BIPAT GOPE Vs. EMPEROR

JUDGEMENT

(1.) The twelve appellants were tried by jury before the Additional Sessions Judge of Patna on charges of rioting with murder and causing hurt individually with bhalas. The jury returned a unanimous verdict of guilty on all the charges except the direct charge of murder under Section 302, Indian Penal Code. The Additional Sessions Judge accepted this verdict, and under Section 302, Indian Penal Code, read with Section 149, Indian Penal Code, sentenced eight of the appellants to death and the other four appellants Karamchand, Ramu, Chintaman and Sheolochan to transportation for life, and considered it unnecessary to pass any separate sentences under Section 147, Section 148 or Section 324, Indian Penal Code. The matter is now before us under Section 374, Criminal Procedure Code, for confirmation of the death sentences and also on appeal by the twelve convicted persons. Bihku Kahar, the son of a Kurmi father and a Kaharin mother, according to the case of the prosecution, used to side with the Kurmis of his village Jamuara in the disputes that had been going on between them and the Goalas of the village. The appellants are all Goalas, appellant Bipat being the barahil of the entire body of landlords of the village. Nakat Mahto, nephew of Bikku's father, was jethraiyat under M. Shamsuddin, one of the landlords of the village, and had been repeatedly complaining (along with other Kurmi raiyats) to him of the Goalas uprooting and destroying their crops. In the morning of February 29 last, Bikku was going past the house of Bipat when appellant Karamchand, son of a cousin of Bipat's began to cough loudly, Bikku responding to the gesture by twisting his moustaches. An actual assault was, however, prevented by the intervention of the two villagers.

(2.) In the afternoon, at about 2 o clock, Bikku happened to be going towards his but field, Plot No. 1651, in the block called Punai Khandha. Immediately to the east of this field was a plot of one Karmu Mahto, Plot No. 1650, which was lying fallow at the time. Four of the appellants-Sunder, Karamchand, Chintaman and Ramu were grazing their buffaloes in this parti field and feeding them with gram plants uprooted from Bikku's plot. Bikku protested against the and was assaulted by Sundar and Karmacnand with lathis. He fled north-east towards his khesari field, Plot No. 1750, in Bahera Khandha, about 110 bans (say 300 yards) away, chased by the four appellants who had been grazing the buffaloes. The other eight appellants then came up Bipat from Bighapar on the north east, and the remaining seven from beyond a stream called the Lokain river which lay to the south. Four of these eight men Ghuram, Raghu, Bimal and Sheolochan had bhalas, and the rest lathis. The appellant Sundar caught Bikku in the kesari field, Bipat ordered an assault, Raghu and Ghuran felled Bikku with their bhalas, and then all the appellants surrounded him and assaulted him with bhalas and lathis. They next carried him from the khesari field past the stream to the sandy portion on the south, and then dragged the body to a marcher field, Plot No. 1808, about 50 paces farther off. The commotion brought several Kurmis of the village to the northern side of the stream, and when Khublal Mahto, who after working as dafadar of the Circle for 26 years had on account of old age been replaced by his son, began to cross the stream, the appellants ran away, leaving the body of Bikku in the mirchai field. Bikku expired as the ex-dafadar fetched some water in his gamaha from the Lokain and put it into Bikku's mouth. Information of the occurrence was given at the thana of Hilsa, five miles away, at 5-30 that afternoon by Firangi Kahar son of Bikku, who happened to have heard of it from Firangi Mahto, a man who had protested against the appellant's assault on Bikku and had thereupon been struck by the appellant Sheolochan on the right leg with a bhala. The Sub-Inspector arrived on the scene in due course and had the dead body of Bikku sent for the post mortem examination. The Assistant Surgeon of Bihar who made the post mortem examination found a very large number of injuries "probably caused by hand and rough blunt substance and a pointed sharpedged weapon", and pronounced, the death to be due to the consequent shock and haemorhage.

(3.) The defence was that the appellants had been falsely implicated on account of the enmity with the Kurmis, and that they were none of them except Ghuran in the village at the time of the murder but were working in khandhas at a distance from the village. As to appellant Ghuran, the story given by him in his examination before the Sessions Judge, was that he and one Bakhori had found the buffaloes of Bikku and Motar Mahto grazing, unattended by any cowherd, in Ghuran's "but" field in Punai Khandha and an adjoining field of Bakhori in Bahera Khandha, that they were taking the trespassing cattle to the pound, when Bikku came and raised a hullah which brought eight or nine other men, presumably Kurmis, on the scene, that Firangi Mahto aimed a blow at Ghuran with a khanti, which, however, was snatched away by Bakhori and used upon Firangi, that on cries of Ghuran eight or nine men came up from the neighbouring tolas of Gosainpur, Maheshpur, etc., and that there was an exchange of lathni-blows between them and Bikku in the mirchai field, while Ghuran went away and impounded the cattle in the Hilsa pound. We have already referred to the verdict of the jury. As death sentences have been passed, the appeal is not, as in ordinary cases tried, by jury, confined to matters of law but extends to matter of fact as well, even in respect of persons not sentenced to the extreme penalty of the law. This does not, however, mean that the verdict of the jury is to be lightly ignored. Generally speaking, no exception has been taken to the charge of the learned Judge to the jury, nor have we been able to find any misdirection in it or any misunderstanding of the law, as laid down by the Judge, in the verdict of the jury.