttering deliberate falsehoods. When they do, full effect must be given to it. But in a case like this when the witnesses have to state a long story, after a lapse of considerable period, of a number of acts by various persons divided into parties & at various places, a discrepancy need not necessarily point to a falsehood. The witnesses were carefully examined at great length, & to do justice to the defence, I must say that every opportunity, however insignificant, has been fully availed of. Power of observation & retention & description & expression, all have their own part to play, when one comes to examine the record of evidence. Therefore while mere immaterial discrepancies will not be allowed to be availed of, without regard to their actual importance in the case the accused have actually benefited when the evidence fell below the mark. I am satisfied that the Tribunal has been sufficiently cautious in believing the evidence & has rightly rejected a number of allegations of robbery & identification in connection therewith when the evidence was unsatisfactory or meagre, & permitted of doubt, & such evidence has been clearly distd. in the judgment of the lower Ct. Now there is no evidence to show that as related in the charge sheet, the Razakars at the instigation & under the directions of Kasim Razvi accused 1 stopped, alighted from the vehicles & visited the Ely. Station & the village in batches under his directions. There is no justification whatever for such a statement. In para 186 of its judgment the Tribunal found that the accused l arrived on the scene later or at the time the attack had commenced. It was found that the two lorries stopped between the Dak Bungalow & the Hyderabad level-crossing, Razakars rushed cut, & in the meantime one more lorry & two jeeps arrived. These last mentioned vehicles stopped near the tamarind trees near the eastern level crossing. Accused 1 was in a motor vehicle that followed & the Razakars who started the mischief were in the first two lorries had felt themselves provoked. That fact is established beyond any doubt. Evidently the accused 1 who was is one of the last three vehicles could not have known, at least of the shouting of the slogans, the stopping of the two lorries & earlier happenings till after the attack had already begun. The men on the platform had disappeared from there & the Razakars directed themselves towards the village in their pursuit, at least at the commencement of the events, Some of the prosecution witnesses said that they heard that 'Durra' meaning the Accused 1 had arrived. Whatever responsibility may be attached to his acts, there is nothing to show that be arrived on the scene to instigate or stop the commencement of the attack. His responsibility whatever it be commences from his failure to interfere in the continuation of the commission of unlawful acts. He was certainly the accredited leader of the party. It is highly probable that he may have called it off successfully. He intervened at least in one or two incidents & his directions were obeyed by the Razakara, He burned the shirts of the wounded men. I hold that these are the only acts from which liability must be ascertained. In fact there is no evidence whatever or even an allegation that he hit any. body or committed a robbery, or that a robbery or theft was committed in his presence. He may have thought it to be below his dignity & position to participate directly, when the chastisement was carried on by his volunteers. None of the articles robbed could be found perhaps on amount of the weakness in the early investigation, & due to the lapse of time. It is strange that there is no evidence whatsoever to find that the robberies were for personal profit or for common benefit. i.e., for the benefit of Majlis Ittehadul Muslimein. In connection with his late arrival, it is important to bear in mind that admittedly there was no prearranged plan to visit Bibinagar, thus the Razakars were merely passing by when they were evidently enraged to commence the attack. It may further have some bearing in determining the nature of the crime committed by accused 1, whether it is to be by abetment or it is to be of equal nature with his volunteers committing them by way of constructive liability Under Sections 7 & 125 of the Hyderabad Penal Code (34 & 149, Indian Code) on the ground of commensality of intention or in pursuance of the object of the unlawful assembly. One deals with the common intention & the other with the common object of the unlawful assembly. Arriving late, having failed to interfere, can he be hell to have had the common intention or to have participated in the promotion & achievement of the common object of the assembly Oases of Sections 7 & 125 are really in the nature of abetment with additional liablity in the presence of certain mental conditions co-extensive wish that of the principal delinquent.
