P L D 1957 Dacca 260 (PLP)

ELLIS, C. J.‑

These two Appeals and two Revision Cases arise out of a riot which took place at 9‑30 a.m. on the 26th of January 1953, at Muksudpur, 6 miles north of Lokhai Police Station in the district of Sylhet. In the course of that occurrence, three persons were shot, Tulshiram Das, Panthiram Das and Ram Govinda Das and succumbed to their injuries. One other person, Sarbeswar Das, was also shot but survived. The riot took place over some ten hals of land which had formed in a newly‑risen Char at the confluence of the Atbaki and Dhan Chari rivers in the district of Sylhet. Over this newly formed Char, there was a dispute between Prafulla Chandra Das on the one hand and Ray Chand Das and his co‑sharers, on the other. The dispute between these rival contestants and their predecessors was of long standing, because Prafulla Das's father had been worsted in a proceeding under section 145 of the Code of Criminal Procedure over the same land in the year 1932 and Prafulla Das himself had been worsted in a proceeding under section 144 of the Code of Criminal Procedure in the year 1952, shortly before the occurrence of the present cases. It is claimed on the side of the prosecution that on the morning of the 26th of January 1953, Prafulla Das and the members of his party attempted to drive out Mathur Chandra Das and the members of his party who had taken lease of the land from Ray Chand and his co‑sharers. Prafulla Das's party was accompanied by two brothers, Ekram Hussain and Dewan Ali. They had made common cause with Prafulla Das because they had unsuccessfully attempted to take settlement of the Char land, from Ray Chand. Disappointed in their failure to do so they joined up with Prafulla Das. They accompanied Prafulla Das's party on the morning of the 26th of January 1953, each of them carrying a gun. When they arrived at the scene where Mathur Das and his companions busily transplanting boro paddy. Prafulla Das forbade them to do so, Mathur Das and his companions announced that they had taken lease of the land; they had been transplanting the seedlings for three days and they intended continuing to do so, Prafulla Das's men then began to pelt Mathur's party with clods of earth. Mathur and his men being unable to stand up to this treatment, retreated towards the north of the bank of the river from there they began, in their turn, to throw clods of earth at Prafulla Das and his party. At this, Prafulla Das called on Ekram Hussain to open fire. Ekram Hussain fired and hit Tulshiram Das of the complainant's party. He fired a second time and hit Ram Govinda Das. Dewan Ali also fired his gun and shot Panthiram Das. He fired a second time and wounded Sarbeswar Das. After this, Prafulla Das and the members of his party left the field. The complainant's party discovered that Tulshiram Das and Panthiram Das had died on the spot and Ram Govinda Das was in extremis. Ram Govinda Das actually died before the Investigating Officer arrived on the scene in response to a first information which was lodged at the Thana by Mathur Chandra Das at 2‑30 p.m. On these allegations, a charge was framed under section 302 of the Penal Code against Ekram Hussain for shooting Tulshiram Das. A second charge under section 302 of the Code was framed against Ekram Hussain for shooting Ram Govinda Das. A third charge under section 302 was framed against Dewan Ali for shooting Panthiram Das and a charge under section 307 of the Code was framed against Dewan Ali for attempting to kill Sarbeswar Das. There was also a charge under section 302/109 against Prafulla Das and for abetting Ekram Hussain in the shooting of Tulshiram Das and Ram Govinda Das by giving the order to fire. Against all the sixteen persons who were placed on trial before Mr. M. G. Mowla, Additional Sessions Judge of Sylhet, there was a charge under section 147 of the Penal Code, and against the accused other than Ekram Hussain and Dewan Ali, there was charge under section 302/109 for their constructive liability for the killing of Tulshiram Das, Ram Govinda Das and Panthiram Das in furtherance of the common object of the unlawful assembly. The case was tried by the learned Additional Sessions Judge with the aid of four Assessors. The Assessors were all of opinion that ten only of the sixteen accused were guilty, and guilty only under section 147 of the Penal Code. With regard to the specific charges and the charge under section 302/109 they found the respective accused not guilty. The learned Additional Sessions Judge being of the same mind as the Assessors convicted these ten accused under section 147 of the Penal Code, and sentenced them. Prafulla Das as the ring‑leader