Baladin And Ors. vs State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 118 of 1954 and 119 of 1954

Decision Date: 18 October 1955

Coram: Sinha, J.

In this matter, the Supreme Court of India delivered its judgment on 18 October 1955. The opinion was authored by Justice Sinha. The case involved the appeals titled Baladin and Others versus the State of Uttar Pradesh.

Two separate appeals were taken before this Court, both of which stemmed from the same decree and order issued by a Division Bench of the Allahabad High Court. The High Court had granted leave to appeal at the same moment that it pronounced its judgment. The present judgment will have to comment on whether the leave that was granted complied with the requirements of law and procedure. In total, Criminal Appeal No 118 of 1954 named sixteen appellants, while Criminal Appeal No 119 of 1954 named a single appellant.

Both appeals concerned the same incident that occurred on the morning of 7 February 1952 in the village of Goran, which fell under the jurisdiction of the Ait police station in Jalaun district of Uttar Pradesh. A group of fifty-seven individuals was brought before the learned Sessions Judge at Orai to stand trial for offences alleged under the Indian Penal Code.

The charges framed against the accused comprised offences punishable under Section 120B (criminal conspiracy) and Section 148 (rioting), as well as offences under Sections 201 (causing disappearance of evidence), 302 (murder), 325 (voluntarily causing grievous hurt) and 452 (house-trespassing), each read in conjunction with Section 149 (unlawful assembly). The trial judge acquitted every accused of the charge under Section 120B. He found thirty-six of the accused guilty of the offences under Sections 148, 201 read with 149, and 302 read with 149. Of those convicted, nine persons received the death penalty. The remaining convicted persons were sentenced to transportation for life for the murder charge read with Section 149, to two years of rigorous imprisonment for the rioting charge under Section 148, and to seven years of rigorous imprisonment for the offence under Section 201 read with 149 in the case of four of the accused. The balance of the convicted individuals were sentenced to three years of imprisonment for the same offence. The convictions and sentences that had been awarded under Section 325 read with 149 were not upheld by the High Court on appeal, and therefore need not be reiterated here. Additionally, a number of the accused were found guilty of the offence under Section 452 and were sentenced to three years of rigorous imprisonment. Another accused, identified as Kamoda Chamar, was convicted under Section 325 read with 149 and was sentenced to three years of rigorous imprisonment. Consequently, out of the fifty-seven people who faced trial, thirty-seven were found guilty and were sentenced by the trial court, with the judgments being partly consistent and partly inconsistent with the findings of the assessors.

When the matter was presented to the High Court on appeal, the Court dismissed the appeal filed by Baladin Lodhi, who is the first appellant before this Supreme Court, and affirmed his convictions and sentences under Sections 148, 452, 302 read with 149 and 201 read with 149. The High Court also accepted the reference and confirmed the death sentence that had been imposed on him for the murder charge read with Section 149. Regarding the other appellants who had initially received death sentences, the High Court set aside the death penalty for four of them by acquitting them entirely. For the remaining appellants who had been sentenced to death, the High Court modified the sentence by substituting the death penalty with a lesser punishment, specifically by granting them transportation for life in respect of the charge under Section 302 read with 149.

The High Court substituted the death sentence for the appellant who had previously been sentenced to death with a lesser sentence of transportation for life. In addition, the High Court set aside the appeals of twenty further appellants and acquitted each of them of all charges. Consequently, the High Court affirmed the convictions and sentences of the remaining seventeen appellants, but altered the punishment for the one appellant who had earlier received the death sentence, replacing it with transportation for life. Of those seventeen, sixteen were listed as appellants in Criminal Appeal No 118 of 1954, while a single appellant, Jangi, was listed in Criminal Appeal No 119 of 1954. Both of these appeals were heard together, and the present judgment disposes of them jointly. The Court then turned to a brief description of the background that preceded the violent episode which formed the basis of the charges. About twelve or thirteen families of refugees who had fled from West Punjab were settled in the village of Goran, which lies roughly ten miles from the town of Orai if one travels by the direct unpaved “kachha” route and about twenty-five miles by the main road. The State Government allotted land for agricultural use to these displaced families and provided residential plots within the village settlement, together with loans to assist them in establishing new homes. However, the existing villagers resented the newcomers, regarding them as competitors for the limited residential sites and cultivable land. This hostility created considerable tension between the original inhabitants and the refugee families. Over the four years during which the refugees had been living in the village, various minor disputes arose, including disagreements over cattle grazing and occasional assaults. Both communities lodged complaints with public authorities, alleging harassment by the other side. The antagonism grew steadily, culminating on 4 February 1952, which was three days before the fatal incident that gave rise to the present charges. On that date, Vir Singh, also known as Vir Lodhi, was alleged to have engaged the services of Shambhu Lodhi, a resident of Hamirpur district who was reputed to be a notorious figure. Both parties admitted that an altercation occurred involving Diwan Singh and Mangal Singh—two of the displaced families—on one side, and Vir Singh Lodhi together with Shambhu Lodhi on the other. The confrontation resulted in serious injuries to Shambhu Lodhi and minor injuries to the displaced persons, leading to the filing of counter-informations at the police station. Although both sides suffered injuries, the severity was not equal, and, as the lower courts later observed, the police dealt with the incident in a very lax manner, failing to view it as a precursor to the more serious violence that unfolded three days later. Because the refugees perceived the local police as hostile toward them, thirteen male members of the refugee families, including Mool Singh, Mela Singh, Sant Singh and Ravel Singh—four of the six persons who were later brutally killed on 7 February—went to Orai on the morning of 5 February 1952 to report the matter to the district authorities and to the Refugee Officer. They succeeded only in submitting an application to the Refugee Officer and were unable to obtain a hearing from the district authorities. Disappointed by this response, they resolved to file a formal complaint in court against Shambhu Lodhi and others, spending 6 February seeking further contact with public officials to air their grievances and to prepare the legal complaint.

