DAROGA SINGH Vs. KING-EMPEROR

JUDGEMENT

(1.) The Petitioner was convicted of an offence under Section 411 of the Indian Penal Code and sentenced to three months' rigorous imprisonment by the Sub-Deputy Magistrate of Muzaffarpur. The conviction and sentence have been affirmed by the District Magistrate on appeal. The principal points argued by the learned Vakil for the Petitioner are: First, that the identity of the accused as the person who sold the bullock to Bishundeo Rai has not been established, and, secondly, that the evidence on the record to prove the plea of alibi is sufficient.

(2.) The facts of the case are shortly these: One Narak Singh of village Balthi had a bullock which strayed away from his house sometime towards the end of September 1923; subsequently, sometime in November, 1922, he found the bullock tethered in front of the house of one Bishundeo Rai of Nakardewa. Bishundeo Rai is alleged to have told him that he had purchased the bullock at the Madhuban Mela from one Daroga Singh of Shampore and he refused to make it over to Narak Singh; Narak Singh thereupon went to the Police and the Sub-Inspector, had the bullock brought to the thana and impounded it. Prosecution was started at the instance of the Police and warrant for the arrest of Daroga Singh was issued on the 31st December, 1922. The accused, however, could not be arrested for about six months as the warrants were sent to the wrong thana and the address of the accused could not be properly ascertained. The accused surrendered in court on the 27th of June, 1923. The trial did not commence until 18th of August, 1923, on which date eight prosecution witnesses were examined-in-chief and the case was adjourned to the 5th September, 1923 on an application on behalf of the prosecution who applied for summoning new prosecution witnesses. On the 5th of September, 1923, only one prosecution witness was present who was examined-in-chief besides the Sub-Inspector, and the case was again adjourned to the 22nd of September, 1923, on an application on behalf of the prosecution. On the 22nd September, two new prosecution witnesses were examined-in-chief and the charge was framed. The case was fixed for 11th October, 1923 for defence and argument. Thereafter the Court Sub-Inspector prayed for summoning further prosecution witnesses and the learned Magistrate ordered summons to be issued to them as court witness. On the 11th of October, 1923, none of the court witnesses who had been summoned on the previous date was present and it was found that the defence witnesses had not been at all served with summonses. The court thereupon ordered the court witnesses and the defence witnesses to be summoned and fixed 7th of November, 1923. On the 7th of November, the court examined two witnesses on behalf of the prosecution and again ordered the issue of fresh summons on another witness Janglal and adjourned the case to the 27th of November; the case, however, could not be taken up on the 27th of November, as the trying Magistrate had been temporarily transferred to Sitamarhi and it was ultimately taken up on the 4th of January, 1924, when the remaining prosecution witness, Janglal, was examined, the defence witnesses were examined and arguments were heard.

(3.) The case for the Petitioner is that it was not he who sold the bullock to Bishundeo in the Madhuban Mela and that it is a case of mistaken identity, and that on the date on which the bullock is said to have been sold to Bishundeo he was not in the Mela at all but was at Majowna in the District of Saran where he had gone with collections to his zamindar on the Dasahra Touzi day.