EMPEROR Vs. BARMANAND

JUDGEMENT

(1.) This is a reference by the learned District Magistrate of Muzaffarnagar, recommending that the sentences passed by a Tahsildar Magistrate of that District on Barmanand and Jhabboo for offences under Secs.406 and 323, I.P.C., be enhanced. The facts which led to the reference are as follows: The complainant Baldeva and the accused are Sunars by caste. The evidence shows that Barmanand actually carries on the profession of a goldsmith. On 24 April 1935, Baldeva filed a complaint in the Court of the Subdivisional Officer, Jansat, alleging that a few days before the complaint he had taken a pair of gold bangles to the accused Barmanand and offered to sell them to the latter, and that it was agreed that Barmanand would give 1 3/4 tolas of gold and 8 1/4 tolas of silver in lieu of the bangles which were "sold" to Barmanand. On Baldeva demanding 13/4 tolas of gold and 81/4 tolas of silver, which Barmanand had agreed to give him, the latter said that he would give them after the bangles were melted. Baldeva accepted Barmanand's word and came to him two or three days afterwards and demanded the gold and silver which he had agreed to give.

(2.) At that time accused 2, Jhabboo, was sitting at the shop of Barmanand. Baldeva insisted on the gold and silver being given to him, which led to some altercation followed by an assault by Barmanand and Jhabboo. Baldeva received some injuries, which were subsequently mentioned by a medical practitioner in an injury report. On the above allegations Baldeva charged Barmanand with offences under Secs.406 and 323,I.P.C., and Jhabboo with an offence under Section 323, I.P.C. The Subdivisional Magistrate transferred the case to a Tahsildar Magistrate of the Second Class, who recorded the evidence of a number of witnesses produced by the complainant and charged the accused Barmanand under Secs.406 and 323 and Jhabboo under Section 323 only. Barmanad pleaded in defence that Baldeva had sold the bangles to him, as admitted by the latter, and that he had given the agreed quantities of gold and silver to Baldeva. It appears from the complaint and the statements of the complainant's witnesses as also from the statements of the accused and the witnesses examined in defence that sufficient attention was not paid to the view on which the reference made by the learned District Magistrate is based. The crucial question in the case is whether Baldeva had transferred his rights in the bangles to Barmanand, so that the property in those articles passed from Baldeva to Barmanand, or Baldeva retained his ownership of the bangles while they were in the custody of Barmanand, who had agreed to hand over to Baldeva the identical gold and silver to be obtained by melting the bangles. In the former case, it is clear, as the learned District Magistrate has pointed out, that no offence under Section 406, I.P.C., can be said to have been committed. In the latter case Section 406 is clearly applicable.

(3.) The Tahsildar Magistrate believed the witnesses for the prosecution and disbelieved those for the defence so far as the latter attempted to establish that Barmanand had given the agreed quantities of gold and silver to Baldeva. On that finding he assumed that Barmanand committed an offence under Section 406, I.P.C. He also believed the statement of the witnesses for the prosecution that both Barmanand and Jhabboo assaulted Baldeva as alleged by him. He sentenced Barmanand to a fine of Rs. 100 under Section 406, I.P.C., and both Barmanand and Jhabboo to a fine of Rs. 25 each under Sec. 323, I.P.C. Barmanand and Jhabboo filed an appeal in the Court of the District Magistrate. It was argued before him that on the own showing of the complainant and his witnesses no offence under Section 406 could be said to have been committed in view of the fact that Baldeva had "sold" the bangle to Barmanand, who had agreed to give certain quantities of gold and silver in exchange. The record of evidence appears to have been then examined in the light of the contention noted above. The learned District Magistrate seems to have appreciated the question of law involved in the contention referred to above; but he expressed the opinion that the Tahsildar Magistrate misunderstood the complainant and that what he and his witnesses meant to say was that Barmanand would, according to the agreement, give the identical gold and silver which would be obtained after melting the bangles. In that view, the learned District Magistrate repelled the contention which had been put forward before him on behalf of the accused. He considered that, having regard to the nature of the offence, the sentence imposed by the trying Magistrate was inadequate.