Singh, Sant Singh and Ravel Singh—four of the six individuals who were later killed in cold blood on 7 February—travelled to Orai on the morning of 5 February 1952 with the intention of reporting the matter to the district authorities and to the Refugee Officer. They succeeded only in lodging an application with the Refugee Officer and were unable to secure a hearing before the district authorities, an outcome that left them disappointed. Because of this unsatisfactory response, they resolved to file a formal complaint in court against Shambhu and the other accused persons. On 6 February they dedicated the entire day to further attempts at contacting public officials in order to air their grievances and also spent time preparing the complaint that would be presented in court.

Meanwhile, events were unfolding in another camp located at the village of Goran. The local villagers gathered at the residence of Parichhat Lodhi, which stood adjacent to the house of Mangal Singh, one of the refugees, after learning that most of the male members of the refugee families had travelled to the district headquarters to take action against the villagers. The assembled villagers are said to have resolved to kill all the male members of the refugee families in order to put an end to what they perceived as persistent trouble. When Ravel Singh and Kartar Singh, two of the thirteen refugees who had gone to Orai, returned to their village, their womenfolk informed them of the alleged conspiracy that had been hatched by the villagers later that same evening. Consequently, the two refugees hurried back that night—the night between 6 and 7 February—to Orai and warned the other male refugees about the villagers’ resolution. The alarming news caused great commotion among the refugees, prompting them to immediately draft applications to be submitted to the District Magistrate, the Superintendent of Police and the Refugee Officer. In these applications they described the villagers’ resolution, expressed fear for their personal safety, and pleaded for protection for themselves and their families against the threatened attack. They also made it clear to the authorities that the situation was so serious that they intended to go to the village of Goran under the cover of darkness in order to rescue their families and bring them to safety. It was decided that six refugees—namely Mool Singh, Mela Singh, Ravel Singh (son of Mangal Singh), Sant Singh, Kastura Singh and Harbans Singh—should return to the village to rescue their families. These six individuals later became the unfortunate victims of the incident that occurred the following morning. As soon as the six reached the village on the morning of 7 February 1952, at about sunrise, they found their womenfolk in a state of alarm, gathered at the house of Mangal Singh. They were apprised of the desperate situation in which

The women found themselves alone after the men had left. After they discussed the situation and exchanged information, three of the men—Mela Singh, Ravel Singh and Mool Singh—were taken upstairs to have breakfast following their night-long journey. Consequently, three of the six male refugees who had arrived from Orai were on the upper floor, while the remaining three—Kastura Singh, Harbans Singh and Sant Singh—were on the ground floor of Mangal Singh’s house. At that moment a crowd of about eighty to one hundred persons surrounded the house, bearing axes, spears, daggers, guns and other weapons.

From the first floor of the house, Narain Das Lodhi, Baladin Lodhi and fifteen to twenty other Lodhis appeared armed with guns and opened fire, killing the three men who were upstairs. The other Lodhis also attacked those three men with their lethal weapons. Mela Singh received two gunshot wounds and, while trying to flee downstairs, fell to the ground. He was then picked up by Smt. Bhagwanti, one of the four eyewitnesses examined, and hidden in the grain room of Mangal Singh’s house. The Lodhis on the first floor threw the dead bodies of Mool Singh and Ravel Singh from the roof toward the cattle shed belonging to Mahabir, who was one of the appellants.

The three remaining men on the ground floor were prevented from escaping by the large mob assembled in front of the house. Several members of the mob who were armed with guns—identified as Prabhu Dayal and Shobha Lal, who did not appear before the court—fired numerous shots at the three men, killing them. Others in the mob battered these victims with spears, axes and daggers.

While concealed in the grain room, Mela Singh was later dragged out by Raja Ram and Mahabir, both appellants, together with other persons. Upon being taken out, he was assaulted by Jangi Lodhi, the sole appellant in Criminal Appeal No. 119 of 1954, and by others who were not before the court, using axes. He was also struck by Uma Charan, another appellant, who used a sword, and the unlawful assembly members finished him off.