14. I agree with the Tribunal that only a very few cases of robbery alleged are actually proved, & the evidence of witnessea like 13 & 81 is wholly unreliable. They had made up apparently a very strong case with the documentary evidence in their support but the Tribunal has rightly refused to rely on this evidence. There are human limitations to the credulity (sic) of the witnesses when they propose to describe a statement with particulars as given by one or two witnesses alleging it that the accused 1 swore at them bidding them again to show the houses of the congressmen & the Sahukars. The memory of these witnesses & their power of retention & understanding on an occasion like this must be unnaturally powerful to claim credibility. The High improbability of this piece of evidence is apparent, as even after these injunctions the witness is taken to the car instead of loading them to the houses of the Sahukars & congressmen. On local inspection we found that the houses of the well-to-do persons were prominent enough & then there were Muslamans there to show the houses if it was desired & these witnesses were not in particular possession of the knowledge desired. The important evidence of the school mistress which we are inclined to accept shows that there were well-to-do Sahukars whose houses were not looted actually. Sahukars & congressmen in the villages are usually important men, & their houses may be sought equally for chastisement. The fact can be overlooked that if out & out dacoity along with chastisement unrestrained was the objective of this assembly, many other acts of dacoity would have resulted. The case that the intention was for any personal or common benefit by robbery is completely overthrown by the fact that it is not denied by the prosecution, that the unlawful nature of the assembly commenced sometime after the two oars were stopped without any premeditation, The fact truly & simply is that the Razakars enraged or under faint resentment suddenly decided to chastise the persons at the station, followed them in search of some or any of them into the village, & in course of that committed some acts of dacoity. The liability is sufficiently restricted within the limits of the law, in holding accused l liable for the acts of the members of the assembly, his failure to interfere & in burning the shirts & beyond that it cannot reasonably go. 15. P. W. 13 complained to Kasim Razvi that Govt. money has been stolen & that he lost his rings & Kada taken from his mother. Accused 1 instead of paying any heed to his complaint enjoined him to show the houses of the congressmen & the Sahukars. Where was the occasion to select this man & P. W. l to show the houses, when their houses were evident enough & could have been shown by any of the local Muslims then. P. W. l says he was taken to the lorry instead of being allowed to show. His evidence has been rejected by the Tribunal not on account of the improbability of his story but because of other cogent reasons. Naturally when P. W. 1 comes forward to repeat the same story in the same terms, no greater weight can be attached to his evidence. The recklessness of the evidence of this kind is further illustrated by the statement of P. W. 11 who found accused l behind the Charadi resting on Umpire's stick. The witness fell at his feet who kicked him. This witness cannot be believed at least in his identification of the accused, because the only occasion on which he had seen accused 1 before was when he was passing by him in a oar at Hyderabad months ago & while passing by a relation of his has pointed out to him. He identifies him with certainty without any other reason. It is not humanly possible to identify a person with certainty when the witness had only a chance glance, It must be further assumed, to rely on his identification that the person in that passing car was Razvi. This is a typical evidence of a village witness with whom we have to be careful. He swears to know with certainty without hesitation, what he perhaps only believes to be true. I have pointed in the case of Omrao Singh v. The State (1348} Nazair Hyd. 372, that in cases of identification it is not only the credibility of the witness that bears on the question of identification, it must be carefully judged what are the elements of error possible in a particular act of identification.
16. We, however, hold that accused l was there, not on the identification of such witnesses, too simple & trusting to be reld. completely on matters of identification unless the fact of identification is otherwise confirmed, but on the evidence of other witnesses who have no reason to lie, & could not possibly err, in their observation. P. W. 39 Addl. D. S. P.. Nalgonda met him on that day at Bhongir Dak Bangalow at about 4-30 P.M. in company of persons wearing Khaki & green uniforms. They had come in 3 buses. Of course he saw them at the Bhongir Dak Bungalow at about 4.30 P.M. before the departure for Hyderabad & it would not take more than half an hour to get to Bibinagar from there. Evidently the Razakars accompanied him or he accompanied the Razakars. He was seen with them. P. W. 5 the Customs Nakadar, who knew him very well met him at Bibinagar on that occasion. He was taken to Razvi, & at his instructions he was released by the Razakars on the confirmation of the Station Master that he was the Customs Nakadar of Bibinager. This witness had also intervened for P. W. 2 who was let off by the order of accsed 1. He was also seen by other witnesses at the tamarind trees, when the blood stained clothes were burnt by him. In the circumstances the least that can hold ground against accused l is that he was there at the time of the occurrence, arriving there just after the commencement of the attack. The Razakars took directions from him in matters which they refd. over to him, & they were all over the village & performed acts of violence & chastisement. The fact that the Razakars on the occasion took orders from him, released persons at his instructions, that ha did participate constructively in the unlawful acts of violence & burnt the blood stained clothes, is evidence of violence. It is highly improbable that the witnesses could report to him when even the Station Master dared not mention their names, after the incident in his report to the authorities. To doubt that would be to doubt the whole prosecution evidence, as the fact that the village was raided by Razakars could not be mentioned even the next day, & even the day after & even on the following days. Therefore, his guilt for dacoity committed by others must arise, if at all constructively or as an abettor, independent of the fact of the reports being made to him or of his asking to show the houses of the Sahukars for that purpose, as we hold this part of the story highly improbable & not substantiated.
17. The proposition would be what is the measure of the guilt of an accredited leader of a party who could have stopped the occurrence, when he found an assembly of his men at a time when they had commenced an unrestrained violent attack, & did not exert his power or influence to stop the unlawful acts. Except perhaps in international wrongs as is suggested by Kelsen in Law & Peace in International Relations 1942 Ed, pp. 96 101, criminal responsibility, is never vicarious. The natural basis of the form of vicarious liability is in the first place evidential. There are such uncommon difficulties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it:
A word, a gesture, or a tune may be sufficient indication for a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service. Yet who can prove such a manner of complicity.
The acts of chastisement were within his knowledge, because he knew what the Razakars were doing as soon as he arrived there, he had the clothes of the injured to destroy the evidence of unlawful attacks. I think that from the whole evidence it can be rightly inferred that he did participate in the doing of the volunteers without actually committing a direct act of chastisement or dacoity himself.
