BALADIN AND ORS. VS STATE OF UTTAR PRADESH
Bench: Hon'ble Justice Vivian Bose, Hon'ble Justice B. Jagannath Das And Hon'ble Justice B. P. Sinha
• Whether the instant case is a fit case for appeal to the Supreme Court because the High Court has granted the leave to appeal to the Supreme Court without laying down the grounds for appeal that require to be settled?
• Whether the courts below had erred in law in convicting those accused persons against whom no specific parts had been deposed to and whose mere presence, in the assembly had been penalized?
• Twelve or thirteen refugee families from West Punjab were rehabilitated in village Goran which is about 10 miles from Orai town by the direct 'Kachha' route and about 25 miles by the road proper.
• The State Government provided those displaced families with lands for cultivation and sites in the village 'abadi' for residential purposes, as also loans for helping them to settle in their new homes.
• However, the new-comers were not welcome to the old residents of the village because they were looked upon as competitors for house sites and cultivable lands of the village which resulted in a great deal of tension between the old residents and the new settlers.
• On 4th February 1952, an incident took place between Diwan Singh and Mangal Singh, two of the displaced persons on the one side, and Vir Singh Lodhi and Shambhu Lodhi on the other, in which grievous hurt was said to have been caused to Shambhu Lodhi and simple injuries to the displaced persons, leading to the lodging of counter-information at the police station.
• As the refugees found the attitude of the local police hostile to them, 13 male members of the refugee families including Mool Singh, Mela Singh, Sant Singh, and Ravel Singh, four of the six persons who were cruelly done to death in cold blood in the occurrence of the 17th February, came to Orai on the morning of the 5th February 1952 to report the matter to the district authorities and to the Refugee Officer.
• Thereafter, the villagers assembled at the house of Parichhat Lodhi, adjacent to the house of Mangal Singh, one of the refugees, having resolved to kill all the male members of the refugee families so as to put an end to the recurring trouble.
• Such alarming news caused a great deal of commotion amongst the refugees and they decided to file a complaint to the District Magistrate, the Superintendent of Police, and the Refugee Officer informing them about the aforesaid resolution of the old residents of the village and their apprehensions about the safety of their persons and imploring the authorities to give them and their families protection against the threatened attack.
• It was decided that six of the refugees, namely Mool Singh, Mela Singh, Ravel Singh son of Mangal Singh Sant Singh, Kastura Singh and Harbans Singh should go back to the village Goran under the cover of the night to rescue their families and bring them back to safety. These were the six unfortunate victims of the occurrence which took place the next morning.
• Suddenly a crowd of 80 to 100 persons armed with axes spears, daggers, guns, etc. surrounded the said Mangal Singh's house where these six persons were taking shelter. Narain Das Lodhi and Baladin Lodhi along with 15 to 20 other Lodhis appeared on the first floor of Mangal Singh's house with guns and shot down Mela Singh, Ravel Singh, and Mool Singh.
• The other Lodhis were also said to have attacked those three unfortunate male members and be laboured them with their lethal weapons.
• Some of the members of the mob who had guns with them (Prabhu Dayal and Shobhar Lal not before the court) fired a number of shots at the other three persons and killed them. The other members of the mob are said to have belaboured those unfortunate victims with their spears, axes and daggers.
• The accused persons, in this case, were members of an unlawful assembly armed with deadly weapons like guns, spears, swords, pharsas, axes, and lathis with the common object to cause death and grievous hurt to refugees in general and the six named refugees in particular.
• Both the prosecution and the defence admitted before the Sessions Judge that serious enmities existed between the original inhabitants of the village on one side and the refugee families on the other.
• The appellants argued that the High Court granted the certificate in the exercise of its powers contained in Rule 28 of Chapter 23 of the Rules of the Allahabad High Court which required that the counsel for the appellant should pray for the leave at the time the judgment of the High Court is delivered.
• The leave having been granted in pursuance of that practice, it should be, it was further contended, assumed that the High Court had directed its attention to the case of each individual accused.
• The appellants contended that the courts below were in error in relying upon the evidence of the four eye-witnesses aforesaid when their statements in court were at variance with their statements as recorded by the investigating Sub-Inspector.
• They argued that the courts below were in error in convicting and sentencing the appellants on the testimony of those four eye-witnesses when their evidence had not been acted upon in respect of the other accused who had been acquitted by the courts below.
• The appellants further raised questions regarding the evidence of those four eye-witnesses having been disbelieved by the lower appellate court, particularly in respect of some of those accused persons to whom they had attributed specific parts, should, not have been accepted in respect of those accused to whom no such parts had been assigned; and that the courts below had erred in law in convicting those accused persons against whom no specific parts had been deposed to and whose mere presence, in the assembly had been penalized.
• The respondent raised a preliminary objection to the hearing of the appeal on the ground that the certificate granted in the terms quoted above is not in full compliance with the provisions of Article 134(1)(c) of the Constitution.
• It was contended that the High Court should have granted the certificate after examining the case of each individual accused, that is to say, that the High Court should have exercised its judicial discretion after satisfying itself that the certificate prayed for should be granted in respect of each and every accused convicted by it.
• The respondent on the other hand contended that the question is concluded by the decision of this Court in 'Nar Singh V. State of U.P’ which laid down three propositions:--
(1) that the mere grant of a certificate does not prevent this Court from determining whether it was rightly granted and whether the conditions prerequisite to the grant are satisfied;
(2) that the only condition is the exercise of judicial discretion by the High Court;
(3) that being a judicial discretion, it must be exercised along well-established lines governing an exercise of judicial discretion; and
(4) if the discretion is properly exercised on well established and proper lines, then, as in all cases where an exercise of discretion is involved, there would be no interference except on very strong grounds.
The apex court observed that a certificate cannot be granted under Article 134(1)(c) of the Constitution if the High Court is in doubt about 'the facts. If there is doubt in the minds of the learned Judges about the facts, their duty is to acquit and they cannot convict and then issue a certificate because they cannot make up their minds about the facts. The Supreme Court held that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 of the Indian Penal Code. It must be proved that he was one of the persons constituting the assembly and he entertained long with (other members of the assembly) the common object as defined by Section 141 IPC. The apex court held that the appeal of Thakur Das, Ishwari Prasad, Mulloo, and Jagdish is allowed. Their convictions and sentences are set aside and they will be released forthwith. The convictions and sentences in respect of the other appellants namely Baladin Lodhi, Parichhat, son of Lallu Lodhi, Ajodhia Lodhi and Parichhat, son of Sadhoo, Raja Ram, Uma Charan, Mahabir Pershad, Narain Das, Ramola, Vir Singh 'alias' Vira Lodhi, Mannu Teli, and Jangi are maintained and their appeals dismissed.
It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, Indian Penal Code.
It would thus appear that the place of occurrence is surrounded on all sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in the prosecution of the common object of the unlawful assembly.
It has been found that the common object of the unlawful assembly was not only to kill the male members of the refugee families but also to destroy all evidence of those crimes. Thus even those who did something in connection with the carrying of the dead bodies or disposal of them by burning them as aforesaid must be taken to have been actuated by the common objective.