Chachaji

Case No. 120/3 Crown versus Surender Nath Jauhar

of 26.9.1942 Mangat Ram

Deva Singh

Naranjan Singh

Ghafoor and

Hira Lal

Under Sections 325-B/149 I.P.C.

and 332/149 I.P.C.

Judgement

In this case the following persons stand charged under section 325-B read with 149 I.P.C., and under Section 332 read with 149 I.P.C.:-

1. Surender Nath Jauhar son of Lala Kahan Chand

2. Mangat Ram son of Ganeshi Lal

3. Deva Singh son of Bulazi Das

4. Naranjan Singh son of Natha Singh

5. Ghafoor son of Maula Dakhab and

6. Hira Lal son of Hukmi.

Briefly, told, the prosecution case is as follows :-

On 17-9-1942 Rai Sahib Lala Gopal Das, the then Additional Superintendent Police, C.I.D., Delhi received instructions from Mr. Mellor, Superintendent Police/C.I.D. to arrest Surender Nath Jauhar under Rule 129 of the Defence of India Rules, R.S. Gopal Das gave instructions to certain police officers to keep a watch on Jauhar’s residence and his movements and to inform him (R.S. Gopal Das) of Jauhar’s whereabouts as soon as they were ascertained. At about 1 p.m. on the following day (18-9-42) R.S. Gopal Das received a telephonic message from one of his foot-constables to the effect that Jauhar was then to be found in his office. Taking Sub-Inspector Bhagwan Das Jain with him, R.S. Gopal Das proceeded to the New Delhi Police Station where, collecting other police officers, they proceeded to Jauhar’s office in Connaught Place. When nearing the office, the party was informed by H.C. Ram Lubhaya that Jauhar had just left in a small car, bearing registered number DLH-3803 for his house. Acting to this information R.S. Gopal Das, Inspector Sita Ram, S.I. Bhagwan Das Jain and A.S.I. Rashid-ul-Hasan drove to Jauhar’s house in Central Lane, New Delhi. On arrival there, Inspector Sita Ram and A.S.I. Rashid-ul-Hasan were deputed to watch the front of the house while S.I. Bhagwan Das Jain and Shri R.S. Gopal Das went to the rear of the house. They were then informed by F.C. Nazir Ahmed that Jauhar has just driven away in his car towards Babar Road. Thereupon, R.S. Gopal Das and S.I. Bhagwan Das Jain, in R.S. Gopal Das’s car, proceeded in that direction. They were unable to catch up with Jauhar, but R.S. Gopal Das knowing that Jauhar was busy in constructing a house at Mehrauli proceeded there. They accidentally over-shot that house and, on coming to know this, R.S. Gopal Das reversed his car and returned. He and his companion located the house under construction where they were informed that Jauhar was not there. They then set back towards Delhi and, when at a distance of about one mile from the house, R.S. Gopal Das noticed car bearing registered number DLH-3803 coming from the opposite direction, as it passed, R.S. Gopal Das noticed that Jauhar was driving it. Gopal Das reversed his car and followed Jauhar. In order to get to his house it was necessary for Jauhar to leave the main metalled road and travel on a kachcha road; doing so, he stopped his car in front of the house under construction. R.S. Gopal Das also drove his car on the kachcha road and stopped behind Jauhar’s car. As Jauhar was alighting from his car, R.S. Gopal Das and S.I. Bhagwan Das Jain caught him. Jauhar enquired what the matter was about and R.S. Gopal Das informed him that he was being arrested under Rule No. 129 of Defence of India Rules. Thereupon Jauhar raised an alarm on which 8 or 9 persons working at his house came from inside and near the house and immediately began assaulting R.S. Gopal and S.I. Bhagwan Das Jain. These persons were armed with saw, karni, dandas and lathis. Since the odds were so much against the police officers, Jauhar was rescued. Jauhar called to his driver who reversed his car and drove Jauhar away to Delhi. With difficulty R.S. Gopal Das and S.I. Bhagwan Das Jain effected their release and getting into their own car, pursued Jauhar. They did not catch up with him on route but were directly behind him when he entered his house in Central Lane. Inspector Sita Ram and A.S.I. Rashid-ul-Hasan had been left at this house and, when Jauhar arrived, R.S. Gopal Das called to these two police officers to apprehend Jauhar. Inspector Sita Ram and A.S.I. Rashid-ul-Hasan caught Jauhar before he had time to alight from his car. In circumstances which formed the subject matter of another charge against Jauhar, Mangat Ram (driver) and others, the police party, with Jauhar and Mangat Ram, left the house in Central Lane ostensibly for the New Delhi Police Station. In this judgement I do not intend to comment on the evidence with respect to the incident at the house at Central Lane where Jauhar was arrested and thereafter, except perhaps to make some cursory remarks, from my own order dated 10-1-1944 in the second case (File No. 119/3 of 1942 of this court).

All accused plead not guilty to the charge and have offered a more or less similar defence. In brief, the defence story is that when R.S. Gopal Das and S.I. Bhagwan Das Jain arrived at the house under construction at Mehrauli, they were unknown to Jauhar who questioned them as to who they were and what they were doing. Thereupon S.I. Bhagwan Das Jain drew his revolver and levelling it at Jauhar’s chest demanded “handsup”. In the meantime R.S. Gopal Das addressing S.I. Bhagwan Das Jain said “Shoot him, shoot him! Why don’t you shoot him?” On this Jauhar immediately caught the revolver and grappled with S.I. Bhagwan Das Jain knocking him down. R.S. Gopal Das was armed with a small danda with which he began beating Jauhar. In his effort to release Jauhar’s grip on the pistol, S.I. Bhagwan Das Jain hit Jauhar’s hand. Jauhar, however, managed to wrest the pistol from S.I. Bhagwan Das Jain. In this interval some of Jauhar’s labourers arrived at the spot. Thereafter R.S. Gopal Das asked for an “armistice” and the parties began to parley. It has further been alleged by the defence that R.S. Gopal Das apologised for having behaved in this manner and requested Jauhar to allow the matter to drop. He also begged “with folded hands” the return of the pistol. After further talks it was decided that if the pistol was returned to S.I. Bhagwan Das Jain, Jauhar would be allowed to go to his house in Central Lane, to change his clothes and to obtain his bedding and then proceed to his office where he had ten minutes important work. After that he (Jauhar) could be legally arrested and taken to the Police Staion. R.S. Gopal Das, it is stated, readily gave his consent to this proposal. The pistol was then returned and R.S. Gopal Das reversing his car moved it out of the kachcha to allow Jauhar’s car to proceed. In this order Jauhar in his car and two police officers in R.S. Gopal Das’s car arrived at Jauhar’s house in Central Lane. A further misunderstanding appears to have taken place at this house and R.S. Gopal Das, on the pretext of a crowd beginning to collect, did not allow Jauhar to go into the house and both cars then drove away with Jauhar and the police officers to Jauhar’s office in Connaught Place.

With respect to the incident at the Mehrauli house, which of course forms the basis of the charges in this case, I have examined R.S. Gopal Das, P.W. 1., S.I. Bhagwan Das Jain, P.W. 2 who are two police officers chiefly concerned, Ratan Singh Lambardar, P.W. 4 and Fariduddin Contractor P.W. 5. The two last named witnesses depose to having seen the occurrence from the main metalled road or from a field close to the house. In this matter their statements are discrepant.

