Ram Labhaya, J.C.
1. August 1947 was the month of disturbances in the Punjab and Delhi. These had their repercussions in Ajmer City which found ita peace disturbed on 27th August 1947. Muslima hooligans collected in groups. They were armed with sticks, spears and other weapons of attack. They were shouting slogans inciting Muslims to resort to violence. It was in these circumstances that Mangal Earn Head Gonstable of the police started from the Uari Gate and proceeded towards Diggi Square. It was about 6-80 or 7 p. m. then Sugan Singh accompanied him and accord-ing to his version given at the trial, 2 persons Deo Dutt and Jyoti Prasad met him on the way. They were very much frightened. He asked them to accompany him. Proceeding along, be came across two groups of Muslims and claimed that he dispersed them after conveying to them the information that there was no quarrel between the communities. According to him Deo Dutt was a few paces ahead of him and Jyoti Prasad and Sugan Singh were behind him. After crossing the Diggi Gate he saw another group of Muslims including Asnad appellant who had a palta and Anwar alias Anni with a big knife. Other Muslims had sticks. Deo Dutt shouted that the man with the palta had committed murder. On this Mangal Earn rushed and snatched the palta from Asnad who on interroga. tion ran away and was lost in the crowd of Muslims which had taken to flight. Khaju Gujar (deceased) was seen lying on the ground. The blade of the palta bad blood stains. Mangal Earn asked Sugan Singh Gonstable to take Deo Dutt and Jyoti Prasad to the Ghowki along with the palta. He himself took the injured person to the hospital in a police truck which reached there just at that moment. On his way he met the Deputy Superintendent of Police and according to his directions the injured man was first taken to the Kotwali and then to the hospital. From the Kotwali he himself proceeded to the Ghowki and sent the injured man to the hospital with Madhe Singh. On coming back to his post he first recorded the arrival of Sugan Singh Const-able. The entry has been marked P-25. All that is Btated in this entry is that Sugan Singh Gonstable has come back and states that one stick with an iron spear on which there was some blood was taken by Mangal Bam from Asnad and then delivered to him. Mangal Earn took the wounded person to the Kotwali. The spear would be sent to the Kotwali the next morning. This spear was described as palta by the prose-oution witnesses. After thiB he made another entry showing his own arrival. This is marked p-26. The version that it contains is as follows: Mangal Earn heard the noise of an uproar from the direction of the Usri Gate Market. He saw some persona moving about. They had sticks with them. He and Sugan Singh Gonstable be to proceeded in the direction of the Diggi Square. Three persona were seen coming fast with the sticks towards the square. He explained the real position to them that there was no communal trouble at all. He then reached the main gate and found Asnad betal-seller with two or threa persons. Asnad had a wooden stick with a flat iron blade fixed on to it. Behind him at a distance of one or two paces Khajoo Gujar was lying unconscious. He took the spear (palta) from the hands of Asnad and started interrogating. It was about the man who was lying there. Asnad did not stop to answer and made himself scarce in the crowd that was passing the locality at that moment. Mangal Earn did not try to pursue as he felt that it was necessary to take the wounded person to Kofcwali first. this was the first account of the occurrence given by Mangal Earn, the principal witness in the case. It wa3 reduced to writing at 8-20 in the daily diary of the Usri Gate Police Station.
2. A case of murder was registered at 2 a.m. on the 28th when Madbe Singh who had taken the injured person to the hospital brought back the information that the wounded Gujar had died in the hospital. This report was marked p. 16 and according to this Mangal Bam had brought the wounded Gujar whom Mohammedans had caused injuries with spears and the man had died in the hospital. It was said in the report that people said that Muslims had caused the injuries with epoara.
3. As a result of the investigation by the-police, 4 persons including Asnad were challan. ed.They were all committed to the Court of Session for standing their trial under Section 302/149 and s, 148, Penal Code. The learned Sessions Judge-found that no case had been made out against 3 accused. He convicted Asnad under Section 302, Penal Code, read with Section 149, Penal Code and also under Section 118, Penal Code, and sentenced him to transportation for life under Section 302, Penal Code, read with Section 149, Penal Code and to 8 years rigorous imprisonment under section 148, Penal Code. be to the sentences were ordered to run concur-rently. Asnad has appealed from the order.
4. The prosecution case as placed before the Court at the trial has been stated above. In support of the prosecution version as given by Mangal Earn in the Court of Session, Gheesa brother of Khajoo deceased, Deo Dutfc and Jyoti Prasad and one Shiv Charan were examined. The learned Sessions Judge has found that Shiv Gharan and Gheesa could not have witnessed the occurrence. He further found that Deo Dutfc and Jyoti Prasad could not have been present at; the time when palta was recovered from Asnad. He did not rely on their statement and in consequence acquitted the 3 accused in the case.
5. Sugan Singh Constable identified Asnad' at the identification parade. The learned Sessions Judge did not attach any value to the idenification parade on the ground that Asnad was having a shop near the Diggi crossing and the constable must have had several opportunities of seeing him before the occurrence.
6. In finding Asnad guilty he relied on the following facts and circumstances : (l) That a blood-stained palta was snatched from Asnad immediately after the occurrence by Mangal Earn Head OonBtable. (2) Khajoo Gujar (deceased) was lying on the ground within 2 paces where Asnad was. (8) On being questioned Asnad ran away and made himself scarce.