18. The right of assembly is a right of the public & is in fact encouraged in any modern society provided it is for a lawful purpose. Common efforts & national movements require it. Even formation of volunteer bodies is not prohibited under the general law. The right to collect peacefully, to act lawfully, is one recognised & ensured in all modern governmental institutions. The prohibitive provisions of Section 149 are attracted when such a purpose is either unlawful at its inception or assumes that character subsequently. I have pointed that out in Sarkar Ali v. Omrao Singh, 1348 F. Nazair Hyd. p. 272 at pp. 294, 295. Under Section 7, it is the common intention which is the basis of liability. The section is restricted to common intention & does not embrace any knowledge, Sunder Singh v. Emperor, 14 Luck. 660 : A.I.R. (26) 1939 Oudh 207 : 40 Cr. L.J. 722. It also contemplates a series of acts done by several persons, some by them & some by another, but all in persuance of the common intention. There must be some participation in the common intention. Same & similar intention must not be confused with the common intention:
the partition which divides their bounds is often very thin; nevertheless, the distinction is real & if overlooked may result in miscarriage of justice'.... 'The inference of common intention should never be reached unless it is necessary inference deducible from the circumstances of the case.
The above passage from the P.C. judgment in Mahboob Shah v. Emperor, 72 I. A, 148 :A.I.R. (52) 1945 P.C. 118 : 46 Cr. L.J. 669) is reported in most of the text books on the subject. The following statement by Bishop, an American author is quoted with approval by Macnaughton, that if the wrong done is a fresh & independent wrong springing wholly from the mind of the doer, the other is not a criminal therein merely because when it was done he intended to participate with the doer in a different wrong. In ease of the unlawful assembly, it has been held that any sudden & unpremeditated act done by a member of the unlawful assembly would not render all the members thereto liable, unless it was shown that the assembly did understand & realised either that such offence would be committed or was likely to be necessary for the common object. It is only when a Ct. with some judicial certitude holds that a particular accused must have preconceived or premeditated the result when an accused acts in concert with others, in order to bring about that result that this section may be applied. It is difficult to conceive that accused l did not actually realise, or understand the serious consequences & crimes that were being committed that evening, if not with his direct guidance, at least by his active co-operation & connivance. It may be said that as leader & a person of authority, the constructive liability is enlarged enough to embrace him, under the doctrine of common objective in cases of unlawful assembly. So far as the act of dacoity is concerned, the liability of accused l certainly cannot be within the sphere of common intention Under Section 7, yet it arises with regard to the object of unlawful assembly. Otherwise, there may be lesser liability by way of 'abetment' or there may be none at all.
19. The statement of accused l was:
I deny all the charges stated by the witnesses....It is nothing but a political stunt ... I have never been at Bibinagar Station or Bibinagar village in my life except that I might have passed once or twice while travelling by train & many times when passing by road.
His answer to the pieces of evidence read out to him was that it was all false. For example:
Q: You have heard the evidence of P. W. 11 Mallagari Siviah that when he was brought before you, he fell at your feet & said that the Razakars had taken away his money, that you abused him ,. & kicked him aside. Do you wish to say anything?
A: I am sorry it is all false, baseless, mean.
Q: You have heard the evidence of P. W. 32 J. H. Subbiah, that at that time the Razakars were going about as a set of a regular army wearing uniforms & armed with rifles & guns. . , that you used to be called Field Marshal from October or November 1947 till the date of Police Action-you were all powerful etc.
A: As to my having been Field Marshal 7 powerful is all imagination....I was President of that Organization, that is Majlis Ittehadul Muslimeen & its Razakar organisation,
Q: You have heard the evidence of P. W. 36 Hamiduddinthe suggestion on behalf of the prosecution appears to be that the authorities....made by light of the occurrence & did not take any action.
A: I cannot say anything about it, I have no concern about it, etc.
He then proceeded to say that even after the Military Govt. when the Police portfolio was with the Military Governor the Police reported that the case had not been proved, & the witnesses do not identify & case be dropped. His suggestion is that the prosecution evidence was altogether tutored by the Praja Party, Congress & the police, Nagawalla, a police officer of high rank, whose services were engaged for some time by the Hyderabad Govt. during the investigation of these cases was called as a Ct. witness, in accordance to the wishes of the defence. He deposed that he looked into Bibinagar investigation under the impression that there could be a charge of murder in this case against accused l in connection with the witness who was pushed into the well. But he found that the man was alive & he took no more interest in it. This piece of evidence was reld. on by the defence to allege that there was an attempt to exaggerate the case, Accused 1 produced only one witness at his defence, R. Jaipal Rao, Monitoring Director of the All India Radio Broadcasting Station, Hyderabad, to prove the personal message he had released on the occasion of the death of Gandhiji. It was intended to show that he was favourably disposed towards his personality & respected him. Of course the evidence of Nagawalla & of the defence witness has no bearing whatever on his innocence or guilt, & the defence, therefore, is confined to the fact that the events were exaggerated, as against the allegation of minimising the happenings by the then Govt.
