Emperor vs Abdul Hafiz Hassan on 23 June, 1947

Bombay High Court Emperor vs Abdul Hafiz Hassan on 23 June, 1947 Equivalent citations: (1947) 49 BOMLR 807 Author: Sen Bench: Sen, Gajendragadkar JUDGMENT Sen, J. 1. This is an appeal by the Government of the Province of Bombay against the acquittal of Abdul Hafiz Hassan who was tried in the Court of the Special First Class Magistrate (Riots), Ahmedabad, on a charge under Section 19(e) of the Indian Arms Act, 1878, for contravention of Section 13 which prohibits every person from going armed with any arms except under a licence and to the extent and in the manner permitted thereby. The prosecution case was as under. On July 1, 1946, a communal riot broke out in Ahmedabad City. On July 4, at about 2-30 a.m. Head Constable Natwarlal received a telephone message that stones were falling in Dudwali Pole. He at once started with two other policemen, namely, Head Police Constable Bahudinkhan and Police Constable Jayantilal, and went in a bus to Dudwali Pole. He was told there that the stones were coming from the Muslim locality nearby in Rentia Wadi and accordingly the police party went to that Muslim Mohalla in the said Wadi. There they found 6 or 7 persons who ran away on seeing the policemen. The accused, however, was found sitting on the otla of his house with two dharias in his hands. The accused was at once arrested and taken to the police chowki. The defence was that the accused was inside his house, that as he had kept his doors slightly open and a light inside his room he was called out by the police and asked his name, that when he gave his name he was taken away by the policemen and that before the accused had been called out, the police had found two dharias lying on the road, the suggestion being that a false case was made against the accused with the help of the said two dharias. The learned Magistrate disbelieved the prosecution evidence, holding particularly that the evidence of Bahudinkhan had been subsequently put in and that on the facts of this case it could not be said that the accused was "going armed" at the time of his arrest, because the phrase implied moving about with arms. He was inclined to believe that certain Muslims while running away might have put their dhavias into the hand of the accused and that, therefore, the accused was not guilty. 2. The evidence for the prosecution consisted of the testimony of Natwarlal, Police Jamadar, the report made on July 4 by Natwarlal and the testimony of two other policemen Bahudinkhan and Jayantilal. The accused examined one Nisarbeg who stated that he saw from his house the police party picking up two dharias which were lying on the road and that thereafter they called out the accused, and on his coming out took the accused with them in their bus. Another witness examined by the accused was one Abdul Gani, an old man of 70, who also gave more or less the same story. One document on which the accused relied appears to be an application made to the District Superintendent of Police on July 4, 1946, stating that Natwarlal came to the Mohalla a second time during the day and that he wanted "to create some dispute so that he might have a chance to use his lathi" up in the Muslim inhabitants of the Mohalla. The defence evidence was not noticed or discussed by the learned Magistrate. 3. It seems to Us that the learned Magistrate has disbelieved the prosecution evidence in this case on inadequate grounds. In the first place, his conclusion that witness Bahudinkhan has been put in subsequently appears to us to be clearly wrong. He based his conclusion merely on the fact that the witness was examined on July 16, whereas the other two witnesses had been examined by the police on the 4th. But the report of Natwarlal dated July 4 clearly contains the names of the other two policemen, Bahudinkhan and Jayantilal, and it has not been suggested that this report has been tampered with in any manner. That being so, it seems to us clear that the learned Magistrate's conclusion as regards the belated insertion of the evidence of Bahudinkhan cannot be upheld. With regard to the evidence of Bahudinkhan himself, the learned Magistrate appears to be suspicious of its veracity, because the witness appeared to him to show very poor knowledge of the place where the accused is said to have been arrested. He could not say whether the accused was seated in the first, the last, or the middle house out of a row of houses, or whether at the house itself he was sitting in
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Emperor vs Abdul Hafiz Hassan on 23 June, 1947

