Judgment

MAHAJAN, J. : These two appeals under Art. 134 of the Constitution have been preferred against the judgment of the High Court of Judicature at Nagpur, dated 5-2-1951, setting aside the acquittal of the appellants on charges of rioting and murder, and convicting them for the same.

2. The facts are these : One Wazir Ali was lambardar Malguzar of Mauza Dhadi, a village in tehsil Arvi of district Wardha (Madhya Pradesh). His widow Wazdi Begum succeeded him after his death to that office. She died in 1947, and the malguzari of the village was inherited by her nine sons, viz. Hasan Ali (P. W. 22), Rashid Ahmad (P. W. 23), Asadali, Bashir Ahmad, Nazir Ahmad, Ashraf Ali, Hafiz Ali, Aman Ali and Shiraz Ahmad. The last three were murdered 25-7-1949, two at the home where Hafiz Ali was on residing and Amam Ali at his own house.

3. According to the prosecution they were murdered in the following circumstances. The villagers of Dhadi had a dislike for the malguzars, as some amount of grazing dues and rents were in arrear from them. The malguzars had not been able to meet the Government demand for land revenue and on 16-7-1949 the Sub-Divisional Magistrate, Arvi, ordered the sale of the malguzari rights of mauza Dhadi on account of this default on the part of the malguzars. On 24-7-1949 the station house officer, Ashti, one Dongar Singh, visited the village in connection with the investigation of a complaint filed by Hafiz Ali against a number of villagers for forcibly removing timber from a forest owned by the malguzars and converting the wood into charcoal. He arrested a number of persons including some of the accused. They were, however, released on bail on the 25th morning and accused Bhimrao Kadu stood surety for some of them.

The sale of the village ordered by the Sub-Divisional Magistrate had to take place after the rainy season. In order to avert this ale and meet the Government demand, Hafiz Ali, Aman Ali and Bashir Ahmad held consultations and decided to make an effort to realise the areas of rent and grazing dues from the villagers. Accordingly a demand for payment of these arrears was made by making a proclamation in the village by beat of drum on the morning of the 25th July. The demand for payment of arrears by a public proclamation excited the ire of the villagers who also held consultations between themselves and they decided to resist it. It is said that a meeting of the villagers took place in the morning at the house of Govinda Gaikwad (accused 22), where it was decided that the demand should be resisted and if necessary, the malguzars should be severely dealt with.

Hafiz Ali and Aman Ali, being apprised of this meeting, held consultations inter se and met at the house of Bashir Ahmad for the purpose of devising means to meet the situation that had arisen. A report was written out to be sent to the police. Aman Ali alongwith Jalani, a servant of Hafiz Ali, was deputed to take the report personally to Ashti. Leaving Jilani and Shiraz Ahmad and Bashir Ahmad s house Amam Ali returned to his house to dress up and then proceed to the thana. Hafiz Ali also came back from Bashir Ahmad s house and on his way be found the accused assembled at the house of Abdul Gani (accused 6). Some members of the mob attacked him with sticks and struck him a blow. Hafiz Ali thereupon ran into his house, and shut the door. The mob surrounded the house, dug out the small door and removed it. Hafiz Ali was standing near the door. Bhimrao Kadu (accused 5) struck him a blow with a spear and then all the accused entered the house, and beat Hafiz Ali with swords, spears, sticks and stones and wounded him grievisouly. They then left him in that condition and marched to Amam Ali s house and burst into it. They struck him down with swords, spears and lathis and killed him.

Shiraz Ahmad and Jilani on hearing the uproar and finding that the accused had left Hafiz Ali s house arrived at his house and while they were there the crowd returned to Hafiz Ali