20. With regard to the story in the police statements Exs. d-9, d-24 that the villagers on the platform followed the lorries a considerable distance shouting & beckoning the Razakars to come & seeing them get down pelted them with stones, & more or less similar versions in Exs. d-7, d-8, D-14, d-16, d 17 & D-18 were not accepted by the Tribunal as containing no measure of truth. The defence contends that they made unsuccessful attempts to test the former record through the evidence of the Investigation Officer by demanding his production as a witness & by other documentary record of former enquiry & investigation & all this evidence should have been made available to them. There is some justification in that contention but the record as it is could not improve it, (I mean former investigation record), very much. However the defence had ample opportunity to produce any evidence they wished, to show the unimportant nature of the events, if they were really as such. The Tribunal held, that examined in detail there are many differences between the entries of former police record & the evidence in this case. They held that they have no hesitation in finding that the rly. & the Amber pet Police gave a false shape to the occurrence with the intention of dwindling down its dimensions & making it appear that it was only a petty offence.
21. Of course there is some suggestion by a witness that these Razakars were his (accused l's) henchmen but here the case is not that he sent them out on this errand, but rather that he actually participated in it, when the happenings commenced without any previous design or premeditation. As against the clear prosecution evidence of his presence there, there is no defence evidence in respect of this accused, as in the cases of other accused, that he was not there.
22. Whether it was a case of out & out dacoity or not, with the legal inference of that being the one of the unlawful objects of the assembly, it can be said that the actual acts committed by the different accused, were of a very grave nature. There were reckless acts of breaking in into some houses & a horrible treatment of the inmates. For instance the events at her house were narrated by a young lady, Rathnamma, a school-mistress of the village primary school, The school was closed at the time. [After discussing the evidence his Lordship proceeded as follows:] This witness was believed by the Tribunal. We also find no reason to discredit her evidence. She does not identify any accused. I have given her story as it gives a fair idea of what happened in the village. It was bad enough as it was, but of course there was not general looting on a wide scale, but some other similar incidents did happen & the accused were identified.
23. We agree with the Tribunal that the defence evidence of alibi of accused 2 to 6 is not effective enough to disprove the prosecution case as established against each of the accused.
24. As far as accused l is concerned, Section 71 of the Hyderabad Penal Code (Sectioon 114, Indian Code) renders the liability of the abetting accused when present to that of one who has actually committed the crime. I have held him liable Under Section 125 (S: 149, Indian Code) of the Hyderabad Penal Code.
25. But accused 2, as the Tribunal observed, had not lost all feelings or sympathy at the time, & had helped one of the injured. It was argued on his behalf that they mentioned in the body of the judgment that they would consider his case with regard to the measure of punishment but perhaps left the matter over by oversight. Hie sentence Under Section 330, Hyderabad Penal Code needs a special consideration. I think that his act of mercy in offering water does not diminish his liability & therefore reject the contention, for want of a reason to reduce his sentence.
26. In conclusion we acquit all the accused l to 5 Under Section 123, Hyderabad Penal Code for the above mentioned reasons. Otherwise the conviction & sentences passed by the Tribunal on accused l to 5 are upheld.
27. A delinquent is sometimes driven to commit a crime not only by his evil & reckless disposition, or bad motives. He may be induced to do it by his social or sympathetic impulses. In such a case although there should be no sympathy for the criminal who voluntarily places himself in active co-operation, the presence of such temptation in itself calls for severity of punishment. But the compelling temptation, as pointed out by some of the text writers on criminal propoundance, as a disproof of the degraded disposition of which usually accompanies wrong doing, demands leniency. We do not find any such case that calls for leniency in this case.
28. The appeals of the accused are allowed partially & they are acquitted from the conviction Under Section 128, Hyderabad Penal Code. The conviction of the accused Under Sections 124, 264, 330 & 177, Hyderabad Penal Code & the sentences passed by the Tribunal for those offences are upheld, & the sentences are to run concurrently as ordered by the Tribunal & the appeals of the accused are dismissed to that extent. This judgment shall govern all the five appeals.
29. Five appeals have been filed by the five convicted persons in this case known as the Bibinagar Dacoity case, from the unanimous judgment dated 11-9-1960 of the Special Tribunal No. 4 consisting of three members. The details of the offences of which each of the accused has been found guilty & the sentences awarded on each charge, which are directed to run concurrently, are given below in tabular form:
No. Name Guilty of Sentence
Ac. 1 Syed Kasim Razvi. Section 123 of Asafia
Penal Code, 2 years' R.I.
' 124 -do- 2 years' R.I.
' 330 -do- 7 years' R.I.
' 177/66 -do- 2 years' R.I.
Ac. 2 Mir Kader Ali Khan ' 123 -do- 2 years' R.I.
' 124 -do- 2 years' R.I.
' 330 -do- 7 years' R.I.
Ac. 3 Syed Nazir Ali ' 123 -do- 2 years' R.I.
' 124 -do- 2 years' R.I.
' 264 -do- 2 years' R.I.
' 330 -do- 7 years' R.I.
Ac. 4 Mahtab Khan ' 123 -do- 2 years' R.I.
' 124 -do- 2 years' R.I.
' 330 -do- 7 years' R.I.
Ac. 5 Haji Khan ' 123 -do- 2 years' R.I.
' 124 -do- 2 years' R.I.
' 330 -do- 7 years' R.I.
' 177 -do- 2 years'R.I.
