DURGA PRASAD Vs. EMPEROR

JUDGEMENT

(1.) The four appellants, Durga Prasad, Sarabjit, Budhai and Manmath Nath Das were convicted on the unanimous verdict of a Jury by the learned Sessions Judge of Allahabad, on the 12 of August 1922. The transaction in which they were concerned was an extremely audacious dacoity (the first of its kind, so far as I know, which has occurred in these provinces) that was committed in Allahabad, at 1 o clock, in the afternoon, on the 2 May, 1922, less than half a mile from the High Court, on one of the most frequented roads in Allahabad. The criminals had marked down an Assistant Cashier and a chaprasi of the Allahabad Bank who were returning on an ekka from the Imperial Bank tb the Allahabad Bank with over Rs. 30,000 worth of currency notes in their possession. They, came up behind this ekka in a motor-car which had been brought from Calcutta for the purpose. They stopped the motor-car, two of their numbers got out, assaulted the servants of the Bank, robbed them of the notes in their possession and re-entered the motor-car which drove off at fall speed. The number of persons taking part in this attack was more than five. Eventually the following persons were arrested and put upon their trial: Budhai, Sheo Harakh, Manmath Nath Das, Durga Prasad, Sarabjit, and Musatnmat Sundari. One of the dacoits, Kashi Pershad, was tendered a pardon and gave evidence for the Crown. Budhai, Sheo Harakh, Manmath Nath Das and Durga Pershad were tried for the actual commission of the dacoity. Sarabjit was tried under a charge under Section 412 of the Indian Penal Code to the effect that the day after the dacoity he was found in dishonest possession of certain of the stolen notes knowing that they had been stolen in the dacoity of the previous day. Sarabjit, it is to be noted, is the brother of one Sudhai who, on the evidence, took part in the dacoity. Musammat Sundari was charged of being in possession of notes stolen in the dacoity. She was in the motor-car when the Police overtook it. The Jury found Budhai, Sheo Harakh, Manmath Nath Das and Durga Parshad guilty of dacoity and Sarabjit and Musammat Sundari guilty on charges under Section 412 of the Indian Penal Code. Sheo Harakh has already appealed against his conviction and sentence. His appeal has been dismissed.

(2.) I take first the appeals of Sarabjit and Budhai. Their learned Counsel has raised the following questions of law. The first is that the trial is bad in law because Sarabjit and Sundari could not be tried jointly with the; remaining four accused persons. Now, it is always for the prosecution to justify a joint trial. A separate trial is the rule and a joint trial is the exception. In the circumstances of this case, however, a joint trial was permissible under the provisions of Section 239, Criminal P. C., for upon the evidence the offence of dacoity and the two offences of dishonest possession of stolen property knowing it to have been stolen in the commission of a dacoity or dishonest reception of such property knowing it to be stolen from a known dacoit, were committed in the same transaction. The view which I take is the view which was taken by a Bench of the Bombay High Court in Emperor V/s. Balabhai Hargovind 6 Bom. L.R. 517 : 1 Cr.L.J. 584. This is not a case of separate charges of receiving stolen property each in itself forming a separate; transact on and unlinked by something which brings them into the same transaction. If Sarabjit and Sundari had been tried jointly by themselves, their trial would have been bad in law but the circumstances that they were tried with persons charged with the dacoity in which the property was stolen links up all the three charges into one transaction. This is the view which has been taken by the Bombay High Court and it is the view which commends itself to me. The jury had before them evidence which justified the conclusion that both Sarabjit and Sundari each took possess on of stolen notes, stolen in the dacoity with full knowledge that they had been stolen in that manner. Their verdict shows that they believed that; evidence. I, therefore, find that the joint trial was a good trial in law.

(3.) The second point taken on behalf of Sarabjit and Budhai is that the learned Judge's summing up was bad in law. I find against this plea. I have been through, the summing up and the evidence in the case and I consider not only that the summing up cannot be attacked in any way as disclosing any illegality or any irregularity but I further consider that the summing up is an admirable summing up and a model of what a summing up should be. It is clear and succinct, absolutely fair and presents both the law arid the facts to the Jury in a manner on which it would be difficult to improve. The last point is taken by all the appellants together and can be considered for all of them. It is the only point which has been pleaded in respect of Durga Pershad and it is the only point that can be pleaded in respect of Manmath Nath Das who has appealed from Jail. This point is that the sentence on each individual is too severe. I do not consider the sentence severe in the case of any individual. The offences committed-were very serious offences and it is absolutely necessary that persons committing such offences should be made to recognize the enormity of what they have done by the passing of salutary sentences. I do not consider that the learned Sessions Judge has, in any instance, passed too severe a sentence. I, therefore, dismiss these appeals.