Emperor vs Sheonath Ram and Another

Narayan, J.—This is a reference for the confirmation of the sentence of death passed on Sheonath Ram, Havildar, and Rambilas Rai, constable, for the murder of one Nageshwar Kalwar. The condemned persona have preferred an appeal, and the appeal and the reference have been heard together.

There is a police outpost in Mahalla Katahri Bagh of the Chapra town. It was established after the last communal disturbances. The appellant 1 Sheonath Earn was the Havildar is charge of the outpost, and appellant 2 Rambilas was a constable posted there. Besides Rambilas Rai, the Havildar had nine other constables, under him and this police outpost had been given ten rifles of 303 bore and 200 rounds of ammunition. There is a Girls'' School close to the outpost, and girls of respectable families were the students of this institution. The mistresses of the school used to pass by a road which is just by the side of the outpost.

On 4-9-1947, the deceased Nageshwar Kalwar and one Babban Prasad appeared before the President of the Town Congress Committee with a petition, which was signed by seven persons, and in this petition it had been alleged that the policemen posted at the outpost had been behaving indecently wife the girls and the mistresses, and that they had threatened those who had protested against their conduct.

On 9-9-1947, these two appellants appeared before the Vice-President of the Thana Congress Committee with Mt. Bhagwania, a woman of ill-repute, and told him that the deceased had asked this woman to complain to the police officers that she had been molested by the Havildar and constables. The same day in the evening the officer-in-charge of the Chapra police station and the Town Inspector of Police Mr. Masih, while they were out to supervise the work of the police outpost, happened to meet the deceased Nageshwar, who complained to them that Bhagwania was staying in a house close to the outpost and that the Havildar and the constable Bambika were on intimate terms with her. The police officers warned Bhagwania and told the policemen that they would be reported against if further complaint againt their character was heard. On 10-9-1947, these appellants arrested Nageshwar and took him to the police station. Bhagwania and Babban Prasad also accompanied them, and it was stated by these policemen before the officer-in-charge that Nageshwar had been seen with five or six others near the outpost at light armed with bhalas and lathis. Nageshwar was questioned by the police Sub-Inspector and gave his statement in writing. The police Sub-Inspector allowed Nageshwar to go away and warned the Havildar and the constables that they would be prosecuted for wrongful confinement if they did any such thing in future.

The occurrence resulting in the death of Nageshwar took place at about 2 P.M. on the same day, namely, 10-9-1947, and the prosecution case is that these two accused shot down Nageshwar. While Nageshwar was at the pan shop of one Hazari Khar, these two appellants came in uniform, each with a rifle in his hand and holding the rifles in firing position. The Havildar exclaimed "shikar agaiya", and Nageshwar, realising that his life was in danger, ran and got into the shop of one Bhola Mistry. The two accused fired at him and he fell down in the varanda of Bhola''s shop, which is just by the side of the road. The two accused then entered the shop and fired again. They then retreated, and one of them shouted "Mar dala." There was a commotion in the Mahalla and all the shops were closed. Babban had heard of the gun-fire and he at once proceeded towards the outpost. But when he came near a mosque he found that the constables were preventing people from proceeding further. He then ran to the police station and informed the officer-in-charge that the constables at the out post had fired guns and that the people of the locality were in a state of panic. The officer-in-charge made a note in the station diary and at once left for the spot with some constables attached to the Railway Protection Force. When he was about 160 yards west of the outpost he noticed four or five constables holding their rifles in firing position. The Inspector of Police, Mr. Masih, having come to know that the policemen at the outpost had opened fire, also left for the outpost, and when be came to a place which was about 60 steps from the outpost, four or five constables attached to the outpost threatened to shoot him and the jamadar if they proceeded further. He shouted to them that he was their Inspector and that they must lay down arms and then state whatever they had to say. But in spite of his directions they did not surrender the arms, nor did they even salute him. These two accused were amongst those four or five constables.