30. The charges broadly speaking are that the above accused alone with the absconding accused committed various acts of rioting, rioting with dangerous weapons, dacoity, arson & causing grievous injuries to persona etc., on 10-1-1948, between 6 & 7-80 p. M., at the Bibinagar Rly. station's premises & the village itself.
31. The record in this case placed before us is yery voluminous. The prosecution have examined 40 witnesses on their behalf, the accused called 10 defence witnesses & one witness was examined as a Ct. witness. The judgment pronounced by the Tribunal runs into 140 typed pages & the oral evidence of all the witnesses cornea to 1326 typed pages. In addition, the prosecution have filed 21 exhibits & the defence ha3 put in 79, while there are 8 Ct. exhibits.
32. I will first deal with the legal argument submitted by the learned Counsel for the defense which is that no case could be tried by the Tribunal unless there was a direction from the Military Governor, nor could a later direction by him validate the proceedings. His first contention was that the Regulation purporting to validate the proceedings had not received the assent of H. E. H. the Nizam & secondly even if the assent of the Nizam was consd. unnecessary the continuance of the trial offended Article 21 of the Constitution.
33. I do not agree that at that time H. E. H. the Nizam's assent was necessary. The Nizam had delegated full power to the Military Governor & the validating Regulation passed on 6-10-1949 cured the defect in the proceedings. Once it is held that the defect is cured then it cannot be said that the trial was not held in accordance with the procedure established by law & there can be no question of Article 21 of the Constitution being infringed. The Validating Regulation was as much the law as the Regulation appointing the Tribunal.
34. Another legal argument of the defence submitted in this case is that the Military Governor having made an order empowering the Tribunal to try the offences under certain sections the Tribunal is not competent to frame a charge under another section & convict the accused, even though the charge may be of the same nature or lesser seriousness & based on the same facts. For example, if the Military Governor ordered the trial of a charge of murder, the Tribunal cannot convict the accused of culpable homicide not amounting to murder, or of grievous hurt. His contention is that if on the facts the Tribunal came to the conclusion that the charge mentioned by the Military Governor is not proved, & the lesser offence is proved, then the Tribunal has to get a fresh order from the Military Governor, otherwise, according to the learned counsel, for the applts. the trial is completely vitiated. He argues that the Military Governor Under Section 3 of the Regulation need not have specified the sections & might have given a general order, but he having specified them, the power given to the Tribunal becomes narrower & the Tribunal cannot go beyond the power conferred by the Military Governor, His argument is that there is a difference between a Ct. constituted under the Criminal Procedure Code & a Ct. con stituted under the Special Tribunals Regulation & such a Tribunal does not have the power given to the ordinary Ct. of law Under Section 14, Cri. P.C.I do not agree with this contention. According to Section 6 of the Regulation, the Tribunal is like any other Ct. of Session with original jurisdiction. The Regulation merely creates a Ct. & does not interfere with the ordinary procedure. Perhaps if the set of facts to which the Military Governor applied his mind & gave the direction, & the set of facts that were put before the Tribunal were different, then that point may become arguable, but as long as there is no such difference, the argument of the learned Counsel is not tenable.
35. Coming to the facts, the charge sheet filed by the prosecution is as follows:
On the 10th Isfandar 1357 Fasli, corresponding to 10-1-1948, about 150 uniformed & armed Razakara, inclusive of the accused mentioned in the charge sheet were coming from Mongir to Hyderabad in motor vehicles under the leadership of accused 1, Syed Kasim Razvi, at about 5 p. m., they were passing by the Bibinagar Rly. Station shouting the slogans 'Sha-e-Osman Zindabad' & 'Azad Hyderabad Paindabad'; on this some persons who were within the station's compound shouted the slogan 'Mahatma Gandhi-ki-jai'; hewing this, the Razakars stopped the motor vehicles divided themselves into various groups & at the instigation Si under the direction of accused 1 entered the Rly. Station Compound & several parts of Bibinagar, pursued many of the inhabitants & the station staff, assaulted them, inflicted injuries on them, robbed them, committed dacoity, kept them in wrongful confinement, burnt one residential house, & burnt the blood-stained clothes of the injured; & the party obtained properties worth about Rs. 31,267 8 0, consisting of jewellery, clothing, cash, etc.
36. The evidence is fully discussed in the judgment of the Tribunal & I need not go over the came ground again, None of the parties thought it necessary to read the entire evidence. The learned Counsel for the defence read out 3ome portions of the evidence in support of his arguments & the learned Advocate-General contented himself by replying to the same. The main heads of the arguments of the defence on the merits may briefly be stated as follows: (1) That the case is the result of interference of political parties & a minor occurrence of a fracas has been exaggerated into a serious one of robbery, dacoity, grievous hurt, etc; (2) that the object of the Razakars going to the Rly. platform & the village, as appears from the evidence, could merely be to teach the persons who shouted anti-slogans, a lesson; (3) that the contemporary documents of investigation support the defence in that theory ; (4) that if the dacoity was the common object, then certainly many more houses would have been looted & consider, able amount of property taken. The very small amount of property taken shows that they were acts of individuals & not committed in pursuant of a common object; (5) that most of the stories of theft & robbery are false, exaggerated & no) proved; (6) that the identification of the accused is not reliable.
