BEHARI Vs. EMPEROR

JUDGEMENT

(1.) In this case eight accused, Behari, Noni, Hulli, Birbal, Narain, Ganga, Ghasi and Umedi have been convicted by the learned Sessions Judge of Bareilly. The first five have appealed. The case of the remaining three has been taken up in revision. Noni has been convicted under Section 302 of the Indian Penal Code and sentenced to transportation for life. The learned Judge refrained from passing sentence of death because of the accused's youth, because he found there Was no direct intention to kill and because the wound was inflicted in the course of a scuffle and without premidi-tation. All the accused other than Noni have been convicted under sections 147, 324 read with 149 and 342 read with 149 of the Indian Penal Code, and sentenced to terms of imprisonment varying from three years to one year, the sentences to be concurrent with those passed under Section 342 and Section 147. Notice has been issued to these accused to show cause why they should not be convicted under section. 302 read with Section 149 and why their sentences should not be enhanced. It was intended that the notices should be issued to the seven accused other than Noni but owing to a clerical omission in the order passed notice has been is sued to Noni as well. Counsel has appeared to argue the case on their behalf.

(2.) The facts are clearly stated in the full and careful judgment of the learned Sessions Judge. The accused formed an unlawful assembly whose common object was to carry off by force Musammat Bibbo. Musammat Bibbo was the widow of a brother of the first accused Bihari. She had, as the learned Judge says "formed a- friend-ship either legitimate or illegitimate with Jhamman Murao and Daya Ram Brahmin." Bihari claimed to have married her after her husband's death and on 23 May 1923 filed a complaint under Section 498 of the Indian Penal Code against Daya Ram and Jhamman. These proceedings were pending at the time of the present occurrence. The complaint was ultimately dismissed on the ground that Bihari's marriage to Musammat Bibbo was not proved. On 12 June the complaint was before the Court and on 13 June a warrant was issued for the arrest of Musammat Bibbo. On the 16 June Bihari and the remaining accused went in a body at night to the house of Jhamman in order forcibly to carry away Musammat Bibbo. Two of the party carried spears and the remainder were armed with lathis. About midnight they broke into the house and found Daya Ram, Jhamman, Musammat Bibbo and Jhamman's mother sleeping in the courtyard. They attacked the inmates of the house with lathis and Noni struck Musammat Bibbo in the abdomen with a spear. The spear penetrated the liver and intestines and Musammat Bibbo died as the result of the injury. Jhamman and Daya Ram received minor injuries. The accused's party took Musammat Bibbo, wounded as she was to the thana on a cart and tied up Daya Ram and took him there also. Bihari proceeded to make a report in which he said that they were on their way to the house to recover the woman who was about to be carried off when on the way they met Jhamman and Daya Ram in the act of removing the woman and Jhamman Murao turned on them and attacked them with lathis. The Sub-Inspector finding that Musammat Bibbo had a wound in the abdomen from which her entrails were protruding took Bihari into custody, recorded Musammat Bibbo's statement as a first report, and sent her and Daya Ram to the dispensary for treatment.

(3.) The facts as found by the learned Sessions Judge does not admit of any doubt and the learned Counsel who represented the accused conceded that so far as the appeal was concerned there was very little which he could urge. The learned Judge has dealt with the case of each accused separately and has shown that the evidence against all the appellants is overwhelming. We have no hesitation in dismissing the appeals of all the accused.