The dead bodies of all six victims were then dragged to the front of Manna Teli’s house. Two bullock carts—one owned and driven by Manna Teli and the other owned and driven by Vira Lodhi, another appellant—were each loaded with three of the bodies and taken to the village tank. A tin of kerosene oil was poured over the bodies, and Vira Lodhi and others set fire to the combined pyre, causing the bodies to be burnt.

The six bodies had been reduced to ash after the fire, a horrific scene that was observed by four women who were residing in the house at that moment. The witnesses were identified as Mst. Paiyyan Devi (P.W. 18), Mst. Shanti Devi (P.W. 21) and Mst. Parvati (P.W. 22), who were respectively the widows of Mela Singh, Mool Singh and Sant Singh—three of the six victims. The fourth woman, Mst. Bhagwanti (P.W. 20), was the wife of Mangal Singh and the mother of the fourth victim, Ravel Singh. While these six male refugees met their violent deaths, the remaining male refugees who had remained in Orai endeavoured to obtain the attention of the public authorities on 7 February but were unable to succeed. At about two o’clock in the afternoon they were waiting at the residence of the Superintendent of Police for an interview when two of the refugees returned from the market with the unsettling news that a rumor was circulating that the six refugees who had traveled to the village had been murdered. Overcome with grief, the men began to weep and lament their situation, and the Superintendent, upon hearing the distressing report, granted them the interview they sought. He then ordered Circle Inspector Kabir Ahmad (P.W. 27) at approximately four-thirty p.m. to proceed to the village in a police truck, accompanied by an armed guard and the refugees.

After sunset the Circle Inspector, while en route, encountered Sub-Inspector Raj Bahadur Singh of the Ait police station, who was returning to Orai on a passenger bus and appeared completely unaware of the events that had taken place at Goran village. The Sub-Inspector’s lack of knowledge may be explained by the fact that at about five o’clock in the evening on the same day the village chowkidar, Ramola—one of the appellants—had filed a report with the police station stating that everything was quiet in the village. In reality that “quiet” was only the silence that followed the massacre and the burning of the bodies by members of the mob. The Circle Inspector and Sub-Inspector Raj Bahadur Singh returned to the police station, reinforced their party, and continued to the village, arriving at approximately midnight between the 7th and 8th of February. Upon arrival the village presented a deserted picture: no lamps glowed in any house, no voices could be heard, and the original inhabitants of the village, together with the remaining refugees, seemed to have completely abandoned the place.

Mangal Singh and Diwan Singh, who were among the refugees, took the police truck to the nearby settlement of Kotra, located about two and a half miles from Goran, in order to search for their women and children. While traveling through the jungle they collected several women and children and brought them back to the village. On the morning of 8 February the Deputy Superintendent of Police arrived at Goran accompanied by some of the refugee women, specifically Mst. Paiyyan Devi and Smt. Bhagwanti Devi, who were two of the four eyewitnesses previously mentioned.

According to the record, the two refugee women walked from the village to Orai and, after midnight, reported the incident to the Superintendent of Police, stating that they had witnessed the occurrence. In response, the Superintendent assigned a Deputy Superintendent to investigate the matter. When the Deputy Superintendent arrived at the village on the following morning, no investigative progress had been made because the Sub-Inspector on duty was found sleeping. The courts below observed that the police investigation was conducted in an unsatisfactory manner. It emerged that the local police, ranging from the village chowkidar up to senior officers, displayed not only apathy but also clear hostility toward the refugees. Rather than taking preventive measures in view of the growing tension between the two communities, the authorities allowed the situation to deteriorate until the tragic incident occurred. Even after the event, Sub-Inspector Raj Bahadur Singh (identified as PW-30) failed to take immediate steps to apprehend the perpetrators. Moreover, from the inception of his inquiry, he altered the narrative of the prosecution case by entering diary notes that suggested the incident had taken place at night, contrary to the prosecution’s claim that it had occurred in broad daylight, thereby rendering identification of the culprits difficult, if not impossible. A complaint was lodged against him by senior officers, and on the same day the investigation was removed from his charge and Circle Inspector Kabir Ahmad (PW-27) was appointed to oversee the probe. Nonetheless, the Circle Inspector also appeared to be influenced by the local police bias favoring the accused, and following further complaints he was relieved of the investigation on 21 February 1952. The Deputy Superintendent C. B. Singh (PW-28) did not commence a diligent investigation until 30 May 1952, although he had formally assumed control of the case on 22 or 23 February 1952 after taking over from Inspector Kabir Ahmad. Between February and May, his actions were limited to raiding the houses of several accused persons, serving warrants of attachment and proclamation under Sections 87 and 88 of the Criminal Procedure Code, and recording statements of a few individuals on 11 and 13 March 1952. The substantive portion of his investigation was undertaken only after 30 May 1952; however, the records of the witness statements he obtained were deficient. Although the witnesses had assigned specific acts to particular accused persons, the Deputy Superintendent failed to record the statements with reference to each individual role, a shortcoming unbecoming of a senior police officer.

