EMPEROR Vs. RAM SEWAN MISTRI

JUDGEMENT

(1.) The persons whose case is now before us were committed to the Court of Session on a charge under Section 396, Indian Penal Code, for having about mid-night between 20 and 21 May 1942, committed dacoity at Bhagyoga, Police-station Paliganj, District Patna in commission of which dacoity one Earn Bishun Dusadh was murdered. In the Sessions Court charges of rioting with the common object of assaulting Rajju Sinha, Sukhdeo Sinha and their men were added, five persons being charged with rioting under Section 147 and the remaining eight under Section 148, Indian Penal Code. A further charge under Section 326/149 against all the thirteen was also added on the allegation that some of the members of the unlawful assembly caused grievous hurt on Earn Bishun Dusadh in prosecution of the common object of the unlawful assembly in which rioting was committed.

(2.) All the charges added in the Sessions Court were tried by a jury of five who unanimously held those charges proved against all the persons against whom they had been framed. The charge under Section396, Indian Penal Code, was tried with the aid of assessors and the five jurors in their capacity as assessors unanimously held this charge proved against all the accused. The learned Additional Sessions Judge, however, disagreeing with all the assessors acquitted all the accused of the charge under Section 396, Indian Penal Code, and disagreeing also with the verdict of the jury he referred the case of all the accused to this Court under the provisions of Section 307, Criminal P. C. An appeal has been filed by Government against the acquittal of all the accused on the charge under Section 396, Indian Penal Code. We are informed that Roshan Gope one of the original 13 accused has died and we are no longer concerned with the case against him.

(3.) Very briefly, the prosecution version of the occurrence was that Sukhdeo Sinha (P.W. 3) and his wife, Sonmukha Kuer (p.W. 16), were sleeping in one of the rooms of their house while their daughter,Telaria (P.W. 17) aged 13, was sleeping on the osara in front of that room. Sukhdeo Sinha woke on an electric torch being flashed on and saw three persons jump down from the partition which separated that room from an adjoining room. It is said that those three were the accused Earn Sewan Mistry, Deosaran Mistry and Jadu-nandan Gope, all three of whom were armed. They started taking out of that room some boxes which contained ornaments which had been presented about a month previous to Dularia, another daughter of Sukhdeo on the occasion of her marriage, as well as clothes, miscellaneous articles and cash to the extent of Rs. 100. As the thieves moved out, Sukhdeo Sinha (P.W. 3) followed them and the accused Deosaran struck him with a bhala. Telaria caught the accused Ram Sewen by the leg but he struck her with a tangi on the head. Sukhdeo however followed the thieves outside and raised an alarm, on which various persons of the village turned up and several of them received injuries at the hands of different members of a band of about 30 or more persons, including the three accused who were said to have entered the house of Sukhdeo Sinha as well as the other accused. After some time this band is said to have moved off towards the south-west. Among the persons injured was Earn Bishun Dusadh who was taken to hospital where he died at 8-30 P. M. on 24 May 1942. It was found that a bagli had been cut in the main door of the house of Sukhdeo Sinha. A bagli is a small hole cut in the door to enable a person from the outside to insert his hand and unlatch the door and so open it.