RAM KHELAWAN CHOUDHARY AND ORS. Vs. THE STATE

JUDGEMENT

(1.) The appeal and the revision have been heard together. The appeal has been preferred by seven persons, one of whom, Ramjulum Yadav, has been convicted and sentenced to undergo rigorous imprisonment for two years under Sec. 380 of the Indian Penal Code. In the Criminal Revision a rule has been issued calling upon this appellant to show cause why his conviction be not altered into one under Sec. 395 of the Code and the sentence awarded to him be not suitably enhanced. The remaining six appellants have been convicted and sentenced to undergo rigorous imprisonment for seven years under Sec. 395 of the Code. One of them, however, Dasain Choudhary (appellant no. 4), has since died and his appeal has, therefore, abated. The occurrence in question is alleged to have taken place at about 7 p.m. in the evening of the 10th October 1963 in the house of Ramparichhan Choudhary (P.W. 8) in Khajauli, about one mile away from Khajauli Police Station, in the district of Darbhanga. The version of the occurrence which P.W. 8 has given is that while he was at his Dwar, he heard the hulla of "Daku, Daku" coming from the inner Angan of his house. On going into the Angan, he saw the seven appellants besides two or three other persons, present there and threatening his mother Janki Devi (P.W. 9) with assault and asking her not to raise 'hulla'. Among the appellants, Bhola Sah and Mauze Sah had Rassa (thick rope) in their hands, appellant Dasain Choudhary had a bamboo in his hand and appellant Ram Khelawan Choudhary was armed with a Thenga. The intruders were engaged in lifting and removing a heavy iron -safe which used to remain in the north -western corner of the verandah of the house. Some obstruction to the removal was put forward by P.W. 8 but he was assaulted by appellant Ram Khelawan with the Thenga and appellants Raudi Yadav and Bacha Yadav caught hold of him, so that he could not resist the removal of the iron safe. Thereafter appellants Ram Khelawan, Bhola, Dasain and Mauze put the iron safe upon the bamboo, and after tying the same with the Rassa lifted and removed it to the Angan of Mossomat Jhapsi situated to the contiguous north of the house of P.W. 8. Appellant Ramjulum, on his own part, picked up and carried away two blankets, one Dari and a few clothes from an Algani of the Osara. Ultimately, appellant's Raudi and Bacha left their grip over P.W. 8 and they also went away. There was a hulla at the time of the occurrence and several persons, who happened to be passing along the village road running towards the west of the Darwaza of P.W. 8, happened to drop in and see the occurrence. Among them were Kaiyam Mian (P.W. 2), Ram Lakhan Pandit (P.W. 3), Abdul Rahman (P.W. 4) and Rameshar Tanti (P.W. 5).

(2.) After the occurrence Ramparichhan Choudhary (P.W. 8) filed a complaint (Ext. 1) before the Sarpanch (P.W. 7) of the local Gram Panchayat. The Sarpanch examined P.W. 8 on solemn affirmation and took cognizance of the case in respect of offences under Ss. 323, 379 and 380 of the Indian Penal Code. He had found a cut injury on the upper portion of the eye -brow of P.W. 8 and so he referred him to local Medical Officer, Dr. M. Konar (P.W. 10), who examined P.W. 8 at 10 p.m. on the same night and found an abrasion on the right of his forehead, appearing to have been caused by some blunt weapon like lathi. On the following day (11.10.1963) the Sarpanch (P.W. 7) held an inspection of the place of occurrence, and on 14.10.1963, an attempt was made to bring the parties to terms, but when no compromise could be reached, then the Sarpanch (P.W. 7) made a reference to the Sub -divisional Magistrate at Madhubani for proper decision (Vide Ext. 7).

(3.) On receipt of the record of the case from the Gram Cutcherry, the Sub -divisional Magistrate passed an order on 5.11.1963, whereby he set aside the order of the Sarpanch (P.W. 7) of taking cognizance of the case as illegal and directed a judicial inquiry by a Magistrate of the First Class. On the same day, the complainant (P.W. 8) filed a petition objecting to the proposed judicial inquiry. No order on this petition of the complainant was passed on 5.11.1963. On 5.12.1963, however, the Sub -divisional Magistrate upon re -consideration transferred the case to a Munsif Magistrate of the Second Class for disposal. In due course, the Munsif Magistrate framed charges against the accused persons under Sec. 380/ 34, Indian Penal Code, but the complainant (P.W. 8) went up to the Sessions Judge in revision. By his order dated the 4th August 1966, the learned Sessions Judge directed that an inquiry should be held under Chapter XVIII of the Code of Criminal Procedure. Accordingly, a commitment inquiry was held, and by his order dated the 13th December 1966, the Munsif Magistrate committed the appellants to take their trial in the Court of Sessions on a charge under Sec. 395, Indian Penal Code. They were tried by the Third Assistant Sessions Judge of Darbhanga and convicted and sentenced as aforesaid.