I shall first comment on the statements of these two witnesses. Ratan Singh P.W. 4, tells me that he was standing in the field close to the house when he witnessed the incident, whereas Fariduddin P.W. 5, states that he was standing close to Ratan Singh and both were on the main metalled road. I inspected the spot on 7-4-1944 and, as will be seen from my inspection note, the house is very nearly 100 yards from the main metalled road although Fariduddin has the audacity to state it is only 15 paces away. The land between the main metalled road and the house has certainly at the time or the other been under cultivation. The Patwari of the Halqa Mannu Lal P.W. 24, giving evidence from the Khasra Cirdswri of 1943 states that chari of these fields is between the house and the main metalled road. He further states that in the month of September the chari crop is usually of a man’s height. This finds support in the statement of Mohmad Fazluddin, who is a prosecuting witness and he states that when he visited the spot soon after the occurrence to prepare a plan he found the crops in the fields surrounding the house to be 2 or 3½ feet high. The Patwari goes on to say that, standing on the metalled road opposite the house, a person cannot see the compound directly opposite the house owing to chari crops growing in the intervening fields. This Patwari has frequently passed on the road in front of the house and since his statement agrees with my observations when I visited the spot, I must accept it as correct. My inspection note shows that if chari or other crop of man’s height was growing in the fields in rest of the house, that is, the fields between the house and the main road, it would be quite impossible for a person standing on the main road to see what was happening at any part of the house. I must therefore take it that whether Ratan Singh and Fariduddin were standing on the main metalled road or in the chari crops they could not possibly have seen the incident. These two witnesses appear to be chosen witnesses, yet strangely enough they are well known to each other. Fariduddin admits that he has known Ratan Singh since his childhood and that he has had business dealings with him. To me it appears highly suspicious that these two witnesses, so intimately known to each other and one of them, namely Ratan Singh also known to the police officers concerned in this case, should have by chance arrived at the spot at the critical moment of the assault on the two police officers. I may further note that neither of these two witnesses spoke to the police officers at the time nor did they, on their own showing, speak to anyone else or make any report regarding the matter. How in these circumstances they came to be witnesses requires an explanation which has not been furnished on this record. Apart from this, however, the reasons given by these two witnesses for their presence at the spot on that particular day are not only unsatisfactory but in the case of Fariduddin most discrepant and contrary. I may say at once, therefore, that I entirely disbelieved Fariduddin and Ratan Singh and I am constrained to remark that their inclusion as eye-witnesses is nothing short of police padding which is most regrettable. I may further note with respect to Ratan Singh that although he is a Lambardar, he did not intervene when the fight was in progress nor did he as a Lambardar make any report at any Police Station or to his immediate superior, the Patwari of this incident. He appears to have failed in his official duty.

Having eliminated from consideration the statements made by Ratan Singh and Fariduddin witnesses I am left with the statements of R.S. Gopal Das and S.I. Bhagwan Das Jain coupled with the circumstances of this case. That there was a fight or that some rough handling did take place there can be no doubt whatever. The only point for determination is whether the fight took place in rescuing Jauhar or whether it took place in the manner deposed to by the defence, that is, in disarming Bhagwan Das Jain of his revolver so as to prevent any serious or fatal injury. In determining this point various circumstances must be taken into consideration. The first of these are the injuries which were found to exit on R.S. Gopal Das and S.I. Bhagwan Das Jain. Dr. J.J.F. Dunn, Assistant to Civil Surgeon, P.W. 12, examined R.S. Gopal Das at 10-20 p.m. on 18-9-1942, and S.I. Bhagwan Das Jain at 10-30 p.m. on that same night. On the person of R.S. Gopal Das he found:-

(1) Multiple transverse superficial linear scratches over an area 4” x 1½” on the inner part of the left shoulder blade, several of these scratches averaged 1½” inch long.

(2) Bruising and abrasions 1½” x 1½” on the back of the left elbow

(3) Transverse bruise 5½” x ¼” across the upper part of the right buttock.

(4) Swelling on outer side of right wrist. 2” x ½” vertical.

R.S. Gopal Das states that he received a blow with a saw and also a blow with a lathi on his back. He makes no mention whatever of any other injury received by him.

