1. Hassenulla Sheikh has been sentenced to death by the first Additional Sessions Judge of Mymensingh and the proceedings have been submitted to this Court under Section 374 of the Code of Criminal Procedure. Hassenulla Sheikh has also appealed against his conviction and so have two other accused, Rezatulla Sheikh and Tamez Sheikh who were convicted at the same trial. Hassenulla presented a separate jail appeal, and also a joint appeal on behalf of the three accused was filed by their pleader.
2. In addition to these three appellants, one Farid Sheikh was also tried with them. Hassenulla Sheikh was charged on two separate counts with having committed murder of two persons, Moulavi Mahjazal Huq and Kaimulla. The other three-accused were charged on two separate counts with having, in furtherance of the common intention of all, committed murder of these two persons, offences punishable under Section 302, read with Section 34 of the Indian Penal Code. Rezatulla was further charged with having voluntarily caused hurt to Kaimulla with a cutting instrument. The jury unanimously found farid Sheikh not guilty giving him, as they said, the benefit of the doubt. By a majority of four to one they found the other three accused guilty on all the charges framed against them. The Sessions. Judge sentenced Hassenulla Sheikh to death and the other accused to transportation for life.
3. The facts of the case according to the prosecution evidence are as follows : The murdered man Moulavi Mahjazal Huq was a Zemindar of Chikajani in the Jamalpur Sub-Division of the Mymensingh District. The three appellants and the father of Farid were his tenants and had been refractory since the year 1327 B.S. supporting the claim of the Moulavi's son-in-law Abu Mia that the land held by them had been given to Abu Mia's wife. A criminal case had been instituted by Mohammed Nuruddin (P.W. 28), the Moulavi's gomostha, on the allegation that execution of a decree against Tamez had been resisted. Tamez, Farid and others were accused in that case. The case was fixed for hearing at Jamalpur on the 4th December last and the Moulavi and Nuruddin were there on that date. Nuruddin returned home that night and was told to send some one to meet the Moulavi the following night. On the night of the 5th December, the Moulavi arrived at Prodyotnagar Railway Station at about 10 p.m. and was met by two of his servants Kaimulla, a barkandaz, and Imam Sheikh (P.W. 6). They went towards Chikajani going through some fields till they reached a Local Board Road running North and South parallel to the railway line. It was the night after the full moon. Kaimulla went first carrying the Moulavi's bundle of clothes and Imam Shoikh followed behind the Moulavi carryin some radishes, plantains and a water pot. When they had gone about three quarters of a mile from the railway station they were attacked by the four accused persons. Hassenulla stabbed the Moulavi on the back with a knife. Kaimulla then soiled Hassenulla, but was attacked by Kozatulla who out him with a banki dao on the head. Kaimulla in consequence let Hassonulla go and seized Rezatulla. Hassenulla then stabbed Kaimulla on the back. After that the accused ran away. Imam who had not been touched ran to the Moulavi's bari and returned with Azizul Huq (P.W. 21), a son of the Moulavi and Bhadu and O. Miz (P.Ws. 22 and 23), two servants of the Moulavi's younger brother Fazlal Huq (P.W. 30), Before Imam's return with these witnesses Azijar Eahaman, Amizuddin and Joynulla (P.Ws. 13, 12 and 19) who were also returning from the railway station came to the place of occurrence. They found the Moulavi being supported by Kaimulla and both were bleeding. News was sent to Anizul'a father Golam Wahed (P.W. 20) and when he arrived on the scene the Moulavi was dead. Golam Wahed sent for palki bearers, and the dead and the wounded man were carried to the Dewanganj Police Station. There the Sub-Inspector Jagatbandhu Biswas (P.W. 31) commenced taking a first information from Kaimulla. As Kaimulla commenced vomitting, the Sub-Assistant Surgeon of the neighbouring Dispensary Monlavi Wahod Ali Khan (P.W. 3) took him there for treatment. The Sub-Assistant Surgeon gave Kaimulla some medicine and bandaged his wound. He then sent for the Sub-Registrar Sudhansu Bhusan Roy (P.W. 4) to take his dying declaration. After this had been recorded Kaimulla was taken back to the thana where the Sub-Inspoctor finished recording his first information. It was then about 1 A.M. and Kaimulla and the dead body were sent to Jamalpur. Kaimulla was admitted to hospital at 7 A.M. on the 6th December the Assistant Surgeon in charge, Dr. Jamini Kanta Sen Gupta (P.W. 2) considered his condition critical, so sent for the Magistrate to record his dying declaration. The Deputy Magistrate Babu Dinendra Nath Saha (P.W. l) reached the hospital at 8 A.M. and recorded Kaimulla's statement. Kaimulla died the next day at 1:30 P.M. When his body was removed from the bed, a bundle of notes of the total value of Rs. 205 was found. The accused were all arrested on the 6th December.
