Dwarika Lohar and Others vs Emperor

Shearer, J.—The appellant, Dwarika Lohar, has boon convicted by Mr. Syed Ozair, Deputy Magistrate, u/s 395, Penal Code, and has been sentenced to undergo rigorous imprisonment for six years. The other two appellants have been convicted u/s 412, Penal Code, and have been sentenced to undergo rigorous imprisonment for five years each.

The dacoity, in which Dwarika Lohar is said to have been concerned, took place on 8th January 1940, in the house of one Bhushan Chandra Khan, a shopkeeper of Bamu, a village in Manbhum. Between 1 A.M. and 2 A.M. his shop, in which apparently he also resides, was attacked by some twenty or thirty men, variously armed. Bhushan Chandra Khan and his wife, and young children retreated to the upper storey. Two of the dacoits pursued them there, and coerced Bhushan Chandra Khan into making over his cash-box, which contained a substantial sum of money, and his wife into yielding up the ornaments which she was wearing. Next day, Bhushan Chandra Khan went to the police station at Barabazar and lodged a first information. In this he gave a description of the two dacoits, who had come up the stairs into the upper storey and threatened his wife and himself.

The Sub-Inspector, apparently had no great difficulty in discovering that the appellant, Dwarika Lohar, answered the description of one of these two men, and he took him into custody, and also searched his house on 18th January 1940. When the house was searched, a dhoti, which was, ultimately, shown to belong to Bhushan Chandra Khan, was discovered.

The appellant, Debu Lohar, is the father of Dwarika Lohar, and as he was at the house when it was searched, the Sub-Inspector took him also into custody. Dwarika Lohar appears to have made a statement to a schoolmaster, who acted as a search-witness, and, in consequence of this, the Sub-Inspector proceeded to the village in which Mansa Ram Bhumij resides, and searched his house. From this house he recovered a lota, which had a hole in the bottom, which was stopped up with wax. A lota answering this description was included in the list of stolen property, appended to the first information, and there can be no doubt that it was one of the articles taken away by the dacoits.

So far as Dwarika Lohar is concerned, it has, I think, been shown that he did take part in the daeoity. There is no reason to suppose that Bhushan Chandra Khan knew him previously and suspected him of having been responsible for the dacoity, and, therefore, gave a description of him to the Sub-Inspector. It seems clear that he was arrested as he answered the description of one of the two dacoits given in the first information, and, as he was subsequently picked out by both Bhushan Chandra Khan and his wife at a test identification, it is.

I think, quite certain that he took a leading part in the commission of this crime. The dacoity was a very daring one, indeed, and the sentence which has been imposed on him, is not, by any means, too severe. The case of Dwarika Lohar''s father, the appellant Debu Lohar, who has been convicted u/s 412, Penal Code, stands, however, on a very different footing. There is nothing on the record to suggest that Debu Lohar was wearing the dhoti which was seized, or had appropriated it in any way, to his own use. When his son had taken part in the commission of the dacoity, the presumption which would naturally be drawn would be that the dhoti had remained in his possession, and, if so, Debu Lohar cannot be made, in any way, accountable for it, merely because it was in the house which his son and himself jointly occupy. The appeal of Dobu Lohar ought, therefore, in my opinion, to be allowed. The conviction and sentence) imposed on him will be set aside, and ha will be released and set at liberty forthwith.

As I have already said, it has been shown that the lota, which was recovered from the house of Mansa Ram Bhumij, belonged to Bhushan Chandra Khan, and was taken away by one of the dacoits. I am inclined to think that Mansa Ram Bhumij might well have been tried for and convicted of dacoity, as the lota was recovered within ten days or so of the commission of the crime, and Mansa Ram Bhumij belongs to a village contiguous to that occupied by Dwarika Lohar, who was, undoubtedly, one of the leaders of the dacoits.

The lower Court, however, framed a charge u/s 412, Penal Code, against him. Mr. G.C. Banerji for the appellants referred to Queen v. Samiruddin (72) 18 W.R. Cr 25 in which it was pointed out that when a person is found in possession of property taken in a dacoity, and is unable to give any reasonable explanation for its being with him, it may be presumed that he knew the property to have been stolen, but not that he knew or had reason to believe that it was the proceeds of a dacoity rather than of a burglary or a theft. In order to justify his conviction on the more serious charge, there must be evidence, circumstantial or oral, to show that he knew or had reason to believe that a dacoity had been committed and the property had been taken in it or that the person from whom he obtained it belonged to a gang of dacoits and the property was stolen property.

The conviction of Mansa Ram Bhumij ought, therefore, to be altered from one u/s 412 to one u/s 411, and the sentence imposed on him from one of rigorous imprisonment of five years to one of rigorous imprisonment for three years. Subject to this modification, the appeal of Mansa Ram Bhumij, as also the appeal of Dwarika Lohar, will be dismissed.