Emperor vs Ardali Mian and Others

Rowland, J.—This is a reference by the Assistant Sessions Judge of Bhagalpur against the unanimous verdict of a jury finding all the six accused not guilty of a charge u/s 395, I.P.C., and committing dacoity in the house of one Dukha Jha of Shahbad, P.S. Bihpur. The dacoity was committed by about forty persons on the night of 31st May 1932, and first information was laid on 1st June 1932 at 11-30 a.m. by Madan Mohan Jha, a neighbour and gotia of Dukha, who had himself received injuries.

The Sub-Inspector reached Shahabad at midnight and all the principal witnesses were examined the following day. The six accused persons were named in the first information and each of them has been identified by more than one witness. That the dacoity in fact took place, there is no room for doubt whatever.

Dukha is the richest man in his village and is a vary substantial cultivator and money-lender. It is said that cash and ornaments to a total value of Rs. 2,700 were taken. A number of persons were injured in the dacoity, that is to say, P.W. 1, Ghirit Lal Jha, P.W. 3, Madan Mohan Jha, P.W. 4, Jhing Lal Jha, P.W. 6, Bateswar Mandal, P.W. 7, Newa Lal Jha, P.W. 9, Basuki Jha, P.W. 14, Gobardhan and P.W. 16, Kunji Lal Jha. Medical evidence proves the injuries sustained. P.W. 5, Dukha, P.W. 11, Akhileswar Jha and P.W. 10, Bhadai Mandar are said to have received injuries but were not medically examined. The Sub-Inspector found unmistakable traces of a raid by a large body of persons. It is not necessary to go into all the details of broken boxes, scattered articles, blood marks, etc., but it may be pointed out that burnt straw was found in front of the darwaza and straw was found to have been taken out of the eaves and ashes of burnt papers and cloth were also round inside the angan.

This is relevant to the allegation of the prosecution witnesses that the dacoits burnt straw and by the light of the burning straw identification of them was made by the witnesses. The witnesses also stated that there was a lantern hung at a place marked B in the map. The Sub-Inspector stayed some nights in the village and he observed that it was the practice to keep a light burning at that place. Thus in spite of the fact that there was no moon at the time of occurrence the witnesses are not deposing to anything impossible when they say that there was sufficient light for them to identify the persons whom they have named. All the six accused on trial were known to the witnesses from before.

The defence was that the accused have been falsely implicated by reason of enmity of the prosecution witnesses towards the accused. No evidence was adduced by defence to establish the existence of any such enmity. The suggestions as put in cross-examination and in the written statements are as follows: (After considering the defence statement and evidence of witnesses, his Lordship proceeded). I cannot believe that the identification of the accused by the prosecution witnesses is maliciously false. It is next to be considered whether the identification of each accused is sufficient to exclude with reasonable certainty the possibility of mistake. (After considering the case of each of the accused separately, his Lordship proceeded.) I would sentence Ardali Mian, Darab Lal Missra, Sarah Lal Missra and Chaudhry Gope each to undergo rigorous imprisonment for five years u/s 395, I.P.C.

We have been assisted by a very clear and detailed letter of reference from the Assistant Sessions Judge. His charge to the jury was detailed, careful and thorough, and it is in no spirit of fault finding that I would suggest to the Assistant Sessions Judge that to charge the jury at very great length may itself be an obstacle to their arriving at a correct decision. They are laymen and to enable them to come to a correct decision it is necessary that essentials should be clearly brought ought and not overwhelmed and obscured by too great mass of detail.

With regard to the suggestions of enmity the lines on which these are dealt with in the charge will appear from a specimen extract. Sarab Lal had said that he refused to give bamboos to Newa Lal:

Newa Lal says that he did not ask for any bamboo at all. No evidence has been adduced by this accused in support of his statement but the accused is not bound to adduce any. Darab Lal makes the same statement as Sarab Lal. It is for you to decide whether there was really any quarrel for the grounds alleged.

Similar treatment is given to other suggestions. The Assistant Sessions Judge might have made it clearer to the jury that mere suggestion does not amount to proof, and that with regard to such suggestions the denials were unrebutted.

He might have told the jury that when a definite case is set up, it is for the accused to substantiate it; and the presumption of innocence does not amount to a presumption that witnesses are perjured. He may with advantage study Ghanshyam Singh and Others Vs. Emperor, .

Fazl Ali, J.

I agree.