By this time the Superintendent of Police and the District Magistrate had been informed, and they arrived and brought the situation under control. Under the orders of the Sub-divisional Magistrate a Magistrate named Mr. Subarno went to the spot at about 5.30 P.M. on 10-9-1947, for the purpose of holding an inquiry. The Inspector of Police went to the shop of Bhola Mistry and there found the dead body of Nageshwar Kalwar. He held an inquest on the dead body and sent it for post mortem examination. The, post mortem examination was held by the Civil Surgeon of Ghapra at 45-80 P.M. on 10-9-1947. The Civil Surgeon found one "oval gunshot wound situated on the outer Bide of the right side of chest at the middle of the right mid-axillary line" and another "oval gun shot wound situated on the back at the level of the fourth thoracic vertebrae, outside the right of the middle line." On dissection he found the fifth and sixth ribs fractured and blown off at the costochondral junction on the right side causing a gaping wound of the size 3" � 2". He also found the upper part of the right ventricle of the heart lacerated on an area 1frac12;" � 1". The doctor was of the opinion that death was due to the gunshot injuries and that either of the injuries was sufficient to cause the instantaneous death of the injured.

Mr. Subarno examined the witnesses and inspected the place of occurrence. He found blood in large quantities and got the blood stains scraped. Two rifles were produced before him, and the barrels of these two rifles were found by him to be dirty and smoky.

The accused pleaded not guilty, and their defence was that after his release by the Sub-Inspector Negeshwar with ten or twelve others had attacked the magazine, and that fire had been opened against him and the other raiders under the order of the Havildar, and, possibly, he received the bullet injuries during the course of that firing.

The feelings between Nageshwar and the constables were no doubt strained, and in this connection it is necessary for us to examine the evidence of P.W. 3, the President of "the Town Congress Committee, and P.W. 9, the Vice-President of the Town Congress Committee. It appears from the evidence of P.W. 3 that Babban and Nageshwar had appeared before him with the petition (Ex. 1) in which allegations had been made against the policemen posted at the outpost on 4-9-1947. This gentleman had been told that the constables at the outpost were threatening to shoot those persons of the locality who were protesting against their conduct. The evidence of P.W. 9 Ramchandra Prasad Jaiswal, the Vice. President, is to the effect that on 9-9-1947, these two accused had gone to his house with Muaammat Bhagwania, and that the Havildar had told him that Nageshwar Kalwar was tutoring Musammat Bhagwania to tell the police officers that the constables were molesting her. This witness has further stated that he was told by the constables and the Havildar that if Nageshwar would create troubles in their way he would be set right. Here it will be convenient to refer to the evidence of the Sub-Inspector and the Inspector which gives us an idea about the conduct of these two policemen just after the alleged occurrence. The Sub-Inspector has deposed that at about 12 noon on 10-9-1947, these accused persons with two other constables of the outpost had brought under arrest Nageshwar Kalwar and that Musammat Bhagwania and Babban had accompanied them. The Havildar told the Sub-Inspector, that a about 2 A.M. 5 or 6 men armed with bhalas and swords had been found sitting near the outpost under a pakar tree, and that with the help of his torchlight he had identified Nageshwar amongst those five or six men. The Sub-Inspector recorded the statement of Nageshwar which is an exhibit in the case. He says that he did not believe the statement of the accused Havildar and warned him and the constables that they would be prosecuted for wrongful confinement, if they did any such thing in future. Nageshwar was allowed to go away. At about 2-20 P.M. the same day Babban Prasad appeared before the Sub-Inspector and reported that the constables had opened fire and that there was great commotion and panic in the locality. The Inspector''s evidence is that at about 2.30 P.M. he was informed that there had been firing at Katahri Bagh and that he hastened to the spot and met Sub-Inspector Tewari near the Karimchak mosque. He directed the Sub-Inspector to run to the Superintendent of Police, and. along'' with a jamadar he proceeded towards the outpost. When he was 60 steps from the outpost four or five constables including these two accused threatened to shoot him dead if he proceeded further. The two accused further told him that they would shoot the Sub-Inspector Tewari dead as they had been insulted by him and because be had taken no action against Nageshwar Kalwar whom they had produced before him.

