BALA HUDDAR Vs. EMPEROR

JUDGEMENT

(1.) THIS appeal and Criminal Appeals Nos. 263 (Sheikh Karim v. Emperor), 264 (Muhim Khan v. Emperor), 267 (Papa Miya v. Emperor), 305 (Ambadas Govind Kesale v. Emperor), and 306 (Kesheo Sitaram Joshi v. Emperor) of 1931 are from the convictions and sentences passed by Mr. Rodrick, Magistrate, First Class, Balaghat, exercising powers under Section 30, Criminal P. C., in Criminal Case No. 13 of 1931. The appeals were heard together, and this judgment will govern all. The eight appellants were prosecuted under Sections 395, 397, 120-B and 109, I. P. C. They have all been found guilty under Section 120-B (1), I. P. C., whilst Ambadas Govind Kesale, Kesheo Sitaram Joshi, Bal Mukund Huddar, Haribhau Laxman Sadhoo and Papa Miya have been found guilty under Sections 395 and 397 and no decision was given as regards the charge under Sections 395 and 397, read with Section 109, I. P. C., as regards Mt. Mantora.

(2.) THE facts of the case have been stated in the Magistrate's judgment and may be briefly recapitulated. On the night of 25th December 1930 about 8 p. m. a dacoity was committed at the house of Sarwanlal malguzar of mouza Yerwaghat in the Balaghat District. A motor-car containing several persons drove up to his house, shots were fired, he was directed to give up the keys of his safe and he and one Maroti Lohar were wounded. Owing to the firing the other inmates of the house and the villagers kept aloof. The dacoits broke open the safe, took a quantity of gold and silver ornaments, two guns and three spears and decamped in their motor. A report was made the same night, or early the following morning, at the police station-house at Katangi and investigation followed. Subsequently the investigation was handed over to the C. I. D., Nagpur. From information received it appeared that a party of men had left Nagpur on Wednesday the 24th or Thursday the 25th by motor. They were seen at Paraswada tank on the road between Tumsar and Katangi about 4-43 p. m. on the 25th. They were also seen on the morning of the 25th on the same road near the forest chowki, not far from Paraswada, about 10 a. m.; and again in the afternoon about 5 p. m. they were seen by two boys on the kachcha road, leading from the chowki to Yerwaghat. On the return journey the car was again seen and some of its occupants identified at the Soor river, which is crossed by the road between Tumsar and Bhandara.

(3.) THE fact of the dacoity has been established by the direct evidence of Sarwanlal malguzar (P.W. 59) and other witnesses for the prosecution as well as by the recovery of the ornaments, guns and spears that were stolen. It is also clearly established by the prosecution that the dacoity was committed by persons who came in a motor-car and left again in the car after committing the dacoity. The only question then to be determined is how far the prosecution evidence proves that the dacoity was committed by the appellants or some of them. (The learned Judge then discussed the evidence against each appellant and proceeded). Two legal objections raised by the learned Counsel who appeared for the appellants have now to be considered in connexion with the sections under which the appellants are to be found guilty. The first argument was that persons could not be found guilty both of committing dacoity and of conspiring to commit dacoity at the same trial. The argument was based upon Section 71, I. P. C., and Section 35, Criminal P. C., and it was contended that the conspiracy was part of the dacoity as no dacoity could be committed without preparation and conspiracy and therefore it was not a separate offence. This argument seems to me to be clearly fallacious, and it may be noted that it contradicts the argument put forward at the trial by Mr. Bobde, who appeared for Huddar at the trial, that the conspiracy must be proved independently of the actual commission of the offence. This latter argument is no doubt correct and if persons are to be held guilty not only of committing an offence but of conspiring to commit it, there must be evidence not only of the commission of the offence but of the conspiracy. It does not however follow from this, and in fact is directly opposed to say that the conspiracy and the offence are part of one and the same transaction.