Ramadhar Tewary and Others vs Emperor

Das, J.—These are three appeals which have been heard together, and the present judgment will govern all the three appeals. There are 8 appellants before us. Three of them, namely, Raghubir Dusadh, Babu Ram Kurmi and Haricharan Dusadh, have been found guilty u/s 896, Penal Code, and have been sentenced to rigorous imprisonment for 7 years each by the learned Assistant Sessions Judge of Gaya. The remaining five appellants, namely, Ramadhar Tewary, Daroga Dusadh, Inderdeo Dusadh, Bharath Dusadh and Hari Kishun Dusadh, have been found guilty u/s 412, Penal Code, and have been sentenced to a similar period of rigorous imprisonment. One of the appeals has been preferred from jail, and the other two have been filed in the ordinary way.

The prosecution case against these appellants was the following: There are three brothers, Jagdeo Sao, Sahdeo Sao and Ramcharitar Sao, who have two shops at a place called Usri Bazar within the police station of Arwal, in the district of Gaya. In the two shops the three brothers dealt in Bales of cloth and groceries. Usri Bazar is situated by the side of the river Sone. On the opposite side of the river is a village called Bishunpur, which is within the jurisdiction of Piro police station in the district of Shahabad. It was alleged by the prosecution that on the night between 8-6-1943, and 9-6-1943, a dacoity was committed in the two shops of the three brothers mentioned above. The dacoity was committed at about 1-30 A.M. on 9-6-1943. The dacoits were about 40 or 50 in number. One of them was armed with a gun, and the others were armed with various deadly weapons. The dacoits broke open the two shops, removed new cloths and other articles. The villagers chased the dacoits, and the prosecution alleged that one of the dacoits fired his gun several times, wounding some of the villagers, including one of the brothers, Jagdeo Sao. At the dacoity two persons were identified by name, namely, Babu Ram Kurmi and Raghubir Dusadh. Information was given at the police station of Arwal at about 9-30 A.M. on 9 6 1943. In:this first information the names of two of the appellants Raghubir Dusadh and Babu Ram were mentioned, A third dacoit, Ramdhar Singh, was also identified at the dacoity. He was not, however, put on trial in the present case in circumstances which have been mentioned by the learned Assistant Sessions Judge. We are not concerned with him in the present appeals.

On 9-6 1943, some time in the afternoon, the dafadar of village Bishunpur on the other side of the river Sone received information to the effect that the gang of Ramadhar Singh would distribute properties removed by dacoity on the bed of the river. It may be stated here that the width of the river at that particular place is about two miles and most of it is sand. The dafadar of village Bishunpur, a man called Dhanukdhari Singh, sent on the information which he had received to his police station, namely, police station Piro in the district of Shahabad. Before he could get help from the police station the dafadar received further information to the effect that the dacoits had already come and were distributing the property removed by them. On this information the dafadar gathered together some chaukidars and other villagers and proceeded to the bed of the river at about 9 or 10 P.M. Hearing the sound of footsteps, the dafadar concealed his party in some thatching grass. When the dacoits came near, the dafadar flashed his torch. Thereupon, there was a scuffle between the dacoits and the party of the dafadar. The prosecution allege that some of the dacoits were carrying bundles of cloth. In this scuffle one chaukidar was mortally injured and died subsequently. One of the persons who were carrying bundles of cloth was arrested by the party of the dafadar. This person is stated to be the appellant Ramadhar Tewary. A Sub-Inspector of police came from Piro police station at about 2 or 8 A.M. on 10-6-1943. The dafadar and his party had taken Ramadhar Tewary to the house of the dafadar in village Bishunpur. When the Sub-Inspector of police arrived there, Ramadhar Tewary was made over to him with the bundle of cloth which he was carrying when he was seized by the party of the dafadar. The Sub-Inspector of police took down the statement of the dafadar which was subsequently treated as the first information of a case which was tried in Arrah, and to which I shall personally make a reference.

After the arrest of Ramadhar Tewary the houses of certain other persons, including the four appellants Daroga Dusadh, Inderdeo Dusadh, Bharath Dusadh and Hari Kishun Dusadh, were searched on 10th June 1943. These persons, it is stated, were seen by the dafadar and his men amongst the dacoits with whom the party of the dafadar had a scuffle. These persons were able to make good their escape, though they had been identified by the dafadar and his men. As a result of the search of their houses certain articles, such as new cloth etc. were recovered, which form the basis of the charge u/s 412, Penal Code, against these persons. The bundle of cloth, which Ramadhar Tewary was carrying when he was arrested, formed the subject-matter of the charge u/s 412, Penal Code against him. After completing investigation charge-sheet was submitted against the appellants, and they were tried by the Assistant Sessions Judge of Gaya with the result stated above.