The Court observed that the police officers who conducted the investigation had failed to appreciate the seriousness of the matter and had not taken prompt steps to collect evidence of an incident that, on its face, was unusual because it resulted from a pre-planned scheme to annihilate the male members of refugee families who were being treated by the village residents as usurpers of cultivable land and house sites. Even if the police had realized the seriousness of the situation, they were not able to rise to the occasion; they were either incompetent or unwilling to take all necessary measures to ensure justice and to inspire confidence in the minds of the aggrieved parties. This negligence, as will be shown, had a very adverse effect on the prosecution’s case and added to the difficulty for the Court in determining who the real culprits were. Although the prosecution did not rely upon the investigation alleged to have been conducted by the Sub-Inspector and the Circle Inspector, those officers were examined as prosecution witnesses so that the parties could elicit any information they considered necessary and proper. The defence, on the other hand, completely denied any knowledge of the occurrence and of the alleged deaths of the six male refugees who had travelled on the night between 6 and 7 February from Orai to the village. The accused persons ascribed their alleged implication in the incident to various forms of enmity between them and the refugee families. They claimed that the refugee families had become so obnoxious to the original inhabitants that tradespeople such as blacksmiths, potters, shoe-makers, money-lenders and shop-keepers had refused to render any services because the refugees would not pay for those services. Concerning the main occurrence, the accused suggested that even if the six refugees had been put to death, the act might have taken place in the darkness of night by unknown persons, and that the acknowledged hostility between the two groups was the reason for a false implication. Thus it was clear that both the prosecution and the defence agreed that serious enmities existed between the original inhabitants of the village on one side and the refugee families on the other; the animosity was communal rather than limited to particular individuals. As a result of the police investigation, limited as it was, and the committal proceedings, the accused who were placed on trial were charged, firstly, under Section 120B of the Indian Penal Code for conspiracy to do illegal acts, namely murder and causing grievous hurt to refugees generally and to the six named refugees in particular; secondly, under Section 148 of the Indian Penal Code for being members of an unlawful assembly armed with deadly weapons such as guns, spears, swords, axes and lathis with the common object of causing death and grievous hurt to refugees generally and to the six named refugees in particular; thirdly, under Section 452 of the Indian Penal Code for house trespass by entering the dwelling of Mangal Singh after having made preparations for causing death and hurt; fourthly, under Section 302 read with Section 149 of the Indian Penal Code for having committed the murder of those six persons in pursuance of the common object of the unlawful assembly and in furtherance of the alleged criminal conspiracy; and lastly, under Section 201 read with Section 149 of the Indian Penal Code for causing the evidence of the aforesaid offences to disappear by burning the dead bodies of the six persons and by discarding the bones and ashes.

In the trial, the accused were charged with several offences under the Indian Penal Code. Firstly, they were alleged to have conspired, in violation of Section 120B, to commit illegal acts that included murder and causing grievous injury both to the refugee community generally and to six specifically named refugees. Secondly, they were charged under Section 148 for being members of an unlawful assembly that was armed with deadly weapons such as guns, spears, swords, pharsas, axes and lathis, with the common objective of inflicting death and grievous hurt upon the refugees in general and the six named individuals in particular. Thirdly, they faced a charge under Section 452 for house trespass after entering the dwelling that belonged to Mangal Singh, which was being used as a human residence, after having made preparations intended to cause death and injury. Fourthly, they were charged under Section 302 read with Section 149 for having actually murdered the six persons, acting in pursuance of the unlawful assembly’s common object and furthering the alleged criminal conspiracy. Fifthly, a charge under Section 201 read with Section 149 was framed for the alleged destruction of evidence of the aforesaid offences by burning the dead bodies of the six victims and discarding the bones and ashes in the village tank. A reference to a charge under Section 325 read with Section 149 was deemed unnecessary at that stage of the proceedings.

The learned Sessions Judge, after partially accepting and partially rejecting the opinions of the three assessors who assisted him at trial, acquitted all the accused of the conspiracy charge under Section 120B. Although the judge accepted the prosecution’s assertion that a meeting had taken place on the evening of 6 February at the residence of Parichhat Lodhi, wherein it was resolved to kill the male members of the refugee families, he nonetheless found the evidence insufficient to sustain a conviction for conspiracy. Regarding the remaining charges, the judge convicted and sentenced thirty-seven of the accused as previously indicated. In reaching his judgment, the trial judge concluded that the four women who were the sole eye-witnesses to the incident were, on the whole, truthful and corroborated each other on all material points. He observed that the statements recorded by Sub-Inspector Raj Bahadur Singh were not a faithful representation of the witnesses’ testimony, and that the Circle Inspector of Police had failed to make an independent record of his own. Consequently, the judge held that the prosecution’s version of events was correct and that the alleged contradictions between the eyewitnesses’ oral statements and the written records should not undermine their credibility, because there were clear indications that the Sub-Inspector had distorted the statements to favour the accused. Nevertheless, the judge exercised caution by scrutinising the evidence of the four eyewitnesses closely, even though he ultimately regarded them as competent and truthful, mindful of the general tendency in rioting cases for witnesses to be influenced or to include individuals who may have been mere spectators rather than participants acting under the unlawful assembly’s common object.

