KING Vs. BALDEO PASWAN

JUDGEMENT

(1.) This is a reference against the verdict of a jury, made under Section 307, Cr. P. C., by the learned first Addl. Ses. J., Patna. The reference is in respect of four persons Baldeo Paswan, Tilakdhari Pas-wan, Gajo Mahto & Dwarka Dhanukard is against an unanimous verdict of guilty by the 7 jurors. The learned Judge is of opinion that the verdict is perverse, & that it is necessary to refer the case to the H. C. in the interests of justice.

(2.) The four persons who are the subject of the reference were tried with, six others for the murder of one Earn Saran Prasad alias Bhandariji of village Badi, police station Giriak, on the night of 23-4-1918. There were a number of charges, some of the accused being charged under Section 147, Penal Code, some under Section 148, all under Section 302 read with Section 149, all under Section 302 read with Section 34 & all under Section 120B for conspiracy, this last charge being triable with the aid of assessors. The verdict of the jury was unanimous throughout. They held all the accused not guilty under Section 147, 148 & 302/149 clearly for the reason that they did not consider it established that five or more persons took part in the crime, & they acquitted six of the accused altogether; but they found the four above-mentioned accused guilty of murder under Section 302 read with Section 34 & as assessors, they expressed the opinion that these persons were also guilty under Section 120B. The learned Judge accepted all the verdicts of acquittal. Also, not accepting the verdict of the assessors, he found all the accused not guilty on the conspiracy charge. He, accordingly, referred only the cases of the four persons mentioned, & the question is whether the verdict of the jury finding them guilty of the murder should be accepted.

(3.) The deceased was sleeping under a tree just outside the verandah of his dalan in village Badi. At about 11-30 P. M. he had his throat cut almost from ear to ear, causing immediate death. Only one other injury was found on his body, a skin-deep incised, wound near the collar-bone. The murder was a remarkable one in many respects. First of all, it was the night of the full moon. Secondly, the deceased Bhandariji was sleeping almost surrounded by other people. At least six people, & possibly eight, were sleeping within a few feet of him. These circumstances disclose most remarkable boldness on the part of murderer or murderers. Secondly, it is not claimed that any one was recognised except Baldeo Paswan. Two persons Ramji Mahton (P. w. 4) & Basudeva Narayan (P. W. 6), who were sleeping within a yard or two of the deceased, claim that they were wakened on hearing a gurgling sound & recognised Baldeo Paswan running, away to the south & east. They told three people, Earn Prasad. Singh (P. W. 1), Prasadi Mahton (P. W. 7) & Gobind Mahton (P. W. 8), what they had seen, but did not inform the rest of those who had assembled, the reason they give being that they were afraid Baldeo Paswan might abscond. At, 3 A. M. Earn Prasad Singh with the dafadar & chaukidar, who have not been examined, set out for the police-station six miles distant, & first information was lodged by Earn Prasad at 6 A. M., it being mentioned therein that Ramji & Basadeva had recognised Baldeo Paswan as one of the assailants. Daring the course of the investigation the Sub-Inspector recovered a falsa from a bush near the scene of occurrence & a gupti or sword-stick was made over to him by Tilakdhar Paswan. He seized these as both appeared to be blood stained. But the report of the imperial Serologist is that though there were traces of blood on both, they were too disintegrated for it to be possible to say if the blood was human. As late as the 1st of May the Sub-Inspector examined one Lachmi Prasad (P. W. 14), who claimed to have been sleeping in the verandah of the dalan & to have witnessed the whole occurrence. This man is a teacher in the lower primary school at Badi, & his story was that he woke up at the sound of footsteps at about midnight, & saw the accused Sadasiva holding the legs of Bhandariji while the accused Baldeo Paswan was holding his head. Gajo Mahto, son of Sadasiva, gave a falsa blow on the throat of the deceased, & then the accused Dwarka Dhanuk cut his throat with a gupti. As he was afraid the accused had seen him, he ran off & went to the home of a relative, six or eight miles distant, where he remained until the 30th without speaking to anyone.