front of the first, or last, or any of the other rooms. Nor could he say what was the width of the otla on which the accused is alleged to have been sitting. Whereas Natwarlal has said that after the incident the police party went to a number of places on patrol duty, this witness stated that they went immediately with the accused to the police chowki. We do not think that these apparent defects in the evidence of this witness are to be explained on the basis that he is an unreliable witness. He lists materially supported the evidence of the other witnesses, though he is not quite sure as to the position of the exact place where the accused was found seated. As to the police party going after the incident on further patrol duty, this statement was elicited from Natwarlal only in his cross-examination; he also first said, like Bahudinkhan, that after the incident he took the accused to the police station. 4. As to the other two witnesses, Mr. Patel has argued that Natwarlal is unreliable because according to his own evidence he was not on patrol duty at the time of the incident, whereas in his report he has stated; "While patrolling, a person by name Abdul Hafiz Hassan was found sitting at his house." We do not think that there is any material discrepancy in this statement, as the journey from the police station to the place where the accused was found might have been loosely described as patrol duty. The important criticism that the learned Magistrate has been able to make with regard to the prosecution story is that as soon as the police party approached, one would have expected the accused to get up, throw away the dharias and run away. It seems to us that it cannot be said that the accused would necessarily adopt this course of action and none else. Several people did actually run away and the attention of the police party would be directed more towards them than to any other persons that might not have been seen running, and it might be much safer on the part of any person, who had come out of his house, to sit still, for any movement would render him more noticeable to the police. It does not seem to us, therefore, so improbable that the accused did not so out of his otla when the police party approached his house. Another point taken by the learned Magistrate is that though Natwarlal has said that he left the police chowki on getting a telephone message, there is no Mention of a telephone message having been received in the telephone register that is kept at the chowki. It does not appear to us that the mere omission to record the telephone message in the telephone register shows that Natwarlal's statement is to be disbelieved. When riots had broken out several days before and there were numerous incidents requiring immediate attention of the police, police officers at chowkies and police stations might be excused for not entering every message that they received in the telephone register, as the messages required instant action. We are, therefore, inclined to think that on the whole there is nothing much in the evidence of the three witnesses which can be characterised as false or unreliable, and that they are essentially all reliable witnesses. 5. As to the defence evidence, the writer of the document which was sent or presented to the District Superintendent of Police on July 4 has, no doubt, been examined, but he has not said that he was an eye-witness to what was stated in the application; and though that application has been signed by several persons, none of the signatories have been examined as witnesses. The two other witnesses, Nisarbeg and Abdul Gani, who have been examined for the defence, are not signatories to the application. Again, whereas in the application it is stated that Natwarlal wanted to create some dispute in the Mohalla so that he might have a chance "to use his lathi" against the inhabitants of the Mohalla, what the two witnesses say is that later on, on July 4, Natwarlal came again to the Mohalla and said that he had taken only one Muslim and that he would take 4 or 5 more from the Mohalla. It does not appear to us that either of the two defence witnesses is reliable. Both of them admit that at the beginning of the incident 4 or 5 Muslims ran away, Nisarbeg alleges that he saw and heard everything from inside his house, namely, the police party picking up two dharias, their shouting to Abdul Gani to come and show the Mohalla to the police and their calling out the accused and the accused being subsequently taken away. This witness has also stated that one of the police party was Natwarlal, although he did not see his face and had not known Natwarlal before, and he says "by guess-work" that that man must be Natwarlal. He includes himself amongst the persons who were instrumental in getting the application written, but he has not signed it, nor as regards the later incident, when Natwarlal is alleged to have come again, can he say where the people were sitting at that time. It seems to us that this witness must be regarded MS thoroughly unreliable. Similarly Abdul Gani, who poses as an important person and a Haji who had gone to Haj four times, would, if he knew some material facts of the case, certainly have been included amongst the signatories of the application, but we do not find his name in it. He describes the picking up of
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Emperor vs Abdul Hafiz Hassan on 23 June, 1947

