STATE OF BIHAR Vs. AMIR HASAN

JUDGEMENT

(1.) THIS is an appeal by the State of Bihar against an order of acquittal recorded by the learned Ses. J. of Bhagalpur in respect of one Amir Hasan, aged about thirty-two years who was tried by the learned Ses. J, for an offence under Section 5, Explosive Substances Act. The assessors who aided the learned Ses. J, were-of the opinion that the respond)nt (Amir Hasan) was guilty. The learned Ses. J. did not accept the opinion of the assessors & acquitted the respondent. Three women, namely, the mother of the respondent, his wife & the wife of another member of the family, were also on trial before the learned Ses. J, They were also acquitted. The appeal against the order of acquittal when presented for admission in this Court, was not pressed as against the women accused persons, & the appeal was admitted only in respect of the respondent Amir Hasan. It may also be stated that the respondent Amir Hasan had an elder brother Abdul Hasan in, who was also committed to the Court of Session. He was suffering from pthisis, & died about a month before the trial began.

(2.) THE facts found & not disputed before us are these. On 7.5.1948. at about 6 a. m there was a raid by a police party on several houses in village Maheshmunda within the jurisdiction of clogging police station. One of these houses belonged to the two brothers Abdul Hasan & Amir Hasan. THE house was north of a village lane A faced east. It was built of mud & consisted of two storey. THEre were two rooms on the ground floor, one towards the north & the other towards the south, both of which opened on a verandah towards the east. THEre was a staircase leading to the upper storey where there was a hall partitioned by a wall in the middle. This Will had an opening without any shutter or door plank. THE search was conducted by an Assistant Sub-Inspector of Police, Biseswar Nuth Rai (P.W. 1), in the presence of a Magistrate, Jagdish Narayan Sinha (P.W. 8) & two search witnesses, Etwari Mandal (P.W. 2) & Iswer Bind (P.W. 3). THE police party consisted of the Assistant Sub Inspector & some other constables. THEse constables, it appears, surrounded the house at about 5 a.m. but remained outside when the search was actually made. Ono Imtiaz Hissain, a brother of the respondent, was present at the time of the search. THE womenfolk were inside the house, but the respondent vim absent THEre was evidence which was accepted by the learned Sea. J, that the respondent was soon in the house on the evening previous to the search.

(3.) THE prosecution led evidence to show that the house in question belonged to the two brothers Abul Hasan & Amir Hasan. THEre was evidence of one prosecution witness to the effect that Abul Hasan was the malik of the house being the elder brother. THEre was also evidence which was accepted that both the brothers were Been in the house on the day previous to the search & also on several days before that. I have already referred to the evidence that Amir Hasan was seen in the house in the evening previous to the search.