37. As regards the first point, I have to decide net to whether it was really an ordinary incident as, a was urged by the defence, or a serious riot by persons armed with deadly weapons & whether they deliberately assaulted people, inflicted injuries, robbed & committed arson, etc, as is stated in the charge-sheet. After going through the evidence & hearing the arguments of the defence, there is absolutely no doubt in my mind that serious & shameful acts were committed & those who committed them were guilty of serious offences as indicated in the charge-sheet & as held proved by the Tribunal.
38. Almost every prosecution witness, who has seen the occurrence, has testified to the deliberate nature & seriousness of the occurrence. Guns were fired, the attack was unprovoked, as soon as the Kazakar3 came they started beating people with swords & spears, inflicting serious injuries, pulling out jewels from the persona of women, breaking boxes & almirahs, taking away jewels, wherever they could find. Surely, these acts cannot be the acts of those whose object was merely to chastise people who had raised the alleged anti-slogans. Some of the witnesses like the Asst. Station-master & the Station-master & their womenfolk cannot be Said to belong to any political party. Their story is supported by Exs. P-5, 6, 8 & d-13 (a). Then after discussing the evidence of P. W. 33 & P.. W. 32, his Lordship proceeded;]
39. All this conclusively proves that the incident was a serious riot by persons armed with deadly weapons, & not a mere fracas.
40. It is argued on behalf of the accused that the case, having been closed as untraced, according to Ex. D.-2, dated 30.9-1948, it was raked up for political reasons. In this connection, we have to see under what conditions it was declared as untraced and as such the Govt. Press Note, ex. P.-18, & the noting in the Govt. file Ex. P.-17, become relevant. The Govt. Press Note, dated 13-1-1948 runs as follows:
With reference to a news item regarding a clash between two communities at Bibinagar village appearing in section of the press, the Director of Information has been authorised to issue the following Press Note:
Police enquiries into the incident reveal that a lorry carrying Muslim Passengers was passing by the side of the Bibinagar Rly. Station, where a number of people were waiting for a train. The people in the lorry were shouting patriotic slogans. The crowd at the Station reacted to these slogans by hurling stones & making certain disloyal remarks about the person of the Ruler. This led to a fracas between the passengers in the lorry & those assembled at the Station.
Reports regarding looting & armed attack are entirely unfounded. Police enquiries are in progress & the condition in the Bibinagar village is normal.
41. This communique differs very much from even what is recorded in the defence exhibits reld. on by the learned Counsel for the accused. Even the earlier investigation documents, e.g., Ex. D.-13 (a) clearly shows that the men were volunteers of the Ittehad-ul-Muslimeen, that they were armed with spears, swords & guns, that the train had already departed, that, there was looting & an armed attack.
42. This communique clearly indicates how the whole matter was twisted within three days of the occurrence & even before the investigation was really started. The communique says that the lorries contained Muslim passengers instead of Razakars. It also says that the reports of the armed attack & looting are entirely unfounded. It was not for the Govt at that stage to say that the reports were unfounded which is incorrect even according to the earlier documents. This communique indicates the state of things at the time & the investigation that could be expected in such cases in those days. No wonder that after this communique, the matter was dropped by the Police & declared untraceable without any investigation. It is evident that a very serious case was hushed up deliberately for political reasons; & but for the Police Action it would never hare come before a Ct. of Law.
43. The learned Counsel for the applta. relies on the earlier investigation records which he calls contemporary documents & contends that the extent of the injuries & loss of property was small. It is contended on behalf of the prosecution that the earlier documents are not to be reld. on as the Police at that time were under the influence of the Razakars. From the attitude of the Police, as appears from the record, it is quite clear that they did not do their duty properly & in spite of the complaints recorded by them during the first two or three days they seem to have done nothing & after complete inactivity for more than 8 months, they reported that the case is untraceable. It cannot be imagined how this was possible when according to the complainants, the incident took place in broad daylight, the whole village was attacked & some of the attackers were known to the villagers & the lorries carrying the attackers were waiting on the public road for more than two hours. It is clear from the record that it is not the prosecution that has tried to magnify the offences 'but that the then Police Authorities tried to minimise & hushed up the whole incident, & that they were not interested in bringing the accused to trial. There is absolutely nothing on record to support the contention of the learned Counsel for the accused that the subsequent investigation & the evidence that is produced in the case, is due to the interference of politicians.
44. There is distinct proof that the Police did actually hush up the matter when there was plenty of evidence to show that the matter was serious, guns were fired, serious injuries were inflicted, jewels were forcibly taken away from the persons of terror-striken women, the village was in great panic, hundreds of people from the village ran away, some people were treated in hospital for injuries & there is absolutely no doubt that it was an unprovoked attack, dreadful & serious.