was sentenced to rigorous imprisonment for two years. The remaining accused, were sentenced to rigorous imprisonment for eighteen months each. The appellants were convicted on the 25th of January 1954. On the 30th of March 1954, the appeal of Prafulla Das against his conviction and sentence was admitted. His appeal is Criminal Appeal No. 144 of 1954 and he was represented by Mr. Dharani Nath Dutta. On the same date, the 30th of March 1954, the appeals of the nine other applicants who were represented by Mr. Sabita Ranjan Pal, were also admitted. This is Criminal Appeal No. 145 of 1954. On the 30th of March 1954, when the Court admitted the appeals of Prafulla Das and his co‑accused, the Court suo motu issued a Rule on the accused who had been acquitted of the specific charges framed against them to show cause why the order of acquittal should not be set aside and such other or further orders passed as to this Court might seem fit and proper. Mathur Chandra Das, on his own account, had filed a petition in the matter of the acquittal of these same accused on the 18th of February 1954. It was ordered that the petitioner should move his petition on receipt of a reply from the Legal Remembrancer. The Legal Remembrancer's reply was to the effect that Government would not appeal under section 417 of the Code of Criminal Procedure in the matter of the acquittal of these accused but that the Government would support the Rules issued by the Court suo motu. There after on the 10th of May 1954, an order was passed that Mathur Das's application should be kept on the record to be considered along with Criminal Appeals Nos. 144 and 145 of 1954 and Criminal Revision No. 143 of 1954. Mathur Das is represented by Mr. D. C. Roy. That there was an occurrence at 9‑30 on the morning of the 26th January 1953, over the Char land at the confluence of the Atbaki and Dhan Chari rivers, on the evidence, admits of no argument. We see no reason at all to disbelieve the evidence that during the course of that occurrence. Tulshiram Das and Panthiram Das were shot dead; Ram Govinda Das received gun shot injuries to which he succumbed later and Sarbeswar Das was also wounded by gunshot. The evidence, in our opinion establishes beyond doubt that the contesting parties over the possession of this Char land, are the appellant Prafulla Das on the one hand and Ray Chand Das, on the other. Ray Chand Das was examined as P. W. 14 in the case and he deposed that he and his co‑sharers were the Proprietors of the Char of the Dhan Chari and Atbaki rivers under lease from the Government. Ray Chand bad also admitted that there had been a section 145 case between his father Sharat Chandra Das and his uncles on the one hand and Prafulla Das's father Anath Chandra Vas, on the other side. This was in the year 1932 and the case resulted in favour of Ray Chand's father and his uncles. Thereafter in 1952 Prafulla Das himself brought a case under section 144 of the Code of Criminal Procedure against Ray Chand Das and his lessees in respect of the fisheries in these rivers and was unsuccessful. His application was dismissed shortly before the occurrence of this case. It appears to us to be clear, therefore, that the dispute being between Ray Chand Das on the one hand and Prafulla Das on the other, the occurrence on the morning of the 25th of January 1953, took place between the lessees of Ray Chand Das on the one hand and Prafulla Das and his supporters on the other. It would appears to be a dispute primarily between Hindu fishermen, with regard to the fisheries of the two rivers and their confluence. The evidence satisfies us that on the actual date of occurrence, it was Ray Chand's men who were in possession of the land and we see no reason to disbelieve the story that they had actually been transplanting boro paddy for two or three days before the incident. This story is supported by the evidence of the Investigating Police Officer who deposed to the effect that he actually did see seedlings planted on the land and the seedlings were of different age and growth‑a circumstance which supports the prosecution story that they had not all been planted at the same time. The learned Additional Sessions Judge had detailed the evidence with regard to each of the accused who were convicted under section 147 and has pointed out that Prafulla Das was named by all the nine eye‑witnesses to the occurrence as were Banka, Satrugna, Subal and Bepin. Pandit was also named by all the eye witnesses, but one of them, Parameswar Das, had not named his name to the Police. Tufani was not mentioned by P. W. 4 Ananda Chandra Das; Joymoni was not mentioned by P. Ws. 3 and 4 Parameswar Das and Anandra Chandra Das; Nirdhan was not mentioned by P. Ws. 4 and

