Dasrath Singh and others vs Emperor

The appellants, Dasrath Singh, Suraj Singh (son of Santokhi Singh). Suraj Singh (son of Dular Singh) and Iswer Singh have been convicted u/s 379 of the Indian Penal Code and hare been sentenced to seven years'' rigorous imprisonment each; the other appellant, Sant Prokash Singh, has been sentenced to the same term of imprisonment u/s 379 , 114, Indian Penal Code. The trial was by Jury and the contention of the learned Counsel for the appellants is that there has been misdirection in the charge to the Jury.

The facts of the case as alleged by the prosecution are, shortly, that for some time there has been a dispute between Kishun Lal and his nephew Gajadhar Prasad regarding the possession of two villages which adjoin each other. The tenants are chiefly Gbalas and they have taken the side of Gajadhar Prasad and have been paying rent to him and his brothers. Kishun Lal attempted to get'' rent without success and eventually he took the aid of Bachhu Singh, one of the proprietors of an adjoining village Pipra. Village Pipra is inhabited by Babhans and tenants of Bachhu Singh. In order to coerce the tenants of Barka and Chotki Kunhri, Bachhu Singh''s gomashta the appellant Sant Prakash Singh with about 20 men went on the morning of the 5th of July last to Barka Kunhri. Sant Parkash rode with a sword in his hand and the rest of the mob followed him armed with swords or lathis. When they got to Barka Kunhri they looted the houses of Bhuan Goala, Tanak Goala and Bansi Goala and beat them. They them went to Chhotki Kunhri and did the same thing at the houses of Gangoo Goala, Abhiram Goala and Dila Goala.

Two men Sital Singh and Narayan Singh Kurmi went to Fatehpore Thana and gave information to the Sub-Inspector of Police of an occurrence which had taken place at Barka Kunhri. This was not the occurrence with which we are at present concerned, but the Sub-Inspector went to the village and when he got there he found Bhuan Goala and others injured; so he took their statements and sent them to hospital. He then enquired into the case. On the 13th July he went to the hospital and took the statement of Bhuan Goala and treated it as the first information in the case. He then continued the investigation which eventually led to the sending up and conviction of the present appellants.

The case was tried by the Assistant Sessions Judge of Gaya and it has been tried by him with great care. The charge to the Jury is also an exceedingly fair one; but it is contended by the learned Counsel for the appellants that the learned Assistant Sessions Judge has committed an error in law with regard to the first information and that in connection with this first information he has misdirected the Jury. Now what happened is this. The sub-Inspector on the 5th of July took the statement of Bhuan Goala. He did not, however, treat this as the first information, but on the 13th of July he recorded Bhuan''s statement again and this statement he did treat as the first information. This was a mistake on the part of the Sub-Inspector but if the mistake had stopped there it would have been of little consequence. Unfortunately, however, possibly because he did not know of the statement of the 5th of July the learned Sessions Judge allowed the statement of the 13th of July to be proved as the first information and he did not have the statement recorded by the Sub-Inspector on the 5th of July (which was really the first information) proved at all. In argument, however, this statement was evidently referred to and apparently it was contended that the statement of, the 13th of July was not the first information The learned'' Assistant Sessions Judge realized the-correctness of this contention and he told the Jury that the statement of the 5th of July was the first information and that the statement of the 13th of July was not. Unfortunately, however, he cold the Jury, what the purport of the statement made on the 5th of July was, although the statement had not been proved and was not on the record; and, furthermore, he told the Jury that the statement of the 13th of July merely amplified the statement of the 5th of July and that its importance was not more than a statement made in the ordinary course to a Police officer. The contention of the learned Counsel for the appellants is that the learned Assistant Sessions Judge had no right to place the statement of the 5th of July before the, Jury and that he should have informed the Jury that the statement of the 13th of July was not evidence at all and that, except in so far as its contents may have been brought out in evidence for purposes of corroboration or contradiction they should discard it entirely from their minds. These contentions are, in my opinion, uncontrovertable, and under the circumstances, the only course is to set aside the convictions and sentences and to remand the cast for re-trial. I may say that I do this with considerable reluctance because, the learned Assistant Sessions Judge''s charge is a good one and very fair to the accused persons; but the facts remain that he has placed before the Jury a statement which is not on the record and he has not told them that they should exclude from consideration a statement which is not evidence in the case. I would, therefore set aside the convictions and sentences and direct that the case be re-tried. There will be no order as to bail.

Das, J.

I agree.