It would be convenient to take up the three appeals separately. As far as Ramadhar Tewary is concerned, his defence was that he was an innocent passer-by, who was returning from his father-in-law''s place in village Misrolia and that he was arrested in a village called Dhokraha by the dafadar. His case was that no bundle of cloth was found with him, and that the dafadar arrested him on mere suspicion. The evidence against Ramadhar Tewary consists of the testimony of two witnesses, Dhanukdhari Singh (P.W. 17) and Balla Lohar (p.w. 2l). The evidence of both these witnesses clearly shows that Ramadhar Tewary was arrested with a bundle of cloth when there was a fight between the dacoits on one side and the party of the dafadar on the other on the bed of the Sone river. Learned Counsel for the appellant has taken us through the evidence of these two witnesses. As far as the dafadar is concerned, there can be no doubt that he was the person who had received information earlier in the day that the gang of Ramadhar Singh would be arriving at the Sone river on the night in question. The dafadar had, as a matter of fact, sent information to the police station, which information is Ex. i in the record. It can hardly be argued that the dafadar had concocted a false information even before the arrest of any person. The evidence of the dafadar Dhanukdhari Singh (p.w. 17) is supported by the evidence of Balla Lohar (p.w. 21). The evidence of this witness has been criticised before us on the ground that he was examined for the first time in the Court of Session, and that he was not examined before the Committing Magistrate, or in the earlier trial at Arrah. The evidence of this witness, however, shows that ho was examined that very night, namely, the night of the 9th June 1943 when the Sub-Inspector of Police (p.w. 22) came to village Bishunpur from Piro police station. It cannot, therefore, he said that Balla Lohar (p.w. 2l) was produced at a late stage and was not present at the time when there was a fight between the dacoits and the party of the dafadar. I have no reason to disbelieve the evidence of these two witnesses, P. Ws. 17 and 21, both of whom prove that the appellant Ramadhar Tewary was arrested with a bundle of cloth when there was a scuffle between the dacoits on one side and the dafadar''s party on the other.

As to the identity of the cloths which were found in the bundle Ramadhar Tewary was carrying, the evidence consists of the testimony of Sahdoo Ram (p.w. 1) and Ramchandar Sao (p. W 2). It appears that Ramadhar Tewary, as also the bundle of cloth which he was carrying, were made over to the Sub-Inspector of police (P.W. 22) when he arrived at the place of occurrence at about 2 or 8 A.M. on 10-6 1943. The Sub-Inspector of Police made a list of the cloths which were in the bundle. This list is embodied in Ex. 5. There are four articles which were found in the bundle of Ramadhar Tewary, the identity of which has been clearly established by the evidence of Sahdeo Ram (p.w. 1) and Ramcharitar Sao (p.w. 2). These four articles are: (a) one dhoti bearing No. 4026 (Ex. 1), (b) another dhoti bearing No. 2221 (Ex. 2) (c) a sari (Ex. 11) and (d) a chadar (Ex. 18). These four articles were put in a test identification parade on 14-9 1943. These were mixed up with several other articles of a similar nature. Both Sahdeo Ram and Ramcharitar Ram (P. Ws. 1 and 2) were able to pick out these four articles as the articles which had been stolen by the dacoits from their shops on the night of 9-6-1943. Learned Counsel for the appellant has criticised the evidence of these two witnesses on the ground that they were not in a position to identify these articles which are available in many other shops. The numbers which the dhotis bore are numbers of the manufacturer and will be found on other dhotis manufactured by the same firm. The two witnesses Sahdeo Ram and Ramcharitar Sao have, however, stated that they were able to identify the aforesaid four articles by reason of the fact that each one of them bore in pencil figures showing the price of the articles. As is well known, shopkeepers put certain exaggerated figure on cloths, from which they alone are in a position to find out the cost price of the articles. Sahdeo Ram (p.w. 1) has explained that he added a sum of Rs. 2-8-0 in the price shown on each article, and the actual price could be known to the shopkeeper by deducting the sum of Rs. 2-8-0 from the price figure shown on the dhotis. By these price notings the two witnesses were able to pick out the cloths which had been stolen from their shops. Learned Counsel for the appellants has placed before us the evidence of these two witnesses Sahdeo Ram (p.w. 1) and Ramcharitar Sao (P W. 2) as also the evidence of the officer before whom the test identification parade was held. That evidence leaves no room for doubt that Sahddo Ram and Ramcharitar Sao were in a position to identify the cloth which had been stolen from their shops on the night in question and that they correctly identified the four articles which were found in the bundle of Ramadhar Tewari as the articles which had been removed by the dacoits from their shops. In my opinion, the prosecution has clearly established the identity of the stolen goods.