5. Ananda Chandra Das and Khitish Chandra Das, while Anath was not mentioned by P. Ws. 3 and 4, Parameswar Das and Ananda Chandra Das. There is, however, ample evidence on record to show that each of these appellants participated in the riot sharing in the common intention of the rioters and accordingly they have been rightly convicted. We issued a Rule on Ekram Hussain to show cause why his acquittal on the charge under section 302 of the Penal Code for shooting Tulshiram Das and on the charge under section 302 for shooting Ram Govindra Das should not be set aside and against Dewan Ali to show cause why his acquittal on the charge under section 302 for shooting Panthiram Das and on the charge under section 307 for attempting to kill Sarbeswar Das, should not be set aside. In opposition to the Rule Mr. Hamidul Huq Chowdhury has drawn our attention to the case of Shera and 6 others v. The Crown (P L D 1954 F C 141). We may observe that it never was our intention, in issuing the Rule suo motu on these accused, to convert their, acquittal to the conviction. So much is at once clear from the language in which the Rule was issued. The Rule was issued on them to show cause why their acquittal should not be set aside or such other or further order or orders passed as to this Court might seem fit and proper. We are unable to find in the case cited by Mr. Hamidul Haq any authority for the proposition that this Court has no power on a Rule issued byl itself suo motu, to set aside an order of acquittal and to order a retrial. On the facts of the present cases, however, we do not propose to order any retrial. As we have already indicated, in our opinion, the quarrel was one between two sets of Hindu fishermen over this Char land at the confluence of the two rivers. The first question which immediately presents itself to our mind is why in a quarrel between two sets of fishermen Ekram Hussain and his brother Dewan Ali should be found. The evidence establishes that Ekram Hussain and his brother did not belong to the district of Sylhet. They belong to the district of Mymensingh. They live across the river Dhaleswari 3 or 4 miles away from the place of occurrence. As the prosecution alleges that they were on the morning of the 26th of January 1953, present armed with guns in the company of Prafulla Das's men, the question naturally arises as to why they should be found in their company. The prosecution's answer to this question is that they also were candidates for the lease of the Char land and had approached Ray Chand for that purpose. Ray Chand had refused to lease out to them, and so, consequently they made common cause with Prafulla Das and joined his gang on the morning of the 26th of January 1953, for the purpose of forcing out Ray Chand's lessees Mathur Das and his men. We have been carefully through the record and we can find no hint at all of any evidence other than that of Ray Chand himself that Ekram Hussain and his brother Dewan Ali ever approached him to take lease of the land and they only came to him on one occasion and never visited him again. Ekram Hussain is a local Union Board President and obviously a man of position and influence‑not the sort of a man who would be expected to be found in a riotous mob. The defence explained the reason why he and his brother had been named in the company of Prafulla and his men. The reason goes back to the communal riot in 1950 and to the time when the Hindus of that particular part were on the aggressive against the Muslims, had set fire to and looted their houses and had kept them more or less confined for three days. It was Ekram Hussain who took vigorous action to rescue them and by so doing, he had incurred the enmity of Ray Chand and Ray Chand's co‑villagers at Naogaon. The evasive manner in which Ray Chand Das answered question with regard to these incidents in 1950, leads us to believe that there is a considerable substratum of truth in the defence suggestion that Ekram Hussain and his brother Dewan Ali, marched to the relief of their co‑religionists when they were held under siege by the local Hindus for three days, and relieved them. It is not perhaps without significance that in the first informa tion report Mathur Das himself explained that the reason why there had been some delay in coming to the Police Station, was that he had, first of all, to inform his landlord Ray Chand Babu as to what had happened and it was the defence suggestion to the prosecution witnesses that it was at Ray Chand Das's instance that they had named Ekram Hussain and Dewan Ali as members of the assaulting party of Prafulla Das. The learned Additional