EMPEROR Vs. TUTI BABU

JUDGEMENT

(1.) There are seven appellants in this appeal. Jugeshwar Bux Rai has been sentenced to death by the Judicial Commissioner of Chota Nagpur who convicted him for an offence under Section 302/149, Indian Penal Code. He was also convicted under Section 148, Indian Penal Code and sentenced to three years rigorous imprisonment which was directed to come into effect in the event of his conviction under Section 302/149 being set aside. The appellants Inderdeo Singh son of Bhola Singh and Inderdeo Singh son of Padarath Singh were convicted under Section 302/34, Indian Penal Code and sentenced to transportation for life. They were also convicted under Section 302/149 and Section 148, Indian Penal Code, and under Section 148 they were sentenced to three years rigorous imprisonment which was to come into effect in case their sentence under Section 302/34 was set aside. The appellant Naga Kahar was also sentenced to transportation for life under Section 302/34 and to three years rigorous imprisonment under Section 148, Indian Penal Code, this sentence to come into effect if the sentence under Section 302/34, were to be set aside. The appellants Farhat Hussain and Mohammad Hussain were sentenced to transportation for life under Section 302/149, Indian Penal Code and they were also sentenced to two years rigorous imprisonment under Section 147, Indian Penal Code. This sentence was to come into effect if the sentence of transportation for life under Section -302/149 were to be set aside. Along with the appeal the reference made by the learned Judicial Commissioner for the confirmation of the sentence of death on Jugeshwar Bux Rai has been heard.

(2.) According to the prosecution somewhere about 2-30 or 3 A.M. on 28th December 1944, a large mob led by the appellant Jugeshwar Bux Rai attacked the house of one Bissesswar Kahar. In that house were staying some 12 men belonging to one Ramautar Singh. Two men, Rajnarain Singh and Ram Ekbal Singh, were sleeping in an inner room of this house and ten men were sleeping in a verandah or dhaba according to the evidence. The rioters came with various weapons, such as swords, bhalas, lathis etc., and in the course of the attack on this house they murdered two men Maheshwar Dubey and Dasrath Singh. They also inflicted various injuries on Deonandan Sahu alias Pokhan Sahu, Mathura Singh, Raman Singh, Adbul Majid alias Dillu Khan, Ramji alias Uchit Pandey, Madan Singh, Rajdeo Singh and Dipan Dusadh. There was also an injury found on the person of Rajnarain Singh, but I think it is nobody's case that that injury was caused as a result of any assault upon him. The medical evidence of the injuries on these persons indicates that some of them, at any rate, received slight injuries while some received severer injuries. As for the injuries on the two dead men, the description of these injuries given by the Civil Surgeon who held the post-mortem discloses that they were more or less butchered. Maheshwar Dubey had no less than ten incised injuries and it is noticeable that there does not appear to have been any injury inflicted by a blunt weapon. The injuries on Dasrath Singh were three incised wounds and having regard to the nature of these injuries, it is not surprising that the man died. Rajnarain Singh is the first informant in the case and according to him at about 2-30 in the morning some 300 persons armed with lathis, bhalas and garasas came to the house of Bissesswar Kahar which he had taken on rent. It may be mentioned that Rajnarain Singh is the tahsildar of Ramautar Singh. While he was inside the room which has been marked as No. 5 on the map, he was able to peep through a small opening in the door leaves and his case is that Jugeshwar Bux Rai alias Tuti Babu was ordering that the rascal Baboos also should be assaulted, whereupon some of the rioters began to push against the door of the room. He climbed on a machan and on removing the tiles of the roof he was able to get on top of it and from there saw some 300 men amongst whom he recognised Jugeshwar Bux Rai, Farhat Hussain, Inderdeo Singh, father's name not indicated, Mohammad Mia, Bircha Singh and Rambadan Pahalwan and that these men were beating the people, while Tuti Babu was standing giving orders having some black article in his hand. According to Rajnarain at about 4 A.M. the mob went away. He got down from the roof and hid himself inside the room until about 5 A.M. He then came out of the room and found Maheshwar Dubey and Dasrath Singh lying dead in the verandah with injuries which according to him were caused by bhala. He stated in the first information that he could not proceed to the police station to lodge information out of fear. He then began to search for his people and at about 8 A. M. Pokhan Sahu of Mohullia came, with an injury above his eye, and told him that the other persons were alive, but injured and were at Jaipur. He then went to Jaipur and found Raman Singh, Dipan Majhi, Uchit Tewari, Mathura Singh, Madan Singh, Ragho Singh and Dillu Khan injured. In the first information he proceeds to give some description of the various articles said to have been removed by the rioters. He was not able to state in the first information as to who had assaulted whom and with what weapon. Just before ending his first information, he added that he had recognised Naga Kahar also as amongst the rioters. This occurrence took place in village Nawa within the jurisdiction of police station Patna.

(3.) Before dealing with the various submissions made before us, it is necessary to state briefly the personalities concerned. Jugeshwar Bux Rai is the uncle of one Gopal Bux Rai and although the latter is for the moment regarded as the owner of the Deogan estate, the real individual who manages the affairs of the estate is the appellant Jugeshwar Bux Rai.