4. On behalf of the Appellants it is contended that the trial was illegal on the following grounds. The accused were committed for trial on the counts of the charge relating to the murder of Moulavi Mahjazal Huq and the hurt caused to Kaimulla by Rezatulla. The Sessions Judge added the counts relating to the murder of Kaimulla. It is urged that in so doing he acted in excess of his powers under Sections 226 and 227 of the Code. In support of this contention the cases of Birendra Lai Bahaduri v. Emperor (1904) 32 Cal. 22, Queen-Empress v. Appa Subhana Mendre (1884) Bom. 200 and Queen-Empress v. Kharga (1886) 8 All. 665 are cited. The facts of the Bombay and Allahabad cases more closely resemble the facts of the present case. Though in both these cases the conviction was upheld, this was done on the ground that though there was an irregularity, it was cured by the provisions of Section 537, Cr.P.C., a ground of doubtful validity since the decision of the Judicial Committee in Subramnia Ayyar v. Emperor (1901) 25 Mad. 61 (P.C.). But these decisions have been rendered obsolete by the definition of 'charge' in Section 4(1)(c) which was inserted for the first time in the Code of Criminal Procedure of 1898. This alteration of the Code is in accord with the dissenting judgment of Scott, J., in the Bombay case cited above. The decision of the majority in that case was also expressly dissented from by Straight, J., in the case of Queen-Empress v. Gordon (1887) 9 All. 525. There can be no doubt that these dissentient judgments are in accordance with the law as it now stands, and that under proper circumstances a Sessions Judge has power to add a charge distinct from the charges framed by the committing Magistrate. In the Calcutta case cited - Birendra Lal Bahaduri v. Emperor (1904) 9 All. 525 the facts are clearly distinguishable from those of the present case. The principle on which that case was decided is stated at the conclusion of the judgment in the following terms : 'The Sessions Court is not a Court of Original Jurisdiction and though vested with large powers for amending and adding to charges, can only do so with reference to the immediate subject of the prosecution and committal sand not with regard to matter not covered by the indictment.' In the present case the murder of Kaimulla was an immediate subject of prosecution. In the order of commitment the Magistrate states : 'There is ample evidence to show that Hassenulla committed murder by intentionally causing the death of the Moulavi and his servant Kaimulla and that Tamez, Farid and Rezatulla in furtherance of the common intention with Hassenulla committed murder by intentionally causing the death of the Moulavi and his servant Kaimulla.
5. Under these circumstances and for the reasons given, we hold that the Sessions Judge acted properly and within his powers in adding the charges relating to the murder of Kaimulla.
6. If the prosecution evidence be believed, there can be no doubt as to the guilt of the three accused who have been convicted. In their statements before the committing Magistrate and the Sessions Judge the accused made no defence beyond a bare denial of their guilt. At the trial two lines of defence were put forward. It was suggested that Kaimulla himself might have killed the Moulavi and been fatally wounded by him, and also that some persons unknown attacked both the deceased, and Kaimulla was induced by the Moulavi's brother Fazlal Huq to implicate the accused. Before us the defence urged is that the assailants were not really recognised, and the present accused have been implicated because they were suspected on account of their quarrel with the Moulavi. The evidence as to the identity of the accused consists of the statements of Kaimulla; the direct evidence of Imam and the circumstantial evidence of witnesses who saw the accused going to or from the place of occurrence.
7. It has been strongly contended that the statement made by Kaimulla at the thana, by intrinsic evidence, strongly supports the case for the defence that he did not recognise his assailant. This first information was partly recorded before and partly after Kaimulla was taken to the dispensary. Though no evidence was elicited as to how much of this statement was first recorded it is suggested that the interruption took place before he had given the names of the assailants, and that he was tutored at the dispensary to give the names of the accused. This suggestion is based on the fact that in the first information the occurrence is first described without naming the assailants, 'men came out...one of them stabbed the Moulavi Shahib, I and Imam held him, etc.' This is followed by the statement, 'I recognised the 4 men as Hassenulla, Rezatulla, Farid and Tamez,' and a repetition of the manner in which the wounds were inflicted giving the names of Hassenulla and Rezatulla.
8. We are unable to accept this suggestion. From the evidence of the Sub-Assistant Surgeon and the Sub-Registrar as to what happened at the dispensary, it appears highly improbable that Kaimulla should then have been tutored. It is not improbable that Kaimulla should have commenced his description of the occurrence by first speaking of the assailants without naming them though he knew their names. We find Imam telling his story in a somewhat similar manner both before the committing Magistrate and the Sessions Judge. On both occasions before he named any one he deposed that four men rushed out and one struck the Moulavi with a knife. But there is also abundant evidence that before Kaimulla was taken to the thana, both he and Imam named the accused and we see no reason to doubt that they did so.
