DWARKA SINGH Vs. EMPEROR

JUDGEMENT

(1.) These two appeals, one from jail and one a regular appeal, are by the same two persons and relate to the same case. The appellants, Dwarka Singh and Bhaswa Dhanuk, have been convicted under Section 395, Indian Penal Code by the learned 1 Assistant Sessions Judge, Patna, Mr. A.C. Banerji and have been sentenced to five years rigorous imprisonment each and to pay fines of Rs. 200 each, or in default to suffer six months further rigorous imprisonment each. At the time of admission of the appeal a rule was issued to show cause against enhancement of the sentence in the event of the convictions being upheld.

(2.) This was a supplementary trial, as another person accused of this dacoity had been previously tried and convicted. The dacoity in question took place in the house of one Baiju Pasi (P.W. 1) of village More, police station Mokamah, on 2-7- 1913. Ornaments and cash to the total value of Rs. 351/4/-were taken by the dacoits, and Baiju and his son and a relative and one of the villagers were assaulted and injured by the dacoits. The occurrence of the dacoity was not challenged at the trial, and was well established. Baiju, on account of his injuries and inability to secure a conveyance, was not able to set out for the thana, six miles distant, in the morning, but the village Chaukidar was sent. It so happened he met the Sub Inspector of Police near the village, as the Sub-Inspector was going that way in connection with some other inquiry, and according to the prosecution the Chaukidar gave him a brief intimation of the occurrence of dacoity but without any details. There is, I think, reason to doubt whether he ever actually met the Sub-Inspector, who was going through More in any case. However thai may be, the Sub-Inspector did not record any statement, but when he arrived at the village at 9 A.M. he recorded the fard-i-beyan of Baiju. In this information Baiju claimed to have identified, amongst others both the appellants, Indeed, he attributed some of his injuries to Bhaswa, saying that this man, whom he had recognised by the light of a lantern burning in the verandah and by the light of the dacoits torches had struck him on the head with a spear. He also said that the appellant Dwarka Singh and another man Fauzdar Dusadh had carried out of his house a wooden box containing money, paper and ornaments.

(3.) Both the appellants were found absconding. Bhaswa was arrested in connection with some other case some time before 25-8-1943, and a test identification of Bhaswa was held by a Magistrate on 13-9-1943, some two months after the occurrence. Dwarka Singh could not be arrested until 1-7-1941 and a test identification in his case was not held until 13.11-1944, 16 months after the occurrence.