Sessions Judge has considered the evidence with regard to the alleged firing by Ekram Hussain and Dewan Ali under the orders of Prafulla Das. That Tulshiram Das, Panthiram Das and Ram Govinda Das were all shot dead, admits of no dispute. We are not impressed by the argument of the learned Additional Sessions Judge that perhaps the object of the men behind the guns was not to kill these three persons but merely to drive Mathur Das and his men away from the Char land. Neither are we impressed with the argument that no particular aim was taken and the men behind the guns fired at random and Tulshiram Das and Ram Govinda Das were unfortunate in that they got in the way of the shot. The evidence leaves us with no doubt that, whoever shot at Tulshiram Das and Ram Govinda Das they did so with the intention of killing them ; and we would remind the learned Additional Sessions Judge of the presump tion of law that a man intends the natural and inevitable consequences of his own act. If a man fires a gun at another man and kills him, the law will presume that he intended to kill him, not, as is suggested, that he merely intended to drive him away from the place where he was standing. Accepting that Tulshiram Das, Panthiram Das and Ram Govinda Das were shot dead and Sarbeswar was wounded the question remains whether the men behind the guns were Ekram Hussain and Dewan Ali, and we are not satisfied on the evidence that the men were Ekram Hussain and Dewan Ali. Although we have not been impressed by some of the arguments put forward by the learned Additional Sessions Judge, we are impressed by his argument that the injuries on the persons of the men wounded suggests that the prosecution witnesses are not speaking the whole truth. As the learned Additional Sessions Judge points out, the Doctor found that Tulshiram Das had 68 gun shot wounds, Ram Govinda Das 64 and Panthiram Das

41. According to the prosecution story, they were all shot at a range of 40 yards. Sarbeswar was also shot from the same range ; yet, we find that he only sustained one gun shot wound. The learned Additional Sessions Judge comments on the fact that the guns were not seized, nor was any Arms Expert examined in order to give an expert opinion as to the range at which the guns were fired and as to the spreading of the shot; that is really not material. What is material is that if Tulshiram, Panthiram, Ram Govinda and Sarbeswar were all shot at the same range by the same persons using the same guns and firing the same shot, it seems to us that there is no reasonable explanation as to why Tulshiram Das should have 68, Ram Govinda Das 64, Panthirdm Das 41 and Sarbeswar Das only two gun shot wounds. That fact suggests to us that the prosecution has not come clean with the manner in which the shots are said to have been fired. Prafulla Das was also charged under section 302/109 for giving the orders on which Ekram Hussain fired Tulshiram Das and Ram Govinda Das. He was acquitted of this charge by the learned Additional Sessions Judge on the ground that Mathur Das did not mention in the first information anything at all about any order by Prafulla Das, nor indeed was the Investigating Police Officer ever told of any such order. This being so, we think that the learned Additional Sessions Judge was quite right when he declined to convict Prafulla Das of an offence under section 302/109, remembering that it is a common practice in such Criminal cases to try and fasten the guilt on one or other of the accused by introducing evidence that he gave the orders for the firing. So far as the, two Revision Cases are concerned, we do not propose to direct any retrial of the accused. The Assessors and the learned Additional Sessions Judge who saw the witnesses and heard them depose were of the same mind that there was no reliable evidence on which these accused could be convicted of the specific offences charged against them. A careful consideration of the recorded evidence and of the arguments submitted to us leads us to the same conclusions and we hold that there is no occasion for us to interfere with the orders of acquittal. As we have already indicated, we are quite satisfied that the Assessors and the learned Additional Sessions Judge had reasons to convict the appellants under section 147 of the Code we do not propose to interfere with that conviction. In the result then, Criminal Appeals Nos. 144 and 145 of 1954 are dismissed and the conviction and sentences are maintained. The Rule in Criminal Revision No. 143 of 1954 is discharged, and no action is taken in Criminal Revision No. 197 of 1954. BADIUZZAMAN, J.‑

I agree. K. B. A. Appeals dismissed. no action taken in another.