In deciding the matter, the Court considered that some individuals present at the scene might have acted only as onlookers and not as participants driven by the common unlawful purpose of the assembly. Consequently, the evidence against each accused was examined with the guiding principle that mere spectators must be distinguished from actual members of the unlawful gathering. On appeal filed by the convicted persons, a Division Bench of the High Court rendered a judgment that extended to eighty-three printed pages. Although the judgment was thorough, it could have been expressed more succinctly without compromising its quality. The High Court delved into meticulous detail but, as will be seen, committed a serious mistake that resulted in the acquittal of twenty appellants, many of whom had been identified as playing leading roles in the incident that formed the basis of the charge against them.

The High Court observed that the Sub-Inspector, the Circle Inspector and the Deputy Superintendent of Police, who successively handled the investigation, were not sufficiently cautious in conducting their work. The investigation was described as lacking thoroughness and promptness, leading to the recording of witness statements in a highly haphazard manner and the omission of many matters of importance to the case. The Court further noted that Sub-Inspector Raj Bahadur Singh, motivated by indirect motives, had distorted the witnesses’ statements, attempting to introduce variations and create loopholes that could substantially damage the ultimate outcome of the case. While the Court primarily relied on the testimony of four eye-witnesses who were women related to the victims, it also considered the evidence of Paiyyan Devi and Shanti Devi, stating that their testimonies should be accepted only when supported by other evidence on record. Accordingly, the Court was less certain about these two witnesses than about the others. Having concluded that the four eye-witnesses were generally reliable and that the record of their statements made by the investigating Sub-Inspector was unreliable, the High Court erred by acquitting all accused whose names did not appear in that police record. In effect, the Court rejected dependable testimony on the basis of a record it had already condemned as unreliable, thereby allowing the Sub-Inspector to succeed in his effort to favor the accused. Typically, accused persons may challenge the testimony of witnesses presented in court by referring to the statements those witnesses gave to the investigating police officer, as those early statements constitute valuable material for testing the veracity of the witnesses examined.

In the trial court, the court examined the statements of witnesses, giving particular attention to those statements that differed from the witnesses’ earlier statements recorded during the police investigation; however, the statements made during the police investigation were not treated as substantive evidence. Consequently, the record prepared by the police investigating officer was to be considered only for the purpose of evaluating the evidence actually presented in court. When the police record was found to be suspect or unreliable, as it was in the present case because it was deliberately perfunctory or dishonest, its evidential value was greatly reduced. The court, therefore, had to assess the testimony offered against each accused by keeping in mind that the earlier police-recorded statements were tainted and could not be given the weight they would normally command in weighing all material against an individual accused. The High Court’s reliance on the Sub-Inspector’s record to disregard the testimony given in court was thus a serious error. On appeal, the High Court, as previously noted, had acquitted those persons whose evidence from the four eye-witnesses did not align with the statements recorded by the investigating Sub-Inspector, even though some of those persons had been attributed leading roles in the shooting incident. After a detailed examination of the evidence against each accused, the High Court delivered its judgment on 10 September 1954 and, presumably at the request of counsel for the seventeen persons against whom the High Court upheld convictions, recorded the final order of the judgment stating, “Leave to appeal to Supreme Court is granted.” At the commencement of the appeal, counsel for the State of Uttar Pradesh, the respondent, raised a preliminary objection to the hearing of the appeal on the ground that the certificate granted, as quoted above, did not fully comply with the requirements of Article 134(1)(c) of the Constitution. The objection contended that the High Court should have granted the certificate only after examining the case of each individual accused, meaning that the High Court should have exercised its judicial discretion only after being satisfied that the certificate sought was appropriate for every convicted accused. The appellants argued that the High Court had exercised its power under Rule 28 of Chapter 23 of the Rules of the Allahabad High Court, which required that counsel for the appellant pray for leave at the time the High Court’s judgment was delivered. Since leave had been granted in accordance with that practice, the appellants further contended that it should be assumed that the High Court had considered the case of each individual accused before granting the certificate.