That Ramadhar Tewary had the necessary guilty knowledge is very clear from the circumstances of this case. Ramadhar Tewary was found with a bundle containing the stolen cloths very soon after the dacoity. As a matter of fact, he was one of the members of a gang who were distributing the looted property on the bed of the river Sone. When they were surprised by the party of the dafadar, they engaged in a fight with the latter, and though some of them were able to make good their escape, Ramadhar Tewary was arrested at the spot with the bundle of cloth which ho was carrying. Ramadhar Tewary examined two witnesses to prove that he was an innocent passer-by and was returning from his father-in-law''s place when be was arrested by the dafadar at village Dhokraha. One of these witnesses is Ramadhar''s own brother and another is a villager of Dhokraha. The learned Assistant Sessions Judge has considered the evidence of these two witnesses, and I am in agreement with the reasons given by him for discarding their evidence. Dhokraha did not lie in the direct route from Misrolia to Ramadhar''s own village, and no reasons have been given why Ramadhar would be in village Dhokraha on the way back from his father-in-law''s place.

Next, I have to consider certain arguments raised by learned Counsel for the appellant which arise out of the judgment at the previous trial. This judgment is Ex. A in the record. It appears from this judgment that Ramadhar Tewary and certain other persons were tried by a Magistrate of Arrah on charges under Sections 148 and 396, Penal Code, in respect of the incident at the Sone river. The learned Magistrate acquitted Ramadhar Tewary and the other accused persons of both those charges. Learned Counsel for the appellant has contended that that judgment of acquittal passed by the learned Magistrate is conclusive, and cannot be reopened in a subsequent trial. He has further contended that in view of the acquittal of Ramadhar Tewary at the previous trial, he cannot now be convicted of the offence u/s 412, Penal Code. In support of his contention, learned Counsel for the appellant has relied on several decisions. The King v. Plummer (1902) 2 K.B. 339. Emperor v. Sanalal Lallubhai (13) 37 Bom 658; Emperor v. Lalit Mohan Chuckerbutty (11) 38 Cal. 559 ; AIR 1926 Cal. 450 and Ganesh Das v. Emperor (11) 9 I.C. 511 The judgment of acquittal passed at the previous trial has been placed before us, and it is clear to me that the acquittal at the previous trial merely means that the appellant Ramadhar Tewary was found not guilty of the charge of being a member of an unlawful assembly with the common object of carrying away stolen property. The question as to whether he was in possession of stolen goods removed by dacoity was not in issue at the previous trial and could not be in issue in that trial for the simple reason that an offence u/s 412, Penal Code, was not triable by the Magistrate who dealt with the earlier case. It cannot, therefore, be said that the acquittal of the appellant Ramadhar Tewary at the previous trial operates as a bar to the subsequent trial of the same person for a completely distinct offence, namely, the offence u/s 412, Penal Code. Section 403, Criminal P.C. makes the position very clear. The present case is governed by Sub-sections (2) and (4) of Section 403, and not by Sub-section (1) of the said section. The protection offered by Sub-section (1) of Section 403 extends to different offences only when they are based on the same facts and fall within the provisions of Section 236 or. Section 237, Criminal P.C. The facts of this case come within Sub-section (1) of Section 235, Criminal P.C. and, therefore, the present case will be governed by Sub-section (2) of Section 403, Criminal P.C., and not by Sub-section (1) of Section 403. If the case is governed by Sub-section (2) of Section 403, Criminal P.C., then the appellant can surely be tried for the offence u/s 412, Penal Code., and it cannot be argued that the previous judgment will stand in the way of the conviction of the appellant for the offence u/s 412, Penal Code, if the evidence given by the prosecution is found sufficient for a conviction of that offence.

