1. This is a Reference made by the Assistant Sessions Judge of Dacca under Section 307, Criminal P.C. recommending that the unanimous verdict of the jury convicting the accused under Sections 147 and 325/149, Indian Penal Code, be set aside.
2. The accused persons are six in number, Yakub, Sahadat, Bihal, Niaz Ahmed, Ali Ahmed and Mahamed. Yakub is brother-in-law of Bihal (the two being the husbands of two sisters). Sahadat and Mahamed are sons of Yakub Niaz Ahmed and All Ahmed are sons of Bihal.
3. The prosecution case shortly stated was this: In village Shyampur there is a Namasudra basti populated mostly by Nawasudras. In this village there is the homestead in connexion with which the present occurrence took place. It lies on the north of a small khal, and also on the west of it with a sugarcane field lying between. Just to the north of it is the bari of one Raj Mohan Mistry who is the person who lost his life in this occurrence. This homestead together with the sugarcane field belonged to two brothers Harilal and Akshoy in equal shares. In or about April 1924 Harilal sold his undivided 8 annas share of the homestead to the accused Yakub and removed to his father-in-law's house. Akshoy died sometime ago, and his son Dharani in April or May 1924 mortgaged his undivided 8 annas share with possession to the wife of one Jumair. Rajendra, the sister's son of Harilal and Akshoy, purchased the right, title and interest of the mortgagee and then sold it to one Hafizuddi, son-in-law of the accused Yakub. The case for the prosecution is that Harilal on selling his share removed his huts leaving only some materials of one hut on the land. It is also their case that Rajendra sold one of his two huts to a man named Abin and removed the other. Rajendra's brother Akhil had also two huts in the homestead--a south bhiti hut and a cook-shed and these two used to be occupied by Rajendra, his second wife Radharani, his son Satish by his first wife, Akhil's son Lakhi and some others. These two huts also, the prosecution say, were sold by Rajendra to Hafizuddi but the family continued to live there as before with the permission of Yakub and Hafizuddi, The prosecution case is that the accused persons came to the bari on the morning of the 23rd September 1921 variously armed in order to turn out the inmates by force, and when there was resistance the occurrence took place resulting in some of them being injured and in the death of Raj Mohan Mistry who had come to interpose.
4. The defence case on the other hand was that the accused were peacefully in occupation of the bari since the purchases but the Namasudras did not like their presence in the midst of their basti, that formerly Yakub alone lived there occasionally but from 15 days before the occurrence Yakub came to live there with his wife, two sons sister-in-law (Bihal's wife) and, her son, but the Namasudras resented their occupation of the bari, and on the day of occurrence they came in a body, forcibly broke down the tin hut of Yakub which he had erected there soon after the purchases, removed the tins and assaulted the inmates.
5. The jury unanimously found the accused guilty of the offences under Sections 147 and 325/149, Indian Penal Code, the common object of the unlawful assembly as set out in the charges being to take forcible possession of the bari. They found, as they stated in answer to a question put to them by the Judge, that Rajendra was in possession of the disputed house on the day of the occurrence and that the accused persons came to drive him and his family away forcibly from the house. Great weight undoubtedly attaches to the unanimous opinion of the jury on questions which are purely questions of fact. It has therefore to be seen whether there is any substantial basis for the contrary opinion expressed by the learned Judge in his letter of Reference.
6. The question of possession of the two huts, namely, the southern bhiti hut and the kitchen, is the principal question to be determined in the case. The case was started on a petition of complaint filed by a neighbour Chandra Mohan who alleged that he came upon the scene on hearing the golmal and was struck with a juti which pierced his knee and remained sticking to it. In this petition as also in the examination of the complainant on oath the fact of Yakub's purchase of only the undivided 8, annas share of Harilal is mentioned but not the purchase of the mortgagee's right with possession in respect of the other 8 annas share of Dharani. The latter sale was admitted by Rajendra in his evidence in Court. Once these two transactions are proved the probability becomes overwhelming that Yakub should take possession of the homestead instead of allowing Rajendra to occupy it as if the transactions had not taken place. Then the presence of the materials of a demolished hut with the tins or thatches of the roof missing as deposed to by the Sub-Inspector, P.W. 14, is a circumstance which has to be explained by the prosecution. They say that Rajendra left the materials on the land when he removed to his father-in-law's house after the sale. This is some what strange but not altogether improbable. The real difficulty is created by the admission made by P.W. 3, Radharani, the second wife of Rajendra, about an incident which has been referred to in the case as the fowl incident. She states that sometime in Baisakh last Bihal's fowl came to Rajendra's hut and was killed by the latter's dog. She explains the incident by saying that the fowl came from Bihal's house and not from the accused Yakub's hut. With regard to this incident a complaint was lodged by Nitai, a brother of Rajendra, on the 25th April 1924. Rajendra and the other prosecution witnesses deny knowledge of this complaint and offer no explanation as to the incident. This complaint, however, was admitted without objection from the side of the prosecution. In it there is a clear statement of the accused Yakub having erected a hut in the homestead and living there with fowls and rearing them. This statement no doubt is not substantive evidence as to the truth of the facts stated, but the fact that such a statement was made requires explanation and it has not been explained. In the absence of such explanation the defence version of the possession of the homestead as given in Yakub's petition of complaint and in his examination on that complaint which was also filed on the same day and almost simultaneously with Chandra Mohan's complaint, seems to be acceptable.
