SIDHU GOPE Vs. EMPEROR

JUDGEMENT

(1.) The nine appellants have been convicted and sentenced by the learned Additional Sessions Judge of Bhagalpur in the manner stated below. Two of the appellants, Ganu Gope and Sidhu Gope, have been found guilty of the offence of murdering one Mahendra Singh; they have been sentenced to death for this offence which sentence is the subject of a reference under Section 874, Criminal P.C. They have also been found guilty under Section 148, Indian Penal Code, and sentenced to rigorous imprisonment for two years. They have further been found guilty under Section 802 read with Section 149, Indian Penal Code, and sentenced to transportation for life. Ganu Gope has also been found guilty under Section 324, Indian Penal Code, but no separate sentence has been passed against him under that section. Of the remaining appellants, all except two, namely Sipchu Gope and Hublal Singh, have been found guilty under Section 148, Indian Penal Code, and sentenced to two years rigorous imprisonment; the latter two have been found guilty under Section 147, Indian Penal Code, and sentenced to 18 months rigorous imprisonment each. These seven appellants have also been found guilty under Section 302 read with Section 149, Indian Penal Code, and sentenced to transportation for life. One of them, namely, Mangal Gope, alias Mangru Gope, has been further convicted under Section 324, Indian Penal Code, but no separate sentence has been passed under that section.

(2.) It has been directed by the learned Sessions Judge that the sentence of transportation will run concurrently with the substantive sentences of imprisonment passed by him for the offences under Secs.148 and 147, Penal Code. Therefore, the important sentences are: (1) the sentence of death under Section 802, Indian Penal Code, on Ganu Gope and Sidhu Gope, and (2) the, sentence of transportation for life against all the appellants under Section 302 read with Section 149, Indian Penal Code. The occurrence which resulted in the pre. sent case against the appellants took place on 29 March 1944 at about 8 A.M., in a village called Mirachak in Chak Chakhandi Baihar, within the jurisdiction of the mofussil Police-station of Bhagalpur. The place is about 5 miles from the police-station. There are about 50 bighas of bakasht land in the village, comprised in two plots--one plot consisting of about 40 bighas and the other of about 10 bighas. Originally the village belonged to one Premlal Pande. He mortgaged this village along with other villages in favour of the father of Babu Bijoy Krishna Banerji (P.W. 17). I may note here that Babu Bijoy Krishna Banerji is a pleader of Bhagalpur. His father brought a suit to enforce the mortgage in 1927. A decree was obtained and put in execution. During the pendency of the execution proceeding the father died, and Babu Bijoy Krishna Banerji and his elder brother were substituted in place of their father. The mortgaged properties, including the village in question, were sold in execution of the decree and were purchased by Babu Bijoy Krishna Banerji and his brother. Then delivery of possession was obtained in 1931. Babu Bijoy Krishna Banerji stated that after delivery of possession in 1931 he cultivated the bakasht lands, but at the time of harvesting trouble was raised on behalf of Sarda Pande (one of the accused persons acquitted by the learned Sessions Judged Hublal Singh and others. There were proceedings under Section 144, Criminal P.C., and Section 69, Bihar Tenancy Act. These proceedings were decided against Babu Bijoy Krishna Banerji and his brother.

(3.) In 1932 Babu Bijoy Krishna Banerji and his brother filed a title suit in respect of the bakasht lands of the village. The title suit was against two sets of defendants, Sarda Pande being one set and Hublal and others being the second set. This suit was decreed in favour of Babu Bijoy Krishna Banerji and his brother. They again obtained delivery of possession in 1935. The prosecution case is that after this delivery of possession in 1935, Babu Bijoy Krishna Banerji gave 40 bighas of land to one Narsingh Singh to cultivate on the batai system, and kept about 10 bighas in khas cultivation. This arrangement continued peacefully till 1943. In September 1943, the Goalas of village Khutaha damaged the arhar crop grown by Narsingh.