Injury No. (1) that is, the multiple transverse superficial linear scratches is stated to be due to the blow with the saw, R.S. Gopal Das states he was given only one blow with the saw on his back. Dr. Jamna Das, D.W.1 on being referred to this injury states that in his opinion it could not have been caused in this manner. The same opinion is given by Dr. N.C. Pandey, D.W.10. The very nature and appearance of the injury does not support the theory of a single saw blow. If multiple transverse superficial linear scratches, each being about 1½ inches long, existed on R.S. Gopal Das’s left shoulder blade, the injury would indicate not a blow with a saw but a rubbing of the teeth of the saw against the shoulder blade. A direct blow with a saw would result in the points of the teeth of the saw causing very small injuries, resembling punctured wounds. Injury No. (3) on R.S. Gopal Das, that is, the transverse bruise 5 ½” x ¼” across the upper part of the right buttock could of course have been caused in the manner mentioned by R.S. Gopal Das, that is a lathi blow. The other two injuries Nos. (2) and (4) are not accounted for, but were doubtless caused in the fight. More important, however, are the injuries on S.I. Bhagwan Das Jain and S.N. Jauhar accused. Injury No. (1) on S.I. Bhagwan Das Jain was due to teeth bite. Dr. Dunn, who also examined Jauhar on the night of the occurrence, while deposing to injuries on his person, states in cross-examination that he did not find any marks of teeth-biting on Jauhar’s person, yet on referring to the injuries it would appear that his injury No. (1) was due to teeth-bite. This must be correct since S.I. Bhagwan Das Jain admits he bit Jauhar on the hand. The defence story may be recalled. It is that Jauhar was grappling with Bhagwan Das Jain in an attempt to disarm Bhagwan Das Jain of his revolver. The prosecution case in that Bhagwan Das Jain caught Jauhar and, when Jauhar was attempting to free himself, he bit Bhagwan Das Jain. The injuries on both these persons may be interpreted as having been caused in either of these two ways and with such meagre evidence on record, I find myself unable to arrive at a decision on this part. Bhagwan Das Jain and R.S. Gopal Das vehemently deny having any weapon in their possession. On the other hand, Lekh Ram D.W. 5 Jagan Nath D.W. 6, Sri Chand D.W. 7, and Sulhar D.W. 8 depose to one of the police officers being armed with a pistol. The bite marks on the hand of Bhagwan Das Jain and Jauhar could be caused by Jauhar attempting to take away Bhagwan Das Jain’s pistol and Bhagwan Das Jain attempting to retain possession of it, as also due to Jauhar attempting to release Bhagwan Das Jain’s grip on him. I see no reason to discredit R.S. Gopal Das and Bhagwan Das Jain on this point. At the same time I have not sufficient material on the record to discredit the defence witnesses who depose to the contrary. It would therefore appear that the injuries found on the persons of R.S. Gopal Das, S.I. Bhagwan Das Jain and Jauhar were received in the struggle and fight which resulted from Jauhar’s effort to disarm Bhagwan Das Jain of his pistol. I am told by learned counsel for accused that the injuries of R.S. Gopal Das could be explained by him coming to Bhagwan Das Jain’s assistance in retaining possession of the pistol. This is quite a reasonable explanation for the injuries and cannot be rejected as entirely unsatisfactory, in view of my observations with respect to the pistol. The matter however is open to considerable doubt and I must, in all fairness, give this benefit to the assessed. With the exception of the injury mark on Jauhar, which has been admitted by Bhagwan Das Jain to have been given by a bite, no explanation has been offered for injuries on this accused person. With respect to the injuries on Mangat Ram no explanation has been offered by way of the prosecution witnesses, Mangat Ram has led good evidence in support of his alibi and indeed the circumstances show that Mangat Ram was not present at the Mehrauli house. His injuries appear to have been inflicted during the second incident at Connaught Place and upon which I have already adjudicated (see my discharge order dated 10-1-44 in case No. 119/3, of 1942 of this court).