7. Then as to the occurrence, there are features which are exceedingly suspicious. In the first place if Yakub was bent upon turning out Rajendra and his family by force from a bari which was surrounded on all sides by houses of Namasudras and which was situated in the very heart of a Namasudra basti, it is hardly likely that he would come there accompanied by his brother-in-law and their four sons and no others. Nextly, there is absolutely no evidence that Rajendra and his family were ever asks to vacate the premises prior to the occurrence, or that there was any quarrel or misunderstanding over the matter. Rajendra's evidence is that Yakub was generous enough to give him and his family permission to live on the premises till the rains were over. He states that several months before the occurrence there was a friendly conversation between him and Yakub and he had promised to vacate. He states that after this conversation, Yakub never asked him again, though in the Court of Sessions for the first time he introduced a story of a demand 3 or 4 days before the occurrence, a story which is not supported by any of the other witnesses and is obviously untrue.
8. As regards the occurrence itself, apart from minor contradictions there are serious contradictions on broad points. Chandra Mohan (P.W. 1) states that when he came up he found Yakub pulling Radharani, that Yakub said:
Your husband has sold the hut to me, you go away from this house: Radharani said nothing.
9. That he interceded, and on that Yakub threw a juti at him, that thereafter Sahadat struck him with a barga. He states that Raj Mohan came when he had been struck and Raj Mohan was beaten after he had fallen down and that after sometime Rajendra came. In his examination on the complaint which he had filed he stated that Yakub threw a juti on Rajendra and that juti pierced his knee. This itself is a material variation. In cross-examination he admitted that other persons, viz., Raimohan Ram, Chandra and Raj Mohan came to the house before he was beaten. Rajendra. P.W. 2, supports the version given by Chandra Mohan in his examination-in-chief and states that when he came he found Chandra Mohan lying with a juti stuck into his knee and also Raj Mohan lying unconscious. Two of the accused were still in the house, four had left and were in the khal in knee-deep water. He states that Niaz Ahmed and Sahadat beat him, the former with the handle of a broken baita and the latter with a barga. Radharani, P.W. 3, states that after Chandra Mohan was beaten Raj Mohan came up and interceded and on that Yakub struck him on the head with the blunt side of a dao, and then Ali Ahmed, struck him with a lathi and Sahadat with a barga, She then states that her husband Rajendra came and he was beaten by three of the accused, namely, Niaz Ahmed, Ali Ahmed and Mahamed. P.W. 4 Tarini gives a version which is wholly different. She states that Sahadat was pulling Radharani, that after Chandra Mohan fell on the ground, Raj Mohan went to the house with a broken bamboo rua in his hand to beat the accused saying 'What a terrible oppression.' She states that Raj Mohan beat the accused and the rua was broken and Yakub struck him on the head and also three times after he had fallen down. She states in cross-examination that Rajendra when he came beat the six accused, and that he beat them with lathis which he snatched away from the hands of the accused. P.W. 5 Rajbidya, the sister of the deceased Raj Mohan, states in cross-examination that Chandra Mohan came after Raj Mohan had been beaten and that Rajendra beat the accused with a small something which was in the yard. P.W. 6 Ram Chandra, who is said by Chandra Mohan to have been in the house when he was being beaten, states that when he came he found Chandra Mohan lying and Raj Mohan being beaten. P.W. 7 Rasharaj states that he and Rajendra came simultaneously and yet he is able to speak to the assault on Raj Mohan which according to Rajendra took place before his arrival. P.W. 8 Raimohan speaks to the fact that Rajendra was assaulted by three of the accused which is in conflict with what Rajendra states. These are contradictions which, in my opinion, show that the witnesses are not speaking the facts which they had actually seen but were repeating a story, the consistency of which they were unable to maintain in their evidence. To add to this is the fact that there is no explanation of the injuries on the females of the accused's family which are spoken to by the doctor, and the prosecution witnesses ignore their presence at the occurrence altogether.
10. In my judgment the whole case is, to say the least a suspicious one, The real facts in connexion with the occurrence and the circumstances under which it took place have not been disclosed by the prosecution. It must also be said that the case which the defence put forward is also not true in its entirety. To convict the accused under such circumstances is likely to cause a miscarriage of justice and I agree with the learned Judge in holding that the accused persons are at least entitled to the benefit of the doubt.
11. I would therefore accept the Reference set aside the verdict of the jury and order that the accused be acquitted.
12. I agree.