BRIJLAL GOALA AND ORS. Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal by four convicted persons, Brijlal Goala, Janak Gosai, Munshigir and Sibgir who have been convicted by the learned Assistant Sessions Judge, U.A.D., under Section 395, Penal Code at a trial held with the aid of a jury and each sentenced to undergo rigorous imprisonment for 5 years.

(2.) THE ease for the prosecution was that soon after midnight of the 18.1.1950, a dacoity occurred in the house of one Harihar Gowala. Harihar Gowala and his wife, Mt. Janki Gowalani, and a younger son Premlal and their daughter Fuleswari were sleeping in the middle room of the house. Their eldest son Satyanarayan was sleeping in the southern room. Shortly after midnight, 2 Harihar heard a noise. When he woke up, he found five men inside the house with a torch focussed upon him. According to Harihar, these men were armed with a knife and dao. One of the dacoits is said to have struck Harihar with a knife and asked for money and ornaments from him. Some of the dacoits injured Harihar's wife and demanded money and other property from her. Harihar and his wife entreated the dacoits to save their lives and asked them to take away all the paddy in their house. The dacoits broke open the box, removed cash, ornaments and clothes belonging to Harihar and his wife and disappeared.

(3.) MR . Ghose, who appears for the appellants has contended that there has been misdirection and non -direction on a number of material points in the summing up of the learned trial Judge, misdirection and non -direction which have resulted in an erroneous verdict of the Jury, Mr. Ghose has pointed out that the learned Judge while telling the Jury what constitutes proof within the meaning of Section 3, Evidence Act omitted to tell the Jury when a fact is said to be disproved or not proved. We do not think that this species of non -direction can be properly regarded as having resulted in an erroneous verdict nor do we think there is any material misdirection or Mon -direction in the summing up when the learned Judge merely recorded the fact that the law on the subject was explained to the Jury without stating what he said to the Jury, having regard to the summing up as a whole. Mr. Ghose has drawn our attention to another passage at p. 55 of the Paper Book in which the learned Judge told the Jury: