Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

. (page 63 of 91)
Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 63 of 91)
Font size
QR-code for this ebook

Digitized by


Vol. Ill] The CamiNAL Law Journal REPonT8. 321


Ai» regards the first allegation I do not understand how it ostablishcs in
any way Lakhmi's guiU. But the 2nd, no doubt, if proved, would be an
instigation within the meaning of section 107. Now what is the evidence
to establish it ? The accused 1, it should be remembored, has denied that
Lakhmi told her any thing. The learned Prosecutor has argued that the
two prisoners have been a long time together in jail and that the accused
1 is now trying to shield Lakhmi. But it has escaped his notice that
Behni told the san^e story to the 2nd class Magistrate on the 8th March!
She told him that Lakhmi first knew of the matter when Kesar and Kunku
support<*d her into the house after the child had been disposed of.

Again the circumstances surrounding the crime bear none of the
traces of an experienced hand. It would require very strong evidence to
convince a judge that an intelligent and experienced woman, such as
Likhmi appears to be, would direct Behni in the presence of a room full
of girls to throw he^r child away directly it was born and that once the
crime was committed would herself report that a child's body lay in the
spot where at her suggestion it had been placed. It would have been not
difficult to lead Behni some distance away and after her delivery bury or
conceal the body at such a distance that it would never have been

But in place of such strong evidence we have nothing but the evidence
of Kunku, Kesar and Kushal, who according to their own statements were
privy to the crime. They saw the child lying alive in the pit and they
let it remain there. They knew that Behni was going to have a child and
they assisted her delivery and concealed the birth. Moreover they have
contradicted themselves and each other at every point. Kunku has said
that the accused 2 told her to cut the child's umbilical cord and Behni to
throw the child away at practically the same time on Friday evening.
She never mentioned in the Lower Court that she was present when Behni
was ordered to throw away the girl and from the police she withheld
Lakhmi's instructions to cut the umbilical cord. Kesar, whose demeanour
was that of an untruthful witness aifect<?d to have been also present. She
however stated that the instructions to cut the umbilical cord were given
on Saturday evening after the child had been buried. It is true that
eventually she said Friday evening but it was evident that she was not
speaking the truth. This is the first time moreover that she ever stated
that she was present when Lakhmi spoke in this way to Kunku. And
he further contradicted both herself and Kunku as io the hour when
liakhmi told Behni to throw away the child. I^astly she has said that
when Lakhmi spoke to Kunku, Kesar was present, a fact denied })y both
Kunku and Kesar herself,


Digitized by


322 The Criminal Law Journal Reports. [Vol. Ill


l/nder these circumstances I would ask the Members to disre^;iird thf
evidence of these three girls so far as H relates to the alleged crime of
Lakhmi and acquit accused No. 2.

(8d.) (\A. Kincaid,

12th April, 1905. Judicial Assistant, Kathiawar.

The Majority of the members being of opinion that section 318, rather
•than section 302, should be applied to the case the accused 1 is convicted
under section 318 and is sentenced to undergo twelve months' rigorous

The Members are unanimously of opinion that the accused 2 is not
guilty. She is accordingly acquitted and discharged.

12th April, 1905.

(Sd.) C. A. Kincaid, President and Judicial Assistant, Kathiawad ;
(Sd.) Huseinyavarkhanji ; (Sd.) Ohaturbhai B. Patel, Veraval Munsift ;
(Sd.) Shamshankar J. Naib Manager, Manavadar; (Sd.) Chintaman
R. Sukhshawkar, Mamlatdar and First class Magistrate, Jaf rabad.

(26 A. W.X.,6L)


Feb. 2 [CRIMINAL REVISION No. 11 of 1906.] 1906.

Present : — Mr. Justice Aikman.


Penal Code (Act Xo. XLV of I860), *. 307 JMcoittf with tise tf deadly tceapoM
- ApplicahiUty of section.

Jfeld that section 897 of the Indian Penal Code applies only to the actual person or per-
sons who at the time of committing robbery or dacoity may ufjc any deadly weapon, or may
cause grievous hurt to any i>erson. or may attempt to cau«e death or grnevous hurt to any

The facts of this case sufficiently appear from the order of the Court.

Aikman^ J, — This case was ciilled for on a perusal of the Sessions
statement of the Gorakhpur District for the month of October 1905. The
accused Nageshwar went with six or seven other men to steal meloni*
during the night. The men wlio were watching the field were struck by
two of the thieves and one got his jaw fractured. The learned Judge finds
that the accused was not one of the two men who inflicted the injuries.
But,, apparently relying on the decision of this (*ourt of Quee^i Emj>re$i
V. Moliahir Ihcari (LLJt, 21 AIL, 263), the learned Judge applied the
provisions of section 397 of the Indian Penal Code and sentenced Nagesh-
war to seven years' rigorous imprisonment. The learned Judge was appar-
entlv not aware that the decision above referred to was overruled in t|ie



Vol. Ill] The Criminal Law Journal Reports. 323


case of Queen Empress v. Senta (Weekly Notes, 1899, p. 187). According
to this latter ruling Nageshwar was not liable to the provisions of * section
397. The accused has all along admitted his guilt, and he is already guilty
of an oflFence under section 393. But having regard to the circumstances
he does not, in my opinion, deserve so severe a sentence as that which has
been imposed on him. I reduce it to a term of three years' rigorous

(26 A. W.X..61.)


Feb. 3 [CRIMINAL REVLSION No. 8 of 1906.] 1906.

Present : — Mr. Justice Richards.


Crlimnnl Procedvrr Code^ jm. 101 and 14o — Attemjjt to eject htj force a jjersan tHpoMesfion
of Immoreahle pcoperty — Jurisdiction —ProcedHcc.

Where certain i>orsons wrongfully and without any bona Jidc claim to i)o.«3«3ion, Hought
to ejct another by forco from the poss^s^ion of c^rt-ain lan:l, and a brcacli of the peace was
imminent, it was hrld that a Ma:?istrat j might lojilly tike aotLoii against the aggres^^rs under
section 1U7 of the r>lo of Criminal Pro33dure and it was not ne33ssary. on the tin ling that
their claim was not h*najid\ to take prooee lings under section 145 of the Code.

The facts of the case are as follows : —

One Gajadhar Singh, the oc<^upancy tenant of certain land, mortgaged his occupancy hol-
ding to A Mr. Barber in IfKH). The mortgagee, cither as such or as lessee, was put into pos-
session, and rctaineil i>osse^ion, cultivating the land either in person or through sub-tenants,
for some years. In 1905 tlic zamindar Ram Baran Singh, and .Ihuri Singh, forcibly interfere*!
with his po<s3ssion of the land by preventing his labourers from working and threatened, ac-
cortling to Mr. Barl>er, to take possession of the crops by force. Accordingly a petition was
presented on behalf of Mr. Barber asking that security might be taken from Ram Baran Singh
and Jhuri Singh to keep the pea?e. This application was oppoeod on the ground that the
opposite party was in piases^ion and had in fact sown the crops on the land, and that pro-
ceedings, if any were re luiral under the Code of Criminal Procedure, could not be taken under
section 107, but should be taken, if at all, under section 145. The Magistrate, however, found
ill effect that the plea of title set up by the opjKtsitc party was entirely a bogus plea and ha<l
no merits to sipport it, and was put forwanl merely to help the opposite party to get posses-
sion of the crops of the complainant. He found also that there was a danger of a breach of
the peace being committed. On these findings the Magistrate made an onler binding over the
opposite party to keep the peace for six months. An application to the District Magistrate t >
set aside this order was rcjectc 1. and the opposite party then prefcrre<l a similar application to
the High Court.

Sonihji, for the applicant.

The Assistant Clovernment Advocate (Porter)^ for the Crown.

Richards. J. — This is an application in revision. The applicants were
bound over under section 107 to execute a bond to keep the i)eace, and the
objection which is taken to the order is that section 145 of the Code is the

Digitized by


32i The Oriminal Law Journal Reports. [Vol. Ill


proper section and under which the Magistrate should act and not under
section 107.

Section 107 provides that an order of the nature complained of may
be made whenever the Magistrate is informed that any persons are likely
to cominit a breach of the peace, disturb the public tranquillity, or to do
any wrongful act that may prolmbly occasion a breach of the peace or
disturb the public tranquillity. The evidence which was before the
Magistrate was quite sufficient to make him think that the applicants were
likely to commit a breach of the peace, and I think that, altogether irres-
pective of the provisions of section 145, he was justified in making the
order ho did. I am clearly of opinion that in every case in which a Magis-
trate finds that there is a bond fide dispute aliout land and that an order
under section 145 will suffice to keep the peace, he ought to adopt the
procedure laid down in section 145. I think that the Magistrate is entitled
for the purpose of considering whether or not there is a bond Jide dispute
about immoveable property to hear evidence. The moment he comes to the
conclusion that a real dispute exists, no matter how erroneous the conten-
tion of one or other of the parties may be, he ought to refrain from deci-
ding any question of title between the parties. His decision should merely
be whether or not the claim. set up is bogus or bond fide. In the present
case I think that it is quite clear that the Magistrate came to the conclu-
sion that there was no bond fide belief by the defendants that they had any
title whatever to the property and that they wore in reality wilfully com-
mitting a wrongful act. If he came to that conclusion he was certainly
justified in making the order under section 107. I reject the application.

(26 A. W. ^., 75.)


Feb. 15 [(CRIMINAL APPEALS Nos. 919 and 920 of 1905.] 1906

Present :-«Mr. Justice Knox and Mr. Justice Aikman.

EMPEROR r. BASORA and others.

Indian Eeidence Art (Xo. To/ 1872), .. 24-~.(hn/esywH~Admissihnity ofcimfeMhm^
Inducement to cmfest.

Certain accu«Hlpo«o„s were sent before a Magistrate to l»ve their statements or con-
fe^s.ons r^n\tA. They were vrame.. by the Magistrnte, .,efo« they nuuJe their statement*,
" not t« expect any a<lvantage or <lis«lr«„tage therefrom.- //,W that the confessions, m«Je
by the accuse.! after this wam.ng ha.1 been given to them, wew entirely inadmissible in

The facts of this case sufficiently appear from the judgment of the

Digitized by


Vol. Ill] The Criminal Law Journal Reports. 325


The as:»istaiit Government Advocate (Porter), for the Crown.

Knox and Aikman^ J J. — These were appeals by nine persons, who
have been convicted of taking part in a dacoity, in which murder was
committed. Six of them are Brahmans and three of them Lodhs. Four
of them — (lia^^ura, dihab Lai, Das and Sewn, have been sentenced to
transportation for life : Malthu to rigorous imprisonment for ten years,
and the remainder — Basora, Pher\\a, Sukh Singh and Kaudhai, to rigorous
imprisonment for seven yeiirs each. We have considered the petitions of
appeal and carefully perused the whole record. It is clearly proved that
on tlie night of Saturday, the 27th May last, a dacoity was committed in
the house of Devi Prasad, a retired patwari, residing in the village of
Dhawar in the Hamirpur district. Devi Prasad had rendered himself
unpopular owing to his grasping character and also owing to intrigues
with women. On the night in question his house was attacked by a body
of ten men, two of whom were armed with guns and the rest with axes
and lathis. Devi Prasad made his escjipe and hid himself under a cart
standing in a lane outside his house. He was discovered by the dacoits ;
dragged back to his house ; beaten until he pointed out where his valuables
were kept, and then deliberately and brutally murdered. Ho was hacked
about, the head and neck and his private parts were also injured. There
were no less than fifteen incised wounds found on his body. The offence
of dacoity with murder being clearly proved, wo have only to consider in
the case of each of the accused whether the evidence is sufficient to prove
his partici|)ation in the crime. The principal witness in the case is an
approver, named Ram Nath. That Ham Nath was one of the dacoits is
undoubted. He gave up part of the plunder, and his evidence as to what
took place^ where it admits of corroboration has been amply corroborated.
Out of the ap{)ellants, six, namely, Chatura, Basora, Pherwa, Sukh Singh,
Kandhai and Malthu, have, before the committing Magistrate, admitted
their participation in the dacoity and in those confessions they named all
their co-accused. These confessions may be taken into consideration
against all the accused with the exception of Sewa, who was not jointly
tried with them. In the Court of Session all the confessing accused at
the outset of the trial admitted that they had gone to the village of Dhawar
where the dacoity was committed, but professed to have been taken there
by deception or compulsion practised on them. The le^irned Sessions
Judge refers in addition to certain confessions made by the six men above
referred to in presence of Mr. Walton, the Joint Magistrate of Hamirpur,
on the 2nd of June 1905. We have had to discard these latter confes-
sions, because we find appended to them a note by the Joint Magistrate
that the confessing prisoners were warned before they made the statements
** not to expect any advantage or disadvantage therefrom," It was quit©