I must now consider the time factor, learned Counsel for accused has mentioned this only by way of an auxiliary argument. I, however, consider it an important circumstance to determine whether or not Jauhar left the house at Mehrauli in the manner attributed by the prosecution, that is, as an escaped person and a fugitive from justice. As stated by R.S. Gopal Das and S.I. Bhagwan Das Jain, they arrived at the house at Mehrauli round-about 1 p.m. It seems to me, however, that the time was later and must have been closer to 1-30 p.m. since R.S. Gopal Das also states that it was at about 1 p.m. when he received information in his office that Jauhar would be found at this office. A rough estimate of the time it would take R.S. Gopal Das to proceed to the Police Station, then to Jauhar’s office, house at Central Lane and the house at Mehrauli, would bring the time of his arrival at Mehrauli closer to 1-30 p.m. It has been admitted and indeed proved, that after the incident Jauhar arrived at his house at Central Lane between 3-30 and 4 p.m. This means that two hours were spent at the Mehrauli house and on the way from there to the house at Central Lane. It has further been admitted by R.S. Gopal Das and S.I. Bhagwan Das Jain the actual fight at the house at Mehrauli did not take more than four or five minutes. Assuming that it would take a quarter of an hour to travel a distance of 7 miles from the Mehrauli house to the Central Lane house there would still be 1¼ hours, or for argument sake at least 1½ hours, to be accounted for. These 1½ hours were undoubtedly spent at the house at Mehrauli. How this time was spent has been explained by the defence witnesses, but the prosecution evidence on this point is significantly silent. To repeat myself, I again refer to the defence story. This, with respect to the pistol, is that after Jauhar has succeeded in dis-arming Bhagwan Das Jain he was requested by R.S. Gopal Das to return the pistol because, being a police officer, it would bring him into disgrace were it known that their pistol had been taken from them. These talks are stated by the defence witnesses to have occupied the major portion of the time spent at the house at Mehrauli. It is not difficult to conceive of this and here again is a circumstance which would lend great weight to the story of one of the police officers being armed with a pistol. I however, repeat that I find myself unable to come to a definite conclusion as to whether or not Bhagwan Das Jain was actually armed. As circumstance intimates that he was and that because he levelled his revolver at Jauhar, this struggle ensued. It could also be, however, that after Jauhar’s arrest and his subsequent release, the two police officers found themselves so out-numbered that discretion induced them to enter into a compromise with the accused. If I accept the theory that Jauhar released himself or was rescued by his co-accused it becomes necessary to determine if any offence was committed. In this matter learned counsel for accused has referred me to the evidence on record which clearly shows that when R.S. Gopal Das and Bhagwan Das Jain proceeded to arrest Jauhar it was not within Jauhar’s knowledge that they were police officers acting in the discharge of their duty. It certainly appears that Jauhar was known to R.S. Gopal Das and Bhagwan Das Jain, but there is no evidence to indicate that the reverse was also the case, that is, if Jauhar knew that R.S. Gopal Das and Bhagwan Das Jain were police officers. In order to circumvent this, R.S. Gopal Das mentioned in his very first statement at the Police Station that Jauhar addressed him by name, thereby giving to Jauhar the knowledge that he (R.S. Gopal Das) was a Superintendent of Police. Giving evidence in court, however, R.S. Gopal Das states that Jauhar addressed him as Kaptan Sahib (Superintendent Police). When confronted with the statement made to the Police R.S. Gopal Das explains that by saying Jauhar addressed him by name he really meant Kaptan Sahib. I do not find myself able to accept this explanation. To call a person by his name is definitely not to address by his official designation. The words “Gopal Das” and Kaptan Sahib are by no means synonymous. I have also been referred by learned counsel for the accused to the wording of Rule 129 of the Defence of India Rules, under which authority it was required to arrest Jauhar. The arresting officer must have a reasonable suspicious ground against the person to be arrested. In the present case, Mr. Mellor, Superintendent Police/C.I.D had deputed R.S. Gopal Das, Additional Superintendent Police/C.I.D. to arrest Jauhar and it may reasonably be said, once R.S. Gopal Das was seized of this knowledge he was the authority to arrest Jauhar. But here again neither R.S. Gopal Das nor S.I. Bhagwan Das Jain were in uniform. They did not have any warrant for Jauhar’s arrest. They did not display any badge or token of Police. Since Jauhar did not know these two gentlemen personally, I find the circumstances in his favour that he did not know them to be police officers. Here again I must give the accused the benefit of doubt and hold that their resistance to Jauhar’s arrest was merely resistance to two persons laying hold of Jauhar, and cannot be considered as a resistance to legal apprehension.

