Haria Dusadh and Another vs Emperor

Imam, J.—In this appeal there are two appellants, Haria Dusadh and Sabru Mian. Haria Dusadh was convicted by the Additional Sessions Judge of Bhagalpur u/s 395, Penal Code, and sentenced to two years'' rigorous imprisonment and a fine of Rs. 50, in default three months further imprisonment. Sabru Mian was convicted u/s 412, Penal Code, and sentenced to undergo rigorous imprisonment for six months. At the time the appeal was admitted by this Court a notice was issued upon the appellants to show cause why their sentences should not be enhanced.

Village Sarmania is 12 miles from the police-station Colgong, and it is at this village that the prosecution alleged a dacoity was committed some time after mid-night of 27th April 1943 in the house of one Hansi Koeri. In the course of the dacoity several articles were removed, including utensils and grains. The daooits also assaulted two persons, namely, Debi and Ghoghan, who were stopping at the place of Bansi Koeri. These men had come to the latter''s house to act as bearers presumably to carry a palki in which the complainant intended to send his ailing daughter to her husband''s place in village Gazichak, 3 or 4 hoses from village Sarmania. The dacoits, it appears, who were well armed, inflicted very severe injuries on Debi so much so that he was for some time unconscious. The medical evidence would tend to support the allegation of Debi that he had been mercilessly assaulted by the dacoits and that he had consequently lapsed into unconsciousness. Debi Kahar had as many as ten injuries on his person, and Ghoghan eight. The daooity at the house of Hansi Koeri was not seriously questioned before us, and having regard to what the Sub-Inspector found when he arrived at the house of Hansi Koeri, there cannot be the slightest doubt that a dacoity was in fact committed in the complainant''s house and that there is no reason to suspect the evidence in the case led in that respect.

Before a first information report was lodged at the police-station concerning this dacoity one Bhima Dhangar was produced before the Sub-Inspector at police-station Colgong by certain chaukidars, and a saneha was recorded with reference to it. It appears that some 15 chaukidars including one Basanta Dusadh were returning from the police-station after receiving their salaries. When they had reached village Kujha they decided to check the attendance of certain bad characters in that village. They found that this Bhima Dhangar was absent from his house, and accordingly they so posted themselves in order to apprehend this man when he returned to his house. Somewhere about dawn Bhima Dhangar was seen coming when he was challenged by the chaukidars who arrested him there and then, and thereafter took him to the police-station where they arrived at about 10 A.M., on 28th April 1943. The first information was lodged by Hansi Koeri at 6 P.M. on 28th April 1948, at the police-station. It would appear from the evidence that the police left the thana somewhere about 2-30 A.M., on 29th April 1943, accompanied by Bhima Dhangar. The party then proceeded to village Kujha, where the Sub-Inspector left this individual in the charge of certain police officials in order to make a search in certain houses, and the Sub-Inspector himself proceeded to village Amdanda. The Sub-Inspector on arrival at Amdanda searched the house of Haria Dusadh at 7 A.M. in the presence of certain witnesses from where he recovered two lotas and a thali. Haria Dusadh, who was present at the time of the search, was then arrested. The Sub-Inspector then proceeded to village Sarmania, where he reached somewhere about 10 A.M. After having inspected the place of dacoity and after having examined certain witnesses he again left for village Amdanda at 4 P.M., on 29th April 1943. He reached Amdanda at 5.80 P.M., where he searched the house of Sabru Mian in the presence of witnesses, and re-covered one Kalsi and a lota and half a seer of Mirchai. He returned to the police-station on 30th April 1943, from where he forwarded Bhima Dhangar to the Sub-divisional Officer, Bhagalpur, in order that his confession may be recorded. On 1st May 1943, the Sub-Inspector returned to village Sarmania, when he examined a number of persons, including P.W. 11, Ratan Beldar.

A test identification parade was held by an Honorary Magistrate, Rai Bahadur Gajadhar Prasad Sao (P.W. 2), at his bungalow at Colgong, on 17th May 1948. At this parade the articles which were recovered from the houses of Haria Dusadh and Sabru Mian were put up for test identification, Sabru Mian was ultimately arrested on up November 1948. The trial was held with the aid of four assessors, who were unanimously of the opinion that Bhima Dhangar was guilty, and that the appellants Haria Dusadh and Sabru Mian were not guilty. The Additional Sessions Judge acquitted Bhima Dhangar, but convicted the appellants.

I have already held that a dacoity was committed in the house of Hansi Koeri at village Sarmania, and it now remains to be considered as to whether the evidence against the appellants is satisfactory. Haria Dusadh was identified by P.W. 11, Ratan Beldar, as one of the dacoits who had attacked the house of Bansi Koeri. The only ground on which his evidence has been rejected by the learned Judge was that his name was not mentioned in the first information report as having identified this appellant, although Ratan Beldar states in his evidence that immediately after the departure of the dacoits he had told Hansi Koeri and his son Bengi Koeri that he had identified the appellant. This witness, as I have already stated, was examined by the Sub-Inspector on 1st May 1943. There is nothing to show as to why this witness should depose falsely against the appellant.

It is true that the witness''s name is not mentioned in the first information report as one of the villagers who had identified the appellant. The omission to mention the witness''s name in the first information report may be due to various reasons over which the witness had no control. It may be that Hansi Koeri was a person of a confused mind and weak memory. The failure of Hansi Koeri to mention Ratan Beldar''s name in the first information report must undoubtedly be kept in mind, but is not in itself a sufficient ground for rejecting the testimony of Ratan Beldar, unless one could be sure that this witness had some motive for deposing against the appellant. It is significant that Hansi Koeri stated in cross-examination that Singhoo Koeri, Eamdhani Goala and Chhatri Koeri were the persons who had turned up first before him after the dacoity, and the cross-examiner put him the question as to whether he recollected the names of the other basti people who arrived at his house after the departure of the dacoits. Hansi Koeri replied: "How many names can I remember." Speaking for myself, I do not think I can share the view taken by the learned Judge in rejecting the testimony of Ratan Beldar.