Digitized by


326 The Ciumikal Law Jolknal Reports. [Vol. Ill


ri</lit of the learned Magistrate to warn the prisoners that they were not
to expect any advantage from their confessions, but when he went on to
tell them that they were not to expect any disadvantage from making
them, he committed a grave mistake which in our judgment renders the
confessions entirely inadmissible. In the case of (liatura, Pherwa,
Khandhai and Malthu we have evidence as to the findings in their iK>sses-
sion of property taken in the dacoity. The accused Sewa is a resident of
a village in an adjoining native state and at a considerable distance from
the village Dhawar. According to the evidence he provided two gurs,
which were used by the dacoits, and himself fired off one of them. We
see no reason why he should have been implicated in this dacoity if he
did not actually take part in it. In the case of Chhab Lai and Das, who
are residents of Dhawar, we have the evidence of Mussammat 8ardar,
daughter-in-law of the deceased, and of his son Brij Bhukhan and Uadlia
Charan, of Prithi Brahman and of Kashi Brahman. All these witnesses
de|)ose to having recognised these two men at the time of the dacoity.
This evidence has to be received with caution as these witnesses did not
come forward at the commencement of the police investigation. These
two accused have influential friends in the village, and it is possible that
this was the reason for the reticence of these witnesses at first. We are
not prepared, however, entirely to discard their evidence. The witness
Mussiunmat Sardar gives a most graphic account of what she saw. We
have further the evidence of Mussammat Uajrani, who lives at Maholikaut,
a village some miles off from Dhawar. She says that Chhab Lai and Das
came to her house at two or four gharis before dawn on Sunday morning ;
that Chhab Lai asked for water and washed his hands and face and clothes,
explaining that his nose had been bleeding. Cldiab L:il also handed over
to Mussammat Hujrani thirty-two Srinagar rupees, which she made over
tx> the Sub-Inspector of Kashipore. It is in evidence that there were some
three hundriul Srinagar rupees amongst the property stolen in this dacoity.
We have no doubt that all the nine accused took part in this heinous
crime. Under section iJlKi of the Indian Penal Code tbey ai*e one and all
liable to the punishment of death. The evidence and the confessions sho^v
that the crime was the result of a carefully planned conspiracy. AVe
issued notice to two of the api>ellants (liaturaand Chhab Lai to show cause
why the sentenc(»s passed on them should not be set aside and sentences
of death passed. AV'e also issued notice upon those of the accused who
had not been sentenced to transportation for life to show cause why the
sentences jmssed on them should not be enhanced. The prisoners to whom
such notices were issued have submitted petitions, which wo have con-
sidered. We are satisfied from the evidence that Chatum and Chhab Lai
were the ringleaders in the dacoity which resulted in the murder of Devi

Digitized by


Vol, 111] The CitiMiNAL Law Julknal liEPOft!rs. 327

In re dikhi kkwat.

Prasad. We disitiiss the appeals of Chatura, Chhab Lai, Basora, Pherwa,
Sukh 8ingh, Kandhai, Malthii, Das and Sowa. AVc set aside the sentences
of transportation for life passed on Chatura and (^hhab Lai and direct
that in lieu thereof C-hatura and Chhab Lai be each of them hanged by the
neck till he be dead. We set aside the sentences of imprisonment passed
on Malthu, Pherwa, Sukh Singh and Kandhai, and in lieu thereof direct
that they suffer transportation for life with effect from the 11th of Sep-
tember 1905. Having regard to tlie youth of Basora, we discharge the
rule that was issued to him.

(3 A. L. /., 224 ; 26 A. W. X, 76.)


Feby. 10 [CRIMINAL REVISION No. 73;J of 1905.] 190C.

Present : — Mr. Justice Knox.


Crtni'iHal Procrdurfi Gtde^ #*. 528 and i}37 — Tfanxfer — Xat'ire — Reasons for tranxfer unt
recorded^ the trauiffer tfclng ohVgatory—PoUee Officer agalnit whom a comijlaint was made
called upon to submit an explanation,

A complaint was made in the Court of a Deputy Mogintrate aocusing a Sub-Inspector of
Police of offences under sections 328 antl 384 of the Indian Penal Code. The Deputy Magis-
trate brought the complaint to the notice of the District Magistrate who without recording his
reasons for ho doing, but in obctllence to an order of Government, transferred the case to his
own file. The District Magistrate also called upon the officer accused to report as to any
reasons which ho knew for the compUint having been made against him. This report was
[>laceil on the record, and was usetl, as the Magistrate stated in his onler, to supply grounds
for crosa-examining the witnesses [)roducel by the complainant. Held that the omission on
the part of the Magistrate to record his reasons for transferring the case was not under the
circumstances more than an irregularity, and that his action in calling for a report from the
t^ub-Inspector and the use made of that report were not improper. Held also, that where a
District Magistrate transfers a case from the file of a Subordinate Magistrate to his own, it is
not necessary that he should issue notice to the complainant before doing so.

