SHEO BALAK DUSADH Vs. EMPEROR

JUDGEMENT

(1.) Sheo Balak Dusadh, aged about 35 years, resident of Budhipur, police circle Ubhaon in the district of Ballia, has been convicted under Secs.802 and 457, Indian Penal Code, and sentenced to transportation for life and rigorous imprisonment for a period of five years respectively for the two offences. The sentences have been ordered to run concurrently.

(2.) Village Bishunpura adjoins village Budhipur and the prosecution story is that on the night of 3 and 4 November 1945 sis or seven thieves came to the house of one Bansi, a resident of village Bishunpur and dug a hole in the western wall of his house. After completing the hole, they were trying to bore another in the second wall of the house when Mt. Motia, wife of Bansi's nephew Dhanai, who also lived in the same house, woke up on hearing the noise. According to the evidence it was three gharis to one pahar before sunrise. She roused Dhanai and Bansi from their sleep. Bansi is an old man of 80 years. Jita is another relation of Bansi who was also living in the same house. Dhanai and Jita went to the side where the thieves had broken into the house and raised an alarm. They noticed eight or nine thieves. The alarm brought a number of neighbours including the deceased Gokul to the scene of occurrence. Seeing them, the thieves ran away and they were pursued by Dhanai, Jita, Gokul and others. The thieves went - cunning in the direction of Budhipur and after they had crossed the boundary between villages Bishunpura and Budhipur, Gokul struck Surat, one of the thieves, with his lathi in order to stop him and to effect his arrest. Surat in return Struck Gokul with his lathi and felled him to the ground. It is said that the appellant Sheo Balak was also one of the thieves and was armed with a spear. He also struck Gokul with it and he was killed on the spot. Some men from village Budhipur also arrived in the meanwhile and presumably a further beating was given to Surat as a result of which he also died. The dead bodies of Gokul and Surat were brought to the house of Bansi and a report of the occurrence was made by Mohammad Yaqub Mukhia at the police station at about half past seven the next morning, the distance of the police station being about 5 miles from the village. In this report it was said that Gokul had been killed by the lathi blow of Surat and there was no mention of any spear injuries caused to Gokul. It was said that the appellant Sheo Balak and one other thief named Raghunandan Singh inflicted injuries on Jita with lathis and spears. The medical evidence, however, shows that Gokul had received two stab wounds on the chest in addition to three bruises on different parts of the body. Death was due to shock and haemorrhage resulting from the penetrating wounds of the chest. The evidence of the prosecution witnesses, however, is that the penetrating wounds On Gokul had been caused by the appellant with his spear. The appellant pleaded not guilty and said that he had been implicated on account of his friendship with Surat who had committed a dacoity at the house of Bansi and had been killed by the villagers on the spot. He, however, produced no evidence in his defence.

(3.) Mohammad Yaqub Mukhia who made the first information report was not an eye-witness of the occurrence and his statement is that he had made the report on the information which he had received from Sahdeo and others. It is not in evidence that Sahdeo was one of the eyewitnesses of the occurrence and apparently the facts stated in the report by Mohammad Yaqub were based on hearsay and much importance cannot be attached to the discrepancies which are to be found in it. According to this report Gokul had been hit only a single blow with a lathi and, in view of the injuries, actually found on the corpse of Gokul the statement contained in the report is obviously not correct. The prosecution examined, Mt. Motia, Dhanaj and Jita along with Jamuna, Parmeshwar, Sarju, Jaddu, Ram Jas, Hira Pandey and Ram Jatan Pandey who are alleged to have chased the thieves and. witnessed the occurrence. All of them said that the deceased Gokul was assaulted by Sheo Balak with a spear and there seems to be no adequate reason why the evidence of all these witnesses, who appear to be quite independent, should not be accepted as correct. According to the medical evidence Gokul died of spear wounds and if the evidence of these witnesses is believed, there can be no doubt that the appellant is responsible for the death of Gokul. Jita Ahir had received three injuries on his person and his left ulna bone was fractured. Dhanai had also received three injuries and there can be no doubt whatsoever that these two persons were actually present at the time when Gokul is said to have been assaulted by the thieves and the evidence of these witnesses is fully corroborated by the evidence of the other villagers who are said to have given the thieves chase.