Learned Counsel for the appellant has not directly raised the plea of the previous judgment being a bar to the trial of the appellant for the offence u/s 412, Penal Code. He, however, wishes to have the same result in an indirect way by taking the plea that the acquittal of the appellant at the previous trial stands in the way of his conviction at the subsequent trial. If the appellant could be tried for the offence u/s 412, Penal Code, then the Court trying him would certainly either convict or acquit him. If the judgment of the previous trial does not stand in the way of a subsequent trial, I do not see how it can stand in the way of the conviction of the appellant, provided the evidence given by the prosecution is sufficient for a conviction. The facts of the cases relied on by learned Counsel for the appellant were entirely different from the facts of the present case, and are no authority for the proposition contended for by him. The decision in (1902) 2 K.B. 339 related to a case where three persona were charged with conspiracy; two of them were acquitted, and it was held that the third person could not be found guilty of having conspired with the other two persons who had been acquitted of the same charge. (11) 38 Cal. 559 also related to a case of conspiracy, the object of the conspiracy being to commit several dacoities. It was held that the charge of conspiracy could not be sustained when the said persons were acquitted of the dacoities for the committing of which a charge of conspiracy was preferred. (13) 37 Bom 658 was also entirely different. There certain persons were charged with the offence of screening an offender. The person who was alleged to be the offender was tried at a previous trial and was acquitted. There was, therefore, no offender who could be screened. In those circumstances, it was held that the acquittal at the previous trial stood in the way of the conviction of the other two persons at the subsequent trial. The facts of the remaining two cases relied on by the learned Counsel for the appellant are also different and do not support the contention raised by him. As I have stated above, the question of the appellant Ramadhar Tewary being in possession of stolen goods which had been removed by dacoity was not in issue and could not be in issue at the previous trial. Therefore, the acquittal of the appellant Ramadhar Tewary and of the other accused persons in the earlier trial does not stand in the way of their conviction for an entirely distinct offence at the present trial.

For the reasons given above, I would hold that the appeal of Ramadhar Tewary is without merits. The sentence is not at all severe and does not call for any interference.

I now take up the appeal of the three persons who it is alleged, were seen at the dacoity itself. These three persons are Babu Ram Kurmi, Raghubir Dusadh and Haricharan Dusadh. Of these three persons, two, namely, Babu Ram Kurmi and Raghubir Dusadh, were named in the first information. Babu Ram has been identified by as many as six witnesses, namely, Sahdeo Ram (p.w. 1.), Ramcharitar Sahu (p.w. 2), Jagdeo Sahu (P.W. 4), Musafir Singh (p.w. 7), Rajaman Mahto (P.W. 10) and Brij Mahto (p.w. 11). Of these six witnesses, five knew Babu Ram by name from before, and that is why Babu Ram''s name finds place in the first information report. Musafir Singh (p.w. 7) did not know Babu Ram by name and was able to identify him at the test identification parade held subsequently. Babu Ram''s case was that he had been implicated on account of enmity. The enmity which Babu Ram pleaded was of the following kind. Babu Ram alleged that he was the brother-in-law of one Damru Mahto who had died. Damri Mahto left a daughter called Budhia and a nephew called Ramlagan. Ramlagan has transferred some lands of Damri to the two brothers Jagdeo Sahu and Sahdeo Sahu. Babu Ram alleged that he was putting forward a claim to those lands on behalf of his sister''s daughter Budhia, and, therefore, Sahdeo and Jagdeo had implicated him falsely in the present dacoity. The learned Assistant Sessions Judge has very carefully considered the evidence about this alleged enmity. One witness, Jitan Mahto (p.w. 3) was examined by Babu Ram on this point. This witness Jitan Mahto had stated that his brother, had married Budhia, and that he and his father were looking after the case of Musammat Budhia. The learned Sessions Judge has rightly pointed out that if Jagdeo and Sahadeo wanted to implicate certain persons falsely in the dacoity on account of the transfer of certain lands by Ramlagan, nephew of Damri, then the likely persons who would be so implicated would be Jitan Mahto (D.W. 3) and his father. There was no reason why Babu Ram would be falsely implicated when he was not taking any active part in the case of Mt. Budhia. Moreover, the learned Assistant Sessions Judge has pointed out that there is no reliable evidence to establish the allegation that Budhia was the own daughter of Damri. It further appears from the evidence in the record that the lands which had been transferred to Jagdeo and Sahdeo are in their possession, and there has never been any dispute between them on one side and Babu Ram Kurmi on the other. For these reasons, the evidence or the three brothers Sahdeo, Ramcharitar Sahu and Jagdeo cannot be discarded. The learned Assistant Sessions Judge has further pointed out that even if the evidence of these three witnesses is discarded, there is still the evidence of three other witnesses who saw Babu Ram Kurmi at the dacoity. In my opinion, the evidence is good and sufficient for establishing the fact that Babu Ram was one of the dacoits who had committed dacoity in the two shops in question.