the two dharias by the police party, their calling him out, their calling out the accused and finally their taking the accused away. At the same time he has admitted that he sees "a little dimly." He has not said that he was not standing or sitting close to the place where the two dharias were lying and it seems improbable that he could have noticed all the incidents that he describes. As to the application, he has said that he asked the writer to write about the previous night's incident, though he does not know what was written. Not only is it not stated in the application that the policemen picked up the dharias and so forth, but, as I have already said, this witness's name does not appear at the bottom of the application. It seems to us, therefore, that this witness is also an untruthful witness. We are, therefore, satisfied that the accused was actually found carrying two dharias on his otla on the night in question. 6. There remains the question whether the expression "go armed" in Section 19(e) of the Indian Arms Act can apply to the accused in the circumstances of this case. Mr. Patel has contended, first, that going armed implies some kind of motion, and, secondly, that for going armed a person must not be in his own premises, that is, that the phrase implies leaving one's house or premises and carrying arms with the intention of using the same. It does not seem to us that the phrase necessarily implies motion on the part of the person alleged to have gone armed. In Emperor v. Manjubhai (1929) I.L.R. 53 Bom. 604, s.c. 31 Bom. L.R. 536 the accused in the course of a quarrel between himself and his neighbour had asked his brother to go to the house of another brother and to bring the latter's sword; and the first brother having fetched the sword the accused had taken it and inflicted injuries on the person with whom he had been quarrelling. It was urged on behalf of the accused that the phrase "go armed" implied habitually going armed, but their Lordships negatived this argument, though they did not consider the question whether the word "go" in the phrase necessarily implies motion. In two previous cases, Emperor v. Koya Hansji and Emperor v. Harpal Rai (1902) I.L.R. 24 All. 454 the phraseology of Section 19(e) of the Indian Arms Act has been interpreted, and in the Bombay case it was held, following the Allahabad case, that the essential of the offence was going armed, that is, carrying a weapon with the intention of using it as a weapon when the necessity or opportunity arose. In none of the cases, however, has the further question been discussed, namely, whether going armed must necessarily be outside the house or the premises of the accused. Can it be said that an accused person who was merely carrying arms inside his house and not moving out of the house with the weapon was going armed ? There can be no doubt that the words "going armed" and possession are not to be taken in the same sense. Section 13 of the Arms Act deals with the offence of going armed with any arms except under a licence and Section 14 prohibits the unlicensed possession of fire arms, etc. In our opinion the essence of the offence must be, first, the carrying of the weapon in question on the person of the accused, and, secondly, the intention on the part of the accused of using the arms as a weapon when necessary or opportune. Such an intention must be a necessary ingredient of the offence, as the mere carrying of the weapon could not be intended to be made an offence under Section 19(e). In Emperor v. Harpal Rai a person entitled to possess and use fire-arms had given a pistol to an acquaintance who was not entitled to possess and use fire arms, asking him to take it and get it repaired in a neighbouring town. That acquaintance had given the pistol to his father, who was taking it into the town to get it repaired. when he was arrested and charged with an offence under Section 19(e) of the Act It was held that a pistol which was in need of repairs could not be seriously looked upon as an instrument of offence or defence, and the accused, who eventually could not have had the intention to use the weapon, was acquitted. Similarly in Emperor v. Koya Hansji the accused was the servant of a person who had a licence to keep a gun, and the licensee who had left the gun at Broach, where he and his servant had gone, had asked the servant to bring it back to him. On his way from Broach the servant was arrested by the police and was convicted under Section 19(e) of the Indian Arms Act. It was held that the established circumstances did not suffice to prove the servant's guilt under the said section. These decisions show that the phrase "going armed" necessarily implies that the person must have the intention of using the arms when the occasion or opportunity arose. It seems to us desirable that this point should be further clarified by an amendment of the section. On the view that we have taken that the intention to use the weapon is an ingredient of the offence of going armed, it seems to us that the Court has to look to the circumstances of each case to see whether such an intention can be established or not. In the present case the accused was found at a distance of 8 to 10 paces from his door. This is deposed to by Natwarlal. The accused must, therefore, have come out of his living
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Emperor vs Abdul Hafiz Hassan on 23 June, 1947

rooms with the two dharias in his hands and sat on his otla at a time when rioting was going on in a mohalla where the police party found several people running away. The road, according to the evidence, abuts on the otla on which the accused was found sitting, and if he was at a distance of 8 or 10 paces from his door, there can be little doubt that he was found seated quite close to the road. In these circumstances it seems to us clear that the accused could not have been sitting with the two dharias in his hands for an innocent purpose. He had come out of the rooms in his house carrying the weapons in his hands and he could only have done so with the intention of using the two dharias when an occasion or opportunity of using them arose. Therefore, in our opinion, the prosecution have succeeded in establishing that the accused was going armed in contravention of the provisions of Section 13 within the meaning of Section 19 of the Act; and we must hold the acquittal of the accused was not justified on the evidence. The order of the learned Magistrate, therefore, is set aside and the accused is convicted under Section 19(e) of the Indian Arms Act. As some time has elapsed since the incident, the learned Government Pleader says that he would be satisfied if the accused is sentenced to 3 months' rigorous imprisonment. We think that that would be an adequate sentence and we order accordingly.

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