The respondent argued that the issue should be resolved by applying the principles laid down in the Supreme Court’s decision in Nar Singh v. State of U.P. The Court in that precedent set out several propositions. First, it held that even after a certificate of appeal has been granted, the Supreme Court retains the authority to examine whether the certificate was properly issued and whether the necessary conditions for its grant have been satisfied. Second, the only essential condition for a certificate under Article 134(1)(c) is the exercise of judicial discretion by the High Court. Third, because this discretion is judicial, it must be exercised in accordance with well-established principles that govern the exercise of such discretion. Fourth, if the discretion is exercised properly and on appropriate lines, interference by the Supreme Court is permissible only on very strong grounds. The present matter therefore required the application of these principles to determine whether the High Court’s certificate was correctly granted.

Article 134(1)(a) and (b) enumerate two conditions that confer a right of appeal to the Supreme Court, indicating that, ordinarily, no right of appeal exists in other types of cases. The sole exception is clause (c), which provides that an appeal “shall” lie when the High Court “certifies” that the case is suitable for appeal. The term “certifies” is a forceful term, implying that the High Court must consciously consider the question and that the reasons for its order must be evident on the face of the certificate. The Supreme Court must first be satisfied that the High Court has applied its mind to the matter, rather than acting mechanically, and second, that the High Court has identified a specific difficulty or question of significant importance that warrants the Supreme Court’s intervention. A simple statement that “leave to appeal is given” without further explanation would amount to the High Court usurping the constitutional function of determining which cases merit Supreme Court review, contrary to the Constitution’s limitation of the normal right of appeal to sub-clauses (a) and (b), leaving clause (c) for extraordinary circumstances. In the present case, the High Court’s order consisted merely of the words “Leave to appeal to the Supreme Court is granted,” without indicating what considerations prompted the grant or what exceptional issues, in the High Court’s view, required settlement. The certificate did not contain any certification that the case was fit for appeal, nor did it provide reasons or identify points of outstanding importance, leaving the Supreme Court unable to ascertain the basis for the High Court’s discretion.

In this matter the Court observed that the omission by the High Court suggested that it had not appreciated the duty imposed on it by Article 134(1)(c) of the Constitution, nor had it understood that its discretion must be exercised in a judicial manner rather than mechanically. Because of this shortcoming, and in line with the Court’s earlier decision, the appeal could not be regarded as properly certified, and consequently it could not be accepted as an appeal under Sub-article (c).

The Court then examined, with due regard to the position of the learned Judges, whether any circumstances existed that might have justified granting a certificate under Sub-article (c). The appellants had raised four grounds before the Court, three of which were purely factual in nature. The Court held that a certificate under Sub-article (c) cannot be issued where the High Court harbours any doubt about the facts of the case. When the judges are uncertain about the factual matrix, their duty is to acquit, not to convict and thereafter issue a certificate, because they cannot reach a conclusive finding on the facts.

The fourth ground presented to the Court concerned a question of law. The Court noted that this legal issue was not reflected in the mind of the High Court, as the judges had neither discussed nor referred to it in their reasoning. Accordingly, the Court was compelled to conclude that the appeal did not fall within Sub-article (c). Nevertheless, the Court retained its discretionary power to consider whether the matter was suitable for the exercise of its special powers under Article 136(1), and it proceeded to undertake that examination.

Counsel for the appellants posed four specific questions to the Court. First, they argued that the lower courts erred in relying on the testimony of four eye-witnesses whose statements made in court conflicted with the statements recorded by the investigating Sub-Inspector. Second, they contended that the conviction and sentencing of the appellants based on those eye-witnesses’ testimony was erroneous because the same evidence had not been applied to other accused persons who were acquitted by the lower courts. Third, they submitted that the lower appellate court, after disbelieving the eye-witnesses’ evidence with respect to certain accused persons to whom specific parts of the offence were attributed, should not have accepted that evidence against other accused persons for whom no such parts were assigned. Fourth, they claimed that the lower courts committed a legal error by convicting individuals who had not been shown to have performed any specific acts constituting a part of the unlawful assembly, and whose conviction was based solely on their mere presence in the assembly.

After considering these submissions, the Court found that the first three grounds did not establish a case for granting special leave. However, the Court concluded that the fourth ground did raise a substantive legal issue warranting the exercise of its special jurisdiction under Article 136(1), consistent with established legal principles.