As I have already said, there is no adequate motive proved in the case as to why he should depose against the appellant. The Sub-Inspector had reached village Sarmania somewhere about 10 A.M., on 29th April 1943. He had obviously received some information, after having inspected the place of occurrence and examined some of the witnesses, which led him to go back to Amdanda to make further searches-in the houses of certain persons in that village. He had already been in village Amdanda that morning before he went to village Sarmania, and I can only conclude that his information, whatever it was, must have been of an urgent nature which induced him to stop further investigation at Sarmania and proceed to Amdanda. On 30th April 1943, the Sub-Inspector was at the police-station busy with various works and did not go to Sarmania again till 1st May 1943. The little delay in examining Ratan Beldar must, therefore, be ignored, and there is nothing to show on the record that Ratan Beldar made a different statement from that which he had made in Court concerning the participation of the appellant in the dacoity.

I would, therefore, rely upon the evidence of this witness against this appellant. (Then after discussing further evidence his Lordship came to the conclusion that Haria Dusadh was guilty u/s 395, Penal Code, and Sabru Mian u/s 412 of the Code.)

As to the rule for enhancement of the sentences, I would say in the clearest possible terms that the learned Judge completely failed in imposing an adequate sentence for the offences committed by the appellants. I cannot understand under what process of reasoning the learned Judge thought that two years and Rs. 50 fine was sufficient punishment for the offence of dacoity, particularly when one knows that Debi Kahar was mercilessly assaulted. In normal times the standard of punishment for the offence of dacoity was hardly ever less than five years, and it has been pointed out by this Court for many months that the rise in dacoity in the province called for deterrent sentences. In my judgment, the sentence on Harihar Dusadh ought to be enhanced to at least seven years'' rigorous imprisonment.

In the case of the appellant Sabru Mian, the sentence of six months'' rigorous imprisonment for a conviction u/s 412 is again, to my mind, wholly inadequate. A question, however, arose as to whether in the case of this appellant the sentence should be enhanced in view of the fact that he had already served his sentence and had been discharged from jail for some three months at least. The judgment of the Additional Sessions Judge was delivered on 12th December 1944, and the appeal was presented to this Court on 9th February 1945. Normally the appeal should have come up for admission on 12th February 1945, but on 9th February, at the request of the advocate for the accused two weeks'' time was given before the appeal was put up for admission.

The appeal came up for admission on 23rd February, and here again at the request of the learned advocate for the appellant the appeal for admission was postponed till 5th March 1945. The appeal was put up for admission on 6th March 1945, and this Court while admitting the appeal issued notices of enhancement on the appellants. It is, therefore, quite clear that in any event in spite of something like a month''s delay caused by the appellants'' Counsel before the appeal was admitted this Court issued the rule while the sentence on the appellant still prevailed and the appellant had yet not served out his sentence. It is true that since the admission something like six months elapsed before the appeal was actually set down for hearing, but that has been largely due to the congestion of work in the Court.

In normal circumstances the appeal would have been heard in all probability before the sentence of Sabru Mian had been served out by him. The point in issue is as to whether the appellant having served out his sentence it is within our power to enhance his sentence. I am quite satisfied on reading the decisions in Emperor v. Jagat Singh AIR 1920 Lah. 213, Emperor Vs. Shankar Narayan Gosavi and Others, and Emperor v. Shahzad Ahmad AIR 1928 Lah. 961 that it is within our power to enhance a sentence on an accused although he may have served out his original sentence and have been discharged from jail custody, provided the case calls for such an enhancement. It is perfectly true that the power of enhancement is exercised by the Court with reluctance and on rare occasions, but there are times when one is compelled to exercise the powers the Court possesses to inflict what should be the proper sentence in a case. For example, an accused may be tried before a Sessions Judge for murder, but is ultimately convicted for culpable homicide not amounting to murder and the Judge for apparently inadequate reasons inflicts a sentence of one day''s imprisonment and some fine. In any event such a case could not possibly come to the notice of the Court until long after that one day''s imprisonment had been served out by the accused. I decline to think that this Court will be so powerless as not to enhance the sentence if it considered that a wholly inadequate sentence of imprisonment had been imposed. I have no doubt in my mind that in law we have the power to enhance the sentence although the original sentence has been served out by an accused person. As to whether one should or should not depend upon the circumstances of each case.

In this particular instance I am quite convinced that Sabru Mian should receive a much severer sentence than he received at the hands of the learned Judge. Receivers of stolen property are the greatest source, in my opinion, of encouragement to dacoits, and in the case of this appellant such a recent possession after the dacoity inclines me to think that if he was not actually one of the dacoits himself, he must have been in very close contact with them to have been the recipient of the stolen property within 40 hours of the occurrence.

In my judgment, the sentence of Sabru Mian should be enhanced, and nothing less than five years'' rigorous imprisonment would meet the ends of justice.

I would accordingly enhance the sentence of Haria Dusadh to seven years'' rigorous imprisonment, but would set aside the sentence of fine of Rs. 50, and of Sabru Mian to five years'' rigorous imprisonment.

The appeal is accordingly dismissed and the rule made absolute.

Meredith, J.

I agree.