45. In the same connection, the counsel for the applts, argued that the extent of the injuries to witnesses is not serious & they were all simple hurts. I do not agree with him at all. Besides the terrible mental agony to respectable women-folk, the extent of hurts was very serious & many people had to suffer for a number of days as a result of the beatings they received, & the sword & spear injuries inflicted on Ex. p. 8, which was the Station Master's message to his higher authorities & which was sent within a couple of hours of the occurrence, shows that! the injuries inflicted on the Station staff alone were so great that relief was necessary for both the pointsmen. As regards the injuries inflicted in the village, many witnesses have deposed to the seriousness of the injuries they received, particularly, P. Ws. l, 4, 6 & 7. They could not be minor injuries & we see no force in the defence contention that only minor injuries were inflicted by way of chastisement. Besides, the seriousness of the occurrence is not to be judged by the nature of the injuries; but also by the way they were inflicted in utter disregard of the administration & the forces of Law & Order.
46. The learned Counsel for the defence laid great emphasis on the injuries not being treated by doctors. In the first place, in this country there are not enough doctors. Secondly, it is common experience that people hesitate to go out & get treated by outsiders & mostly they get treated by their own relations or friends, especially in cases of riots & when they know that the situation is such that no redress is possible from the authorities concerned. When there is all-round panic there is less chance of any one going to doctors or complaining to the Authorities. Women particulary would hesitate to go & say that they have been molested by strangers.
47. The learned Counsel for the applts. nest argues that the intention of the Razakars was to punish the people who shouted anti-slogans. If the punishment takes the form that it has taken, then it is nonetheless rioting & dacoity. Moreover just because a few people shouted 'Jai, Jai' or ''Mahatma Gandhi ki-jai', the Razakars had no right to go to the Rly. platforms & break open the doors of the Station Master & the Asst. Station Master's quarters & inflict injuries on pointsmen & go into the village, ransack houses & take away property.
48. Further, 'Mahatma Gandhi-ki-jai' could not be consd. to be an antislogan to 'Shab-e. Osman Zindabad' nor could it be consd. to be a provocation. The Police, perhaps under the influence of Razakars tried to justify the action of the Razakars & to put the blame on the people by Saying that they shouted 'Shah-e-Osman Murdabad'. There is nothing on record to show that the people were against the Ruler & certainly it was no occasion for the people, who were engaged in their work on the Station, to shout against the Ruler. It was riot a political meeting. All the prosecution witnesses have stated that no one shouted against; the Ruler, & the only shouting was 'Mahatma Gandhi-ki-jai'. If the shouting was really provocative & it was the cause of the attack, the Asst. Station Master would certainly have given some indication of it in his message, Ex. P-5. The message as it reads shows that the attack was unprovoked. It is clear that the shouting of 'Jai, Jai' was merely an excuse for the Razakars to attack & loot.
49. As far as the evidence goes, there is nothing to show that any anti-slogans were shouted. Even if the people shouted, it was none of the business of these 150 Razakars, who were armed with deadly weapons to go & chastise or punish them & certainly that did not entitle them to fire guns & inflict injuries with swords & spears. To say the least, it was most cowardly. The terrorising of women & taking jewellery from their persona & breaking open boxes and almirahs, etc, leaves no doubt in my mind that robbery & loot was the main object. They did this as Boon as they came. If it was at one place & by one man, it might be consd. an individual act; but in this case, the attackers went in groups & more or less adopted the same technique of first asking if any men were hiding inside & then ransacking the house & taking away jewellery, cash, etc. This shows that this was their preconceived method of attacking & looting a place.
50. The learned Counsel for the applts. argued that the asking by the Razakars whether any man was hiding inside the house, showed that their intention was to catch the men who shouted anti slogans & not to commit robbery. I do not agree with this contention as it might be a method of finding out what opposition could be expected in the house or merely an excuse to go into the houses & commit robbery. These Razakars wanted to give some reason for attacking the houses. The intention of the people is not to be judged by merely what they say but by what they actually do.
51. Their saying to the people 'show us the houses of Congressmen & Sowoars', appears to be a method of getting the sympathy of other classes, or to show that there was a political object for their robbery. This was the way they could justify their criminal deeds, & perhaps to a certain extent satisfy their conscience.
52. The third contention of the learned Counsel for the applts. is that the contemporary documents of investigation support the theory of the defence that the object of the Razakars was merely to teach a lesson to those persons who shouted objectionable anti-slogans & that it was just an ordinary incident. There is enough material on record to come to the conclusion that the contemporary documents are not reliable & that they were prepared to hush up the case & to put the blame on those very people who were looted & injured. I do not agree with the learned defence counsel that the evidence of witnesses is not believable because it is contrary to these documents.
53. The so-called contemporary documents are not to be believed for the following reasons: [Then after stating the reasons hi3 Lordship proceeded:]
54. A lot was said by the learned Counsel for the applts. about the differences in Exs. P. 5 & P. 6. He argued that Ex. P. 6 is an exaggerated version of Ex. P. 5. He argued that Ex. P. 6 was substituted in order to exaggerate the incidents generally & to include the theft of Station Master's ladies' jewels in particular. He argued that the version of Ex. P. 5 is correct & the theft of the jewels of the Station Master's ladies is an invention, as otherwise it would have been mentioned in Ex. P. 5. There is not much force in this argument as the Asst. Station Master might not have-known of the theft of jewels belonging to the Station Master's family when he sent the message in Ex. P. 5.