Mere presence in a meeting does not, by itself, render a person a member of an unlawful assembly unless it is demonstrated that the person performed an act or omitted to perform an act which would make him a member of such an assembly, or unless the incident falls within the ambit of Section 142 of the Indian Penal Code. In the present matter there is no doubt that the original inhabitants of the village harboured hostile feelings toward the newly arrived refugees. The site plan marked as Exhibit P-18, which shows the layout of the refugee houses, makes it clear that the dwellings of the accused persons and those of the refugees were situated in close proximity to each other. The house of Mangal Singh, which was the location of the occurrence, was encircled by the houses belonging to the original villagers, including several of the accused persons. According to the prosecution’s narrative, one group of members of the unlawful assembly entered the first floor of Mangal Singh’s house by means of the roof of the adjacent house of Parichhat Lodhi, which lies to the south-east, and there they attacked the three persons who were present. The second group of miscreants is described as gathering at the front door of Mangal Singh’s house, which faces west. Directly opposite the front of Mangal Singh’s house stands the house of Mahabir, the appellant, while on the remaining three sides of that house are the residences of Baladin Lodhi, Parichat Lodhi and Ajodhia Lodhi, who are also appellants. Consequently, the site of the incident was surrounded on every side by the houses of the appellants. Even if members of the appellants’ families and other village residents assembled at that place, none of those persons could be automatically condemned as members of the unlawful assembly merely because they were present. Therefore, it was essential for the prosecution to introduce evidence that would show that each of the appellants before this Court had either performed an overt act or been engaged in conduct that furthered the common object of the unlawful assembly. The evidence recorded by the trial court is presented in very general terms, stating that all of these persons, together with many others, were miscreants and were armed with deadly weapons such as guns, spears, pharsas, axes, lathis and similar implements. Such blanket or omnibus evidence must be examined very closely so as to eliminate any possibility of false or mistaken implication. It is beyond dispute that emotions were running high on both sides of the conflict. The lower courts, on the basis of reliable proof, have found that six male refugees who were killed that morning were trapped inside Mangal Singh’s house at the time of the attack. Consequently, this Court must scrutinise the case of each individual accused to ensure that mere onlookers who did not join the assembly and who were unaware of its purpose have not been incorrectly labelled as members of the unlawful assembly that perpetrated the heinous crimes that morning. The findings of the lower tribunals indicate that the common object of the unlawful assembly was not only to kill the male members of the refugee families but also to destroy any evidence relating to those crimes.

In the Court’s view, any person who participated in the removal of the dead bodies or who helped in burning those bodies was also acting in furtherance of the common objective that had driven the unlawful assembly. The Court held that there was no doubt that the individuals who broke into the first floor of Mangal Singh’s house and killed the three refugees who had gone upstairs for breakfast were deeply involved in the conspiracy and therefore qualified as active members of the unlawful assembly. The persons specifically placed in this category were Baladin Lodhi, Parichhat, son of Lallu Lodhi, Ajodhia Lodhi, and Parichhat, son of Sadhoo. Accordingly, the Court affirmed that their convictions and sentences imposed by the lower court were proper.

The appellant Raja Ram, who was a close neighbour of Mangal Singh, was assigned a distinct role in the incident that morning. According to the evidence, he dragged Mela Singh out of the grain room on the first floor and, when Mela Singh remained alive after being shot, Raja Ram struck him with an axe. The Court noted that Raja Ram had a history of hostility toward the refugee families, having been involved in litigation with some of them and having maliciously alleged that the two daughters-in-law of Mangal Singh were Muslim girls abducted from West Pakistan. Although the High Court had expressed some doubt about these particular allegations because the police records did not specifically assign those acts to Raja Ram, the High Court consequently reduced his death sentence to life transportation under Section 302 read with Section 149. Nonetheless, the Court observed that his convictions under Sections 148, 201 and 452 of the Indian Penal Code were upheld, and that his prominent presence on the morning of the attack made it unsurprising that he played a leading part. Consequently, the Court upheld both his conviction and his sentence.

The appellant Uma Charan was identified by all four eyewitnesses as having taken a leading role in the occurrence. He was alleged to have struck Mela Singh on the head with a sword and to have participated in the burning of the dead bodies, an act that formed an essential component of the common object of the unlawful assembly. The Court therefore concluded that his presence in the assembly was beyond doubt. Although only one eyewitness consistently testified to the sword attack and the other eyewitnesses’ statements on that point were not recorded in the police diary, the High Court had nevertheless reduced his punishment to the lesser sentence prescribed under Section 302 read with Section 149, whereas the trial court had originally sentenced him to death. The Court also noted that his convictions under Sections 148 and 201, read with Section 149, were upheld. Since his involvement was not that of a mere spectator, the Court affirmed that his appeal must be dismissed.

In the case of the appellant whose sentence had previously been reduced, the Court noted that the trial judge had imposed the extreme penalty of death under that Section. The appellate tribunal affirmed his conviction under Sections 148, 201 / 149 and therefore held that he was not a mere spectator in the unlawful assembly. Accordingly, his appeal was dismissed.

Appellant Mahabir Pershad owned a cattle shed situated to the north of Mangal Singh’s house, while his residence stood directly opposite that house. The two dead bodies of the victims located on the first floor of Mangal Singh’s house were allegedly thrown into Mahabir Pershad’s cattle shed and subsequently dragged out of the shed to be deposited in the open space between the houses of Mannu Teli and Raja Ram, who were also appellants. It was further alleged that Mahabir Pershad had dragged the body of Mela Singh from the place where the latter had been concealed. The High Court, however, found that this particular allegation had not been “conclusively proved”. On the basis of that finding, the High Court reduced the appellant’s sentence under Section 302 / 149 from death to transportation for life. The Court also observed that Mahabir Pershad was present at the time the dead bodies were being disposed of, and it upheld his convictions under Sections 148, 302 / 149, 201 / 149 and 452 of the Indian Penal Code. The record showed that he had been present from the beginning to the end of the episode. Consequently, his appeal was likewise dismissed.