Of the other two persons, Raghubir Dusad and Haricharan, Raghubir has been identified by four witnesses, namely, the three brothers and Rajaman Mahto (p.w. 10). Haricharan was not known to the witnesses from before. Therefore, his name does not find place in the first information report. He was, however, seen by two of the witnesses, namely, Sahdeo Ram (p.w. 1) and Ramcharitar (p.W. 2), and these two witnesses successfully identified Haricharan at the test identification parade. The witnesses knew Raghubir from before as he was working as a cleaner of a motor bus in village Usri. The plea of these two accused persons was that they were servants of two landlords known as Bachhi Babu and Mathura Babu of village Kankutti. It appears that some days before the dacoity there was some difference between Mathura and Bachi Babu on one side and Jagdeo on the other. The two landlords had asked Jagdeo for help by the supply of certain articles such as flour, rice, etc., on the occasion of the marriage of two daughters of the family of Mathura Babu. Jagdeo had expressed his inability to comply with the request so made. This part of the case is admitted to be true and is mentioned in the first information itself. The learned Assistant Sessions Judge has, however, rightly pointed out that there is no reliable evidence in the record to the effect that Haricharan and Raghubir were the servants of the two aforesaid landlords. Even if there was some difference between Jagdeo and Sahdeo on one side and the two landlords on the other, it does not necessarily prove that the two brothers Sahdeo and Ramcharitar were falsely naming or identifying the two persons Raghubir Dusadh and Haricharan Dusadh. The evidence of identification against both these persons is sufficient. As I have stated above, Raghubir was identified by four persons and Haricharan by two persons. In my opinion, there are no reasons to disbelieve the evidence given against these two persons.

Next comes the appeal on behalf of the remaining four persons who have been convicted u/s 412, Penal Code. These four persons are Daroga Dusadh, Inderdeo Dusadh, Bharath Dusadh, and Hari Kishun Dusadh. As I have stated above, the houses of these four persons were searched on 10-61943 by the Sub.Inspector of Police, Parmanand Singh (p.w. 22). From the house of Hari Kishun Dusadh were recovered several articles, including new cloths, which were concealed under some fuel. Four of these articles, namely, Exs. VII, will, IX and XIII have been identified to be articles, which were removed by the dacoits at the dacoity committed in the two shops. These four articles were put in the test identification parade which was held in September 1943, and were identified to be articles which had been removed by the dacoits. From the house of Daroga Dusadh were recovered several articles which were embedded under the earth of the floor of the kitchen room. Two of the articles, Exs. XII and XIV, have teen identified to be articles which were removed by the dacoits. From the house of Daroga Dusadh was further recovered a license in the name of Jagdeo Ram, granted by the Sub-divisional Magistrate of Jihanabad. The presence of this licence in the house of Daroga Dusadh can be explained on one and one hypothesis only, namely, that Daroga Dusadh was either one of the dacoits who had committed dacoity in the two shops, or had received the stolen articles removed by the dacoits, with the knowledge that they were articles which had been removed by a dacoity. From the house of Bharath Dusadh were also recovered several articles, three of which have been identified to be articles which have been identified to be articles which had been stolen by the dacoits. These three articles are Exs. III, V and XVII. From the house of Bharath Dusadh was also recovered a treasury chalan in the name of Sahdeo Sahu. The presence of this chalan gives rise to the same inferences as the-presence of the license in the house of Daroga Dusadh. From the house of Inderdeo Dusadh were recovered these articles, namely, 2 saris and one dhoti. These were also identified to be articles which had been removed by the dacoits from the two shops on the night of the dacoity. In my opinion, the recovery of these articles from the houses of the aforesaid four accused persons clearly shows that they were guilty of the offence u/s 412, Penal Code.

In the result, I would uphold the conviction and sentences passed against all these eight appellants and would dismiss their appeals.

Agarwala, J.

I agree.