55. In this connection it is to be noted that in the Station Master's house there were only three ladies & they naturally would have hidden themselves till the Razakars went away & till the Station Master came to the house. Gradually they would be in a position to put the whole-picture, before the Station Master. It is not denied that these ladies & the Station Master himself reported the thefts to the then Police within 2 hours of the occurrence. They had no reason to make a false allegation. Moreover, a false allegation against the Razakars, who were all powerful, was not free from risk in those days. They could not have imagined that there would be a, Police Action & they would be free to make any allegations against the Razakars. Exhibit D-18 was prepared on the same day & fully supports the story of these thefts.
56. Perhaps the Station Master was wrong in substituting Ex. P. 6 for P. 5, but he has stated on oath that ha did it under the orders of the Sub-Inspector. The Station Master might have seen the reasonableness in Sub-Inspector's order to substitute 'men' (or 'Muslims' as the Asst. Station Master could not have known that members of other communities were not among the attackers. Similarly, the theft of the jewels of the Station Master's ladies was probably added because it was known to the Station Master by this time & was not known to the Asst. Station Master when he sent Ex. P. 5. The Station Master was not asked why these additions about the jewels of the Station Master's ladies were made. If he was asked, he would have probably explained it satis. factorily. In any case just because of this difference in Exs. p. 5 & P, 6,I am not prepared to hold that the evidence on oath of the Station Master, his wife & his two daughters is not to be believed.
57. In my opinion the defence exhibits do not give the fall & true picture of the occurrence & there is no reason to doubt the story given on oath before the Tribunal.
58. Regarding the fourth argument of the learned Counsel for the defence that if the dacoity was the common object, many more houses would have been looted & considerable amount of property taken, & that the very small amount of property taken shows that they were acts of individuals & not committed in pursuance of a common object. I am of the opinion that in such matters there cannot be any hard & fast rule as to how much a party can loot within a prescribed period. That depends upon several considerations, such as the extent of knowledge of the attackers regarding places where valuable loot was to be found; bow the different places were guarded; & which direction the different groups of attackers went & what they saw. There is nothing on record to show that there were other valuable properties & that the attackers did not take it knowing them to be there. As it is, the extent of property looted was not inconsiderable & there may be some others who may not have even complained of their loss having regard to the then situation. It was further argued that though the Razakars are supposed to have asked the witnesses to show the houses of the Congressmen & rich people, the houses looted were neither the houses of the Congressmen nor of the rich. There is nothing on record to sustain this argument except that one or two witnesses have stated that some rich people stayed in other parts of the village. Under these circumstances, this argument of the applts. does not help them.
59. Regarding the fifth argument of the applts. that the thefts are false, exaggerated & not proved I shall deal-individually with the important incidents. [Then after dealing with these oases and holding the thefts to be proved, his Lordship proceeded:]
59A These were the main incidents of thefts which were particularly argued before us. There are several other incidents dealt with by the Tribunal & I see no reason to differ from the conclusions arrived at by the Tribunal.
60. Regarding the burning of the shirts also, I agree with the conclusion arrived at by the Tribunal. The learned Counsel for the defence argued that there was no object of burning of the shirts, when there was plenty of other evidence still available. In such matters, it is difficult to say what was passing in the mind of A-l when he ordered the burning of the shirts. No doubt the wounds were the proof of the attack; but they would heal up. Those blood-stained clothes will be important proof and will have an appeal of their own & in any case it is not for the Ob. to try & fathom the motive which impelled A-l to order the burning of the shirts. But the fact is proved not by one, but by a number of witnesses & there is no reason whatsoever for the Police or the witnesses to invent this story.
61. Regarding the last argument that the identification of the accused is not reliable, I shall deal with the case of the each accused separately. [After dealing with the case of each accused his Lordship came to the conclusion that identity of each accused was satisfactorily established,]
62. Having consd. the main contentions of the learned Counsel for the applts. as aforesaid, I see no reason to differ from the judgment of the Tribunal.
63. There is, however, one point in the judgment of the Tribunal which needs correction & that is about the Tribunal convicting all the accused both under Sections 123 & 124. It is admitted by the learned Advocate-General that when a person is convicted Under Section 124, Hyderabad Penal Code, he cannot be convicted on the same facts Under Section 123 & that the conviction & sentence of 2 years' E. I. awarded by the Tribunal to all the accused cannot be upheld & as such the conviction & sentence Under Section 123, Hyderabad Penal Code, is set aside.
64. On a persual of the entire record, there can be no doubt that accused 1, Kasim Razvi, as the leader of the Razakars, led a party which included the other applts. for the purposes of plundering, looting & terrorising the peaceful citizens of the State in the days prior to Police Action, In these circumstances I cannot agree with the learned Counsel for the defence that the punishments in the case are too severe. Taking into consideration the violence & acts of terrorism involved in the commission of the offences committed by the accused, the sentences passed by the Tribunal, if anything, are lenient & there can be no further reduction.
65. In the result, the appeals of all the accused are partly allowed to the extent of the conviction & sentence of 2 years' E. I. Under Section 123, Hyderabad Penal Code, being set aside, The rest of the convictions & sentences passed by the Tribunal are upheld & the sentences will run concurrently. This judgment shall govern all the five appeals.