EMPEROR Vs. HARIA DHOBI

JUDGEMENT

(1.) Haria Dhobi was committed to the Sessions on a charge under Secs.392, 397" Indian Penal Code, for robbing Baijnath Chokra of his silver mathias and gold lavangs and at the time of committing the robbery, causing grievous hurt to him in order to take away those trinkets. At the commencement of the proceedings in the Court of Session, the Assistant Sessions Judge who tried the case, added a charge under Section 325, Indian Penal Code. The charge of robbery was triable by jury, and that of grievous hurt triable with the aid of assessors. The jury returned a unanimous verdict of not guilty, and the same gentlemen functioning as assessors were unanimously of opinion that Bajinath was assaulted neither by Haria Dhobi, nor by Gajkishore. P. W. No. 4 (as suggested by the defence), but by some third person. The learned Judge took it that the prosecution case was that the accused had caused grievous hurt to Bajinath, not at the time of committing the robbery, but subsequent to its commission. He, therefore, directed the jury that Section 397, Indian Penal Code, was not applicable to the case and that the accused should be acquitted of that charge. He, however, considered the verdict of not guilty on the charge under Section 392 to be "perverse and against the weight of evidence" and has accordingly made this reference.

(2.) The prosecution story was that Baijnath, a boy of six, was taken from his house by Haria Dhobi after dusk, on a promise that sweets would be given to him, ostensibly to see a Kali Puja in Mauza Belhar about four miles away. Near a bundh, called the Jamua Bundh, 11 rassis away, Haria asked the boy for his mathais and lavangs, saying that thieves might (otherwise) snatch them away in the crowd, and on Baijnath's refusal, made him lie down on the bundh and took the trinkets by force. Baijnath grabbed at Haria's dhoti and was hit by him with the butt of an iron-bound stick on the right eye. Haria then fled with the trinkets, and Baijnath lay on the bundh crying in the dark until his cries brought on the scene Gajkishore Mahto, Baijal Pasban and Muhammad Rashid. These men took him to a mandap adjoining the house of Baijal; and Baijnath's father Sital Bhagat and the chowkidar of his village, Basu Prasad, soon came there. Questioned about the bleeding injury on his eye, Baijnath said that it had been caused by Haria; about his trinkets he said that Haria had taken them. Sital and Basu thereupon took the boy to the dispensary at Sangrampur and afterwards went and lodged an information at the thana of Belhar. There was no witness to the occurrence except Baijnath himself, the scene being a solitary bundh away from the busti, and the time after dark. There was also the evidence of the men who came to the mandap that Baijnath had named Haria as his assailant. The learned Judge below says that the boy gave "a clear and consistent narration of the occurrence" and "impressed me in the witness-box"

(3.) On behalf of the defence, it was suggested that Gajkishore (P. W. No. 4), was the culprit and that Haria was away at the time in his father-in law's village of Gonra, ten or twelve miles away, and had been falsely implicated on account of enmity. The learned Judge found that this defence was not made out, and considered that the jury had totally failed to appreciate and weigh the evidence, having regard to the fact that it was not suggested by the defence that some third per-son had committed the offence (the view expressed by them as assessors).