Appellant Narain Das, who served as the Mukhia of the village, was a close neighbour of the refugee families and lived opposite the houses of Sant Singh and Mela Singh, two of the victims. The prosecution assigned to him the specific role of inciting the mob from near the “chhabutra” of Mahabir. Four eye-witnesses directly implicated Narain Das in the crime and identified him as the person who urged the mob to act, thereby refuting any suggestion that he was merely a onlooker. Because he was a neighbour of several victims, the witnesses who testified against him would have known him well, eliminating the possibility of a mistake in identification. The lower courts were therefore fully justified in accepting the testimony of the four eyewitnesses that Narain Das participated in the unlawful assembly. His appeal was consequently dismissed.

Appellant Ramola, the village chowkidar, failed to inform the police of the developments in the village as they unfolded. Instead, he waited until 5 p.m. before reporting to the police station that everything in the village was fine, effectively concealing the events that had occurred since early morning. The courts below concluded that his false report was intended to shield himself and the other miscreants from detection. Moreover, Ramola did not leave the village until the crime had been completely finished, thereby preventing higher police authorities from intervening before all traces of the offence were destroyed. The Court characterized this serious dereliction of duty as more than mere negligence. Accordingly, he was convicted under Sections 148, 302 / 149 and 201 / 149, and his appeal was dismissed.

In this case the lower courts were considered to have a sound basis for finding the accused guilty under Sections 148, 302 together with 149 and Sections 201 together with 149, and for imposing the corresponding sentences; consequently the appellant’s challenge to those convictions was rejected. The next appellant, Vir Singh alias Vira Lodhi, was alleged by the prosecution to have initiated the sequence of events by bringing the notorious Shambhu Lodhi into the village a few days before the incident that occurred on 4 February 1952. It was further claimed that he loaded three of the deceased persons onto his cart and conveyed them to the cremation ground located near the pond, and that the police subsequently recovered this cart in front of a house, noting that it bore stains of human blood. One of the four eyewitnesses also testified that they had seen Vir Singh standing on the roof of Mangal Singh’s house. Because of these particulars the court could not treat him as merely a passive observer in the assembly, and the High Court therefore dismissed his appeal. The third appellant, Mannu Teli, was specifically implicated in the act of transporting three of the dead bodies on his cart and placing them upon the funeral pyre. The police also recovered the wheels of his cart, which had been discarded in a tank. Accordingly, the High Court upheld the conviction against him and refused his appeal. The matters concerning the four remaining appellants—Thakur Das, Ishwari Prasad, Mulloo and Jagdish—required separate consideration. No distinct role in the criminal occurrence had been assigned to any of them, nor had any overt act been attributed to them by the prosecution. Thakur Das, although a resident of a different village and police jurisdiction, owned cultivated land in the village of Goran and might have been present merely as a spectator who became unintentionally caught up in the crowd. In view of the absence of specific evidence against them, the court decided to accord them the benefit of doubt and to acquit them. The final appellant, identified as Jangi in Criminal Appeal No. 119 of 1954, was singled out by all four eyewitnesses and was alleged to have struck the victim Mela Singh with an axe. The High Court reduced his original death sentence to transportation for life on the ground that the eyewitness statements concerning his precise role were not corroborated by the police records. Nonetheless, the court observed that even the Deputy Superintendent of Police had not formally recorded the individual participation of each accused, making it unsurprising that the police files did not corroborate the witnesses, yet there was no inconsistency with the statements made during the investigation. The learned Sessions Judge therefore concluded that Jangi could not be described as a mere sight-seer but was, in fact, one of the ring-leaders. In the final result the appeals of Thakur Das, Ishwari Prasad, Mulloo and Jagdish were allowed, their convictions and sentences were set aside and they were to be released, while the convictions and sentences of the remaining appellants were confirmed and their appeals dismissed.

In the present case, the Court concluded that the judgments of conviction and the death-penalty orders against Thakur Das, Ishwari Prasad, Mulloo and Jagdish must be set aside. Consequently, the Court directed that those four persons be liberated without delay, that is, they were to be released forthwith from custody. By contrast, the Court found that the findings of guilt and the punishments imposed on the remaining appellants were supported by the evidence on record. Accordingly, the Court affirmed the convictions and the sentences that had been imposed on those other respondents. As a further consequence, the Court rejected the respective appeals filed by the latter group of appellants. In sum, the order provided for immediate release of the four appellants whose convictions were annulled, while maintaining the earlier convictions and sentences of the other accused and dismissing their applications for relief.