1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal on behalf of the Provincial Government, and is directed against an order of acquittal made by Mr. B. Mukherji, Additional Sessions Judge of Khulna on 22-12-1945.
2. The occurrence out of which the case has arisen wits a communal riot between the Mussalmans and the Namasudras of the District of Khulna which took place on 26-5-1944. His Lordship narrated the facts of the case and proceeded as follows.
3. 81 persons were committed to stand their trial at the Court of Session; of them 83, were actually tried before Mr, B. Mukherji the Additional Sessions Judge and four assessors. The trial ended in the conviction of 9 only of the accused of an offence Under Section 148, Penal Code. These 9 appealed to the High Court against their convictions and sentences; two were successful while the convictions of the remaining 7 were maintained.
4. The Superintendent and Remembrancer of Legal Affairs on behalf of the Province of Bengal applied Under Section 417, Criminal P.C. for the admission of an appeal against the acquittal of 27 of the accused by the Additional Sessions Judge, but the appeal was admitted only as against 14 of the accused. And of these 14, three have not been traced.
5. That there actually was a riot between the Mussalmans and Namasudras of Sanapur Char Basuria on 26-5-1944 admits of no dispute, and has not been challenged before us. It remains for us to see whether the 11 accused whose cases are now under consideration before us took part in that riot or not. They were tried and acquitted; we have to see whether the reasons for their acquittal are good and sound, or whether there has been a failure of justice.
6. The first accused is Amari Charan Tikadar, a cultivator, 25/30 years of age, of Char Basuria. In dealing with his case the learned Additional Sassions Judge has commented on the fact that he was only identified in the Sessions Court by three witnesses, P.Ws. 6, 13 and 24 and of them P. Ws 6 and 24 are not 'Charge-sheet witnesses.' The learned Additional Sessions Judge has throughout the case declined to place any reliance on the evidence of any witness whose name is not to be found in the charge-sheet. This is the real grievance of the Crown-that the evidence of all these witnesses has been discarded for no other reason. If a witness was actually examined by the police during the investigation of the case, we see no reason why his evidence should be rejected just because his name does not appear in the charge-sheet. On the other hand, if a witness did not appear before the police at all and there is no doubt that some of the witnesses did not do so for the obvious reason that they were wanted in the counter cases then the Judge was quite right in refusing to place any reliance on their testimony. The prosecution was evidently hampered in this case in that the investigation officer, Kalidas Dutt, went down with acute appendicitis when the case was being tried and was unable to come to Court. The conduct of the prosecution bears obvious traces of his inability to attend to the case himself. Of the three witnesses whose evidence the learned Additional Sessions Judge has commented on, P.W. 6 Abdul Karim Molla, and P.W. 24 Abdul irik Shaikh, both admit that they never gave any information to the Police. Abdul Karim lays that he was afraid to go to them; Abdul Barik says that he never informed them about the murder of Wahed. P.W. 13 does identify Amari. Tikadar in the Court of Session, and does so by name, but in the committing Court he said that he could not name any of the accused. It is true that he may have found out he name in the interval. There were 8 witnesses who identified Amari Tikadar as a rioter in the Lower Court. The learned Additional Sessions Judge declined to rely on their evidence of identification as they did not maintain it in the Sessions Court. That, by itself, would not in opinion be a valid ground for its rejection n a case of this nature, provided the evidence were itself satisfactory. But in this case all is not well with that evidence. The evidence of P.W. 2, for example, Abdul Malek Mulla shows that in the Committing Court the accused were named by the lawyer examining him, and he said that he saw them. This can hardly be considered a satisfactory identification, P.W. 3 Masud Sheikh identified him by sight as being amongst the rioters in the Committing Court. The evidence of P.W. 23 Mohiuddin Sardar, was tendered by the prosecution; in the Committing Court ho bad identified Amari Tikadar as a rioter by name. P.W. 24 identified him by name both in the Committing Court and in the Sessions Court. P.W. 32, Manik Molla named Amari Tikadar in the committing Court, but failed to do so before the Sessions Court. P.W. 34 named him before both Courts. He is Jahural Hoquu Molla. P.W. 85, Munsur Fakir identified him by name in the Sessions Court. Although the Additional Sessions Judge says that P.W. 49 identified him in the committing Court, his name is not to be found amongst those given by this witness. Considering these facts and circumstances we are not prepared to hold that, on this evidence, the acquittal of this accused was unjustified. The rest of the judgment is based purely on evidence and hence omitted.-Ed.].