It is unfortunate that this incident should have occured. I am unable to determine the exact cause of the struggle but it does certainly appear to be that after the struggle the parties had talks which resulted in a compromise. My inspection note may again be referred to. R.S. Gopal Das’s car was standing on the kachcha portion of the road leading from the main metalled road to the house. Jauhar’s car was between that and the house. Without R.S. Gopal Das’s car being moved and taken off the kachcha road it would have been quite impossible for Jauhar’s car to have reached the main metalled road, more particularly if there were any crops growing in the fields to the left and right of R.S. Gopal Das’s car. It is more than probable that R.S. Gopal Das’s car was reversed and taken off the kachcha road to permit Jauhar’s car being driven away.

This would not indicate that Jauhar was fleeing. On the contrary it indicates that he drove away from the house with R.S. Gopal Das’s full consent. There is volume of evidence which stands unrebutted to show that Jauhar was the only occupant of his car. The concluding part of my order dated 10-1-1944 in case No. 119/3 of 1942, of this court, may be referred to in this connection. This, coupled with the defence evidence makes it abundantly clear that Jauhar left the Mehrauli house alone in his car and at his house at Central Lane also alone. R.S. Gopal Das states that he left the Mehrauli house five or seven minutes after Jauhar.

This would mean that Jauhar had already travelled at least half the distance between the Mehrauli house and the Central Lane house when R.S. Gopal Das had just started from the Mehrauli house. Yet, strangely enough, R.S. Gopal Das’s car was directly behind Jauhar’s car when Jauhar’s car arrived at the Central Lane house. Here again is a circumstance to show that an agreement had been arrived at between the parties at Mehrauli.

The rest of the evidence in this case is more or less of a formal nature. I must, however, refer to the identification parade held at the Jail by Ch. Suba Singh, Magistrate First Class. The learned public Prosecutor again argued that the result of the identification parade must be viewed as the other accused persons complicity in this offence. On the other hand learned counsel for accused contends that the identification parade should not be seriously considered because the other accused persons had been arrested either that same night or the following day and having been taken to the Police station, R.S. Gopal Das and S.I. Bhagwan Das Jain had opportunity of coming to them. I have no doubt that Ch. Suba Singh held the identification parade in a proper manner, but I must also hold that there was time and opportunity for the prosecution witnesses to see the accused persons before the parade was actually held.

In conclusion and for reasons given I am of the considered opinion that the accused person here rebutted the charge against them so far as the main aspect of the case is concerned. In other circumstances, with respect to the pistol, benefit must be given to the accused, and with respect to Jauhar’s arrest I can find no evidence to support the view that Jauhar knew R.S. Gopal Das and Bhagwan Das Jain to be police officers and that they were arresting him in a proper and legal manner.

It is needless for me to consider the individual cases of the accused persons other than Jauhar and Mangat Ram, because my remarks with respect to Jauhar apply equally to the others. In addition, however, it may be added that these other accused persons were arrested at the spot soon after the occurrence. If indeed they were guilty of assaulting two police officers in the discharge of their duty, I feel that they would not have remained at their posts but would have absconded or made every attempt to cancel themselves and to avoid arrest. Their continuing to live and work at the same house are circumstances very strongly in their favour. Regarding Mangat Ram (driver) I find his plea of alibi substantially proved. For these reasons I acquit all accused.

Announced

6-5-1944 Section 30 Magistrate Delhi