7. His finding against Asnad was that he was a member of the unlawful assembly whose common object was to murder Khajoo Gujar or any other Hindu who came their way,that Kha-joo was murdered by the members of the unlawful assembly, and that Asnad was guilty of murder constructively by virtue of his being a member of the unlawful assembly. He was also found guilty of an offence under Section 148, Penal Code, as stated above. The learned Counsel for the appellant has argued that palta was not recovered from Aenad and as Mangal Ram's statement was disbelieved on other points it cannot be accepted as regards the recovery of palta from Asnad. He has pointed out that P16, the first information report, by which the case was registered and which was recorded at about 2 a. m. does not mention the name of Asnad. It does not mention the recovery of palta either. On the other hand it contains the statement that people said that Muslims had injured the deceased with spears. He argues that in view of this report Mangal Eam's version'that he recovered the palta from Asnad when he was standing close to the injured person cannot be relied on. I have given my careful consideration to this argument and I think this contention should cot prevail. The finding arrived at by the learned Sessions Judge rests on Ex. P 26, a statement which was entered in the daily dairy at 8 p. m. on 27th. In this statement it is clearly brought out that Asnad had the palta in his hand. He was at that time afc a distance of 2 paces from where the Gujar was lying. He on being questioned ran away. An earlier statement P-25 mentions that palta had blood on it. The omission of these details in P-16, therefore, is not fatal to the prosecution case. It cannot be said that the allegation that palta was recovered from Asnad in the circumstances described in P-26 was an after thought. In fact these statements were made at the earliest opportunity after the recovery of palta and I entirely agree with the learned Sessions Judge to this extent, that the palta was recovered from Asnad in the circumstances described in Ex. p. 26. The statement of Mangal Earn cannot therefore be discarded on this point. It haa circumstantial support for it. On arrival at the post he men-tioned the circumstances under which its recovery had been effected, It follows that the finding of fact arrived at by the learned Sessions Judge that Asnad was seen standing close to the deceased person with a blood-stained palta is correct. The Chemical Examiner testifies that there was blood on it, though, on account of its disintegration, the Imperial Serologist could not say if the blood was human. We are thus left with the recovery of the palta from the accused. He was standing close to the injured person who subsequently died. On being questioned he disappeared in a large crowd that was passing the scene of the occurrence. These circumstances coupled with the medical evidence show that Asnad participated in the assault on the deceased. According to the statement of the doctor there were four injuries on different parts of the head of the deceased. All these were incised wounds. He was of the opinion that the palta in Court could have caused some injuries on the head. In cross-examination he went a little further and deposed that the incised wounds on the head were likely to have been caused by the front edge of the palta (Art. P). There is thus no escape from the conclusion that some at least of the injuries on the head were caused by the palta which was recovered from Asnad immediately after the occurrence.
8. We have now to determine the nature of the offence. It has been vigorously argued on behalf of the appellant that no case of constructive liability has been made out. It has not been-proved that there was an unlawful assembly with a common illegal object of which the appellant was a member. In these circumstances Section 149 could not apply. I think the learned Counsel is on surer ground here. We have only the state, ment of Mangal Kam to rely on. He arrived immediately after the occurrence. He did not see how many persons participated in the assault. We have no evidence bearing on the circumstances under which the assault was committed. Exhibit p. 26, the first report given by Mangal Earn, shows that there were two or three persons with Asnad. There could be no unlawful assembly in these circumstances. The part played by two or three persons is also not known. There is no basis for saying that five or more persons came together with any common intention. The fact that there were different groups of persons moving about Shouting slogans which amounted to incitement to violence would not be enough for bringing the case of Asnad under Sections 143 and 149, Penal Code. All the different groups cannot be said to have one common intention or purpose. There were several other inoidents in the looality that day. The learned Public Prosecutor has nofc denied that they were all dealt with separately. In these circumstances the prosecution cannot be considered to have succeeded in proving that 'there was an unlawful assembly of five or more persons of which Asnad was a member. his conviction under Section 148, Penal Code, cannot stand. Similarly he cannot be convicted under Section 149, Penal Code read with 8. 302, Penal Code.
9. I have, however, held that he actually participated in the assault. The medical testimony show that some injuries were caused by the palta which was in his hand, Asnad'a subsequent conduct abo points to the same conclusion. He would, therefore, be at least liable for his own acts. The learned Counsel for the appel. lant contends that the injuries on the head of the deceased were simple and if Asnad is held responsible for any of the injuries on the head he could be convicted only under section 324, Penal Oode. The learned Public Prosecutor urges that the injuries were serious and were sufficient in the ordinary course of nature to cause death. There was haemorrhage in the parietal, temporal and occipital regions and this further led to the breaches of the maningeal arteries. He argues that those injuries could cause death and, there, iore, the conviction for murder even without the application of 8.149 is possible, It is not certain that all these four injuries were caused by the appellant. The doctor in examination in chief stated that some of these injuries could have been caused by the palta. He improved the statement somewhat in cross-examination. We have no direct evidence as to how many injuries were caused by the palta in question. There is mo proof that each injury on the head was sufficient in the ordinary course of nature to cause death. The cause of death has been stated to be the multiple injuries resulting in shock and haemorrhage from the rupture of spleen, the conoussion of the head and the fracture of ribs, etc In these circumstances it would be difficult to say that death had been caused by the act of the appellant or that injuries attributable to him could result in death in the ordinary couree, But it seems to me that as injuries on the head of the deceased were on a very vital pArticle each one of these could prove dangerous to life. The appellant could safely be found responsible for some of these injuries on the head, and it would be safer to convict him under section 326, Penal Code.
10. For reasons given above the conviction of the accused under a. 302/149, Penal Code, is altered to one under Section 326, Penal Code, and his sentence is reduced to seven years rigorous imprisonment The conviction under section 148, Penal Code is quashed. The appeal is accepted to that extent as indicated above.