Besides what is mentioned in Ex. 1, the petition which was filed by seven persons of the Mahalla before the President of the Town Congress Committee, we have got the evidence of Babban Prasad P.W. 14 for proving that the constables at the outpost were misbehaving with the girls and the mistresses. This witness had stated that his house is contiguous north of Katahri Bagh outpost and that these two accused had often made objectionable remarks against the girls or the mistresses of the Kanya Pathsala. The residents of the Mahalla had resented against their conduct, and many a time had asked the accused to behave decently with the girls and the mistresses. The learned advocate who appears for the appellants before us had asked us to reject the evidence of Babban Prasad on the ground that it is he who has engineered the whole ease. We find no reason for assuming that it is Babban Prasad who has engineered this case against the accused, and, in my opinion, the evidence of Babban Prasad ought. to be accepted.

After reviewing evidence for the prosecution and the defence his Lordship Continued:) After having examined the entire evidence, I find that two witnesses have admitted, at least to some extent, that Nageshwar and these two policemen were carrying on love intrigues with the woman known as Bhagwania. But even if Nageshwar had some connection with Bhagwania, that cannot be of any assistance to the accused in this case. As a matter of fact ft seems doubtful, even on reading the evidence of these two witnesses that they had full knowledge about the connection of Bhagwania with the deceased. It may be only their impression that Nageshwar was in love with Bhagwania.

On the evidence I feel satisfied that the whole trouble was due to the fact that the people of the locality under the leadership of Nageshwar wanted to expose the misdeeds of these policemen. Certainly these policemen could, not tolerate this, and they planned an attack on Nageshwar, whom probably they regarded as the leader of the Mahalla people. They felt exasperated when Nagoshwar was let off by the Police Sub-Inspector, and when the Police Sub-Inspector reprimanded them, and that is the reason why they did not spare even the Sub-Inspector and had the courage and effrontery to tell the Inspector of Police that they would shoot down S.P. Tewari, Sub-Inspector. The mode of attack itself indicates that the two policemen were animated with the intention of killing the deceased and I am not able to agree with the appellants'' learned lawyer that Section 34, Penal Code, has no application in this case. The Privy Council case in AIR 1945 118 (Privy Council) can easily be distinguished in this case as it was distinguished by the Madras High Court in Public Prosecrtor v. Chitikina Subbamma AIR 1947 Mad. 239.

Another question of law was raised by the appellants'' learned lawyer, and it is this that certain necessary questions were not put to the accused when they were examined u/s 342, Criminal P.C. In my opinion, there was sufficient examination of the accused, and even if the examination by regarded as insufficient, that does not vitiate the trial. I may cite the case in Emperor Vs. Alimuddi Naskar and Another, in support of my view.

There does not also appear to be any subsatance in the contention of the learned lawyer that the provisions of Section 289, Criminal P.C. were not complied with in this case. I do not think he is right in submitting that the accused should have been examined again. Clause (4) of Section 289 does not mean anything else except this that if the accused calls no witness he or his pleader is to make his final address to the Court.

Lastly, the appellants'' learned lawyer argued that, even if these appellants are found to be guilty u/s 302, Penal Code, this is not a fit case in which the sentence of death should be awarded.

In my opinion, capital sentence is the only appropriate sentence in this case, there being absolutely no extenuating circumstance. That such a wicked crime should have been committed by policemen who are expected to have due regard for law and whose duty it is to maintain order adds to the enormity of the offence. The reference is accepted, the sentence of death passed on the appellants is confirmed and the appeal is dismissed.

Agarwala, C.J.

I agree.