9. There are some discrepancies in the three recorded statements of Kaimulla and the evidence of Imam. The most important is the omission of Farid's name in the last statement of Kaimulla. This no doubt was the reason why Farid was acquitted. As regards the commencement of the occurrence and the manner and the persons by whom the wounds were inflicted, the stories are consistent in main details without anything to suggest that either of them is telling a concocted story. There was bright moon-light, so the accused could easily be recognised. It is highly improbable that Kaimulla should have accused persons other than those who actually wounded him. The case is weakest against the accused Tamijuddin. The story in Kaimulla's last statement that he raised a lathi to strike Tamez is criticised on the ground that it appears from Imam's evidence that he had Kaimulla's lathi. But from the deposition of the Deputy Magistrate who recorded the statement it appears that what Kaimulla said was that he picked up a lathi and this may have been dropped by Imam who was undoubtedly too frightened to render any assistance. Imam is said to have been called pugla or half-witted, but there is no thing on the record to indicate that this was more than a nickname, and that his intellect was in any way affected.
10. The case for the prosecution as a whole is attacked by a suggestion that the place of occurrence was elsewhere than that alleged. This suggestion is based on two facts. The first is that earth, leaves and grass taken from the alleged place of occurrence were sent to the chemical examiner but no blood was detected in thorn by him. The second is that the Local Board Road was not the most direct or the most usual way for the Moulavi to go home from the railway station. The negative effect of the chemical examiner's report is not sufficient to rebut the strong direct evidence as to the place of occurrence. The witnesses who might have explained why the less direct route was chosen were not questioned on this point. We get it from the Sub-Inspector that there were rumours that people were conspiring to kill the Moulavi, and this may well have been the reason for his preferring to go home by the more public though longer road.
11. The finding of the money on Kaimulla's bed after his death is unexplained. It is certainly significant that the amount agrees very nearly with the sum that was in the Moulavi's possession according to an account found on him. But it is impossible to make any deduction which assists the case either for the prosecution or defence.
12. Having regard to the strength of the case against the appellants on the direct evidence, the circumstantial evidence is of little importance. Though the jury have not thought this evidence sufficient to remove their doubts as to the guilt of Farid, it cannot be altogether rejected: The strongest evidence is that of Amezuddin who says he recognised the four accused when they were running away from the scene of the murder. We see no reason? to doubt the independence of Golam Waned and the other witnesses of his. household, and their evidence is very strong corroboration of the prosecution,; story both as to the place of occurrence and as to the recognition of the assailants by Kaimulla and Imam.
13. Of the other points that have been urged in attacking the case for the prosecution the most important is the denial of Fazlal Huq that he had any ill feeling with his brother the Moulavi at the time of his death. That seems to be false, but we see no reason in consequence to draw an inference that Fazlal Huq has been concocting evidence to implicate the present accused. His explanation of his delay in starting for the scene of occurrence is not unreasonable. We do not think it necessary to refer to discrepancies in the evidence which appear to us of little importance as for instance the number of Kaibartas who came to the scene from the adjoining bustee.
14. On a fall consideration of the whole of the evidence and the able arguments of the-learned Pleader who conducted the, defence, we find ourselves in entire agreement with the learned Sessions Judge and the majority of the jury as to the guilt o the accused who have been convicted.
15. In the case of Hassenulla on the reference under Section 374, it was our duty to satisfy ourselves that the finding of the jury on the facts was right. On a consideration of the evidence for this purpose, we have also come to the conclusion that the appellants Rezatulla and Tamez were rightly convicted. In their case we cannot alter or reverse the verdict of the jury, unless we are of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law laid down by him. We find no misdirection in the charge to the jury either on the law or the; facts which was likely to mislead the jury. The only point of law of any difficulty was the application of Section 34, I.P.C. The jury's attention was drawn to the essential point that it was necessary to find that there was a common intention of all the accused to commit each of the murders, and that each of the murders was committed in, furtherance of that common intention. On the facts, though the learned Sessions Judge expressed his opinion adversely to the accused on several points, reading the charge as a whole it cannot be said that he did so improperly. We see no reason to suppose that the jury did not fully realise that it was their duty to form their -own opinion on the facts.
16. We hold, therefore, that the verdict of the jury as against all three appellants should be upheld. We believe that they deliberately waylaid Moulavi Mahjazal Huq with the intention of killing him. From the nature of the fatal wounds on Moulavi Mahjazal Huq and on Kaimulla Sheikh there can be no doubt that Hassenulla Sheikh killed both these persons intending to do so. For these offences the maximum penalty of the law is not too severe.
17. We accordingly dismiss these appeals and confirm the sentence of death passed on Hassenulla Sheikh.