BIJO GOPE Vs. EMPEROR

JUDGEMENT

(1.) These two applications in revision have been heard together and this judgment will govern both the applications. The eight petitioners were convicted of the offence of dacoity under Section 395, Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of three years each by the learned Assistant Sessions Judge of Monghyr. Two of them, Parmeshwar Mandal and Bijo Mandal, were also convicted under Section 324, Indian Penal Code, and sentenced to rigorous imprisonment for two years each. Bijo Mandal was also further convicted and sentenced under Section 323, Penal . Code. There was then an appeal to the Court of Session, and the appeal was heard by the learned Additional Sessions Judge of Monghyr. The learned Additional Sessions Judge set aside the conviction and sentences under Secs.324 and 323, Indian Penal Code. He altered the conviction of the petitioners under Section 395, Indian Penal Code, to one under Section 148, Penal Code, in the case of some, and under Section 147, Indian Penal Code, in the case of others. Three of the petitioners, Bijo Mandal, Parmeshwar Mandal and Bhaiya-lal Sahu, have been convicted by the learned Additional Sessions Judge of the offence under Section 148, Indian Penal Code, and each one of them has been sentenced to rigorous imprisonment for one year. Bhaiyalal Sahu has also been sentenced to a fine of Rs. 100, or in default rigorous imprisonment for a further term of one month. The remaining five petitioners, namely, Bhuneshwar Barhi, Garib. Gope, Kanik Gope, Nathone Gope and Sukha Gope, have been convicted of the offence under Section 147, Indian Penal Code, and sentenced to rigorous imprisonment for six months each.

(2.) Two main points have been urged on behalf of the petitioners. It has firstly been contended that the learned Additional Sessions Judge has disbelieved the prosecution witnesses in essential particulars with regard to the offence of dacoity : it was not, therefore, open to the learned Additional Sessions Judge to convict the petitioners on the testimony of those very witnesses whom he had disbelieved with regard to essential parts of the prosecution case. It is also contended that the three witnesses, namely, p. ws. 5, 16 and 18, on whom the learned. Additional Sessions Judge has relied, have been particularly disbelieved with regard to essential details. Secondly, it has been contended that the alteration of the conviction under Section 395, Indian Penal Code, to one under Sections 148 and 147, Indian Penal Code, by the appellate Court is illegal and has caused great prejudice, to the petitioners. In order to appreciate the aforesaid two points raised on behalf of the petitioners, it is necessary to state very briefly the essential facts of the prosecution case, The prosecution case was that on 17 day of November 1942, at village Itehari, police station Bukhtiarpur, a mob of about 300 to 400 persons, including the present petitioners, came, variously armed, at about 10 A. M. to i the house of one Johari Lal Sahu (P.W. l). Johari Lal Sahu was on bad terms with the petitioner Bhaiyalal Sahu for some time. In November 1942, Johari Lal Sahu was getting a balcony constructed on the top of his house which projected about 2 to 2 1/2 cubit towards the north. North of the house of Johari Lal Sahu is the house of the petitioner Bhaiyalal. On 14 November 1942, Bhaiyalal had sent an information to the thana through a chauki-dar. On the basis of that information, the Sub.Inspector of Police (P.W. 22) had inspected the place on that day and had ordered Johari Lal not to proceed with the construction till the matter was decided by the authorities. On 17 November 1942, when the plastering work inside the roof of the balcony was in progress, a mob of 300 to 400 persons came there. They dismantled the balcony, effected entrance into the house and assaulted some of the inmates inside. It is alleged that the members of the mob removed iron bars, some maunds of wheat worth Rs. 54 and 10 saris worth about Rs. 50. It was further alleged that some of the materials of the balcony were also taken away by the mob. Information was given to the Sub-Inspector of Police on the same day at about 4.30 P. M. The Sub-Inspector of Police arrived at the spot at about 10.30 P.M. He found that the balcony had been totally dismantled. After investigation he submitted charge-sheet. On this the petitioners were put on trial with the result indicated above. The defence of the petitioners was that they had been implicated falsely in the case.

(3.) The learned Assistant Sessions Judge who tried the case accepted the prosecution case to be true and convicted the petitioners of the offence of dacoity under Section 395, Indian Penal Code. He also convicted some of the petitioners under Secs.324 and 323, Indian Penal Code, as stated above. The learned Additional Sessions Judge, however, did not accept the prosecution case in its entirety. He found that the story of looting the properties, such as several maunds of wheat, saris, etc., was not true. In this view of the matter, he came to the conclusion that the charges under Section 395, Indian Penal Code, could not be sustained. He, however, relied on the evidence of some of the witnesses, particularly P. Ws. 5, 16 and 18, regarding the demolition of the balcony (chhaja). He then considered the evidence against each one of the accused persons and came to the finding that the petitioners were members of an unlawful assembly with the common object of causing the destruction of Johari's balcony. He also disbelieved the evidence regarding the individual acts alleged against the petitioners Parmeshwar Mandal and Bijo Mandal which formed the subject-matter of the charges under Sections 324 and 323, Indian Penal Code.