The facts of the case are as follows : —

One Dukhi Kewat tiled a complaint in the Court of a Deputy Magistrate accusing Shifayat-
ul-lah, a Bub-Inspector of Police, of offences under sections 323 and 384 of the Indian Penal
Coilc. The Magistrate in whose Court this complaint was filetl sent the papers to the Magis-
trate of the District, who without recoiling his reasons for so doing but apparently in obedi-
ence to a general onler of Uovenmient (nVf« M.G.O., VI., p. 101), transferred it to his own
Court. The District Magistrate sent for the complainant and his witnesses and examined
them. He also callal upon the 8ub-lnsi)ector chai-ged for a report as to the reasons for the
chm-ge being made. This report was placed upon the rcconl, and was used by the Magistrate
as supplying grounds for cross-examining the complainant and his witnesses. Ultimately the
Magistrate, after careful consideration of the case, dismissed the complaint as false under
section 203 of the Code of Criminal Procetlurc. The complainant thereupon applied to the Ses-
sions Judge asking for further inquiry into his complaint. This application was rejected, and
he then came to the High Court with an application asking that the order of the Sessiong
Judge might " be revised, " and meantime that proceedings against him under section 211 of
the Indian Penal Code might be stayed.

Digitized by


828 The Criminal Law Joukkal Hepuuts. [Vol. Ill

In re DlKHl KEWAT.

Sfrrahji^ for tlic applicant.

The Assistant Government Advocate (Porter) for the Crown.

KnOtV, J. — This is an applicsition for revision of an order [mssed by
the Court of Session at Azamgarh, whereby the Sessions Judge confirmed
an order passed by the District Magistrate of Azamgarh, disniissing a
complaint brouglit by one Dukhf against Shifayat-ul-lah, a Sub-Insi)ector
of Police. Three reasons are urged why the order of the learned District
Magistrate should be set aside. The first is that no formal transfer of the
case took place from the Court of the Magistrate of the first class to the
Court of the District Magistrate. Ufmn referring to the file of the case I
find that the complaint was instituted in the Court of a Deputy Magistrate.
The Deputy Magistrate examined the complainant and on the very S£ime
day sent the case to the District Magistrate. As the District Magistrate}
says he transferred the <*ase, J take his order to be an order passed under
section 528 of the Code of Criminal Procedure. If the supiK)sition is cor-
rect the Magistrate when transferring the case should have placed on the
record his reasons for the transfer. The reasons for the transfer are ob-
vious. The Govermnent of these Provinces, by an order passed on the 13th
of September 1902, to be found in the Manual of Government Orders, De-
partment VI, p. 104, has directed Magistrates to withdraw from subordi-
nate Magistrates under section 528, paragraph 2, of the Code of (Viminal
Procedure. all cases in which a complaint has been made that a Police Offi-
cer has connnitted an offence under the Penal Code.. Although the reasons
should have been recorded, I agree with the learned Judge in holding that
.the mere omission to. record them, though an irreguhirity. does not iiivali-
•date the Mubsequent proc(tedings, ..

The second reason urged is that no notice was given to the com[)lain-
ant to show cause against the transfer. I know no law nujuiring notice
to be given.

liastly, the Magistrate is said to have acted irregularly and illegallv
in calling for a private report from the accused, and my attention has Ix^en
called to the case of Baidifu Sath ISliifjh v. Muspratt (LL.R., 14 Ta/f.,
141). This same point was taken before the Magistrate and he has dealt
with it in his order of the 2nd of October 1005. It is true that the Magis-
trate did call upon the Sub-Inspector concerned to report what he knew
about the complainant and to send up all papers concerning it. The
Magistrate placed the report, when received, upon the record and he has
shown that he looked upon this order in tlie light of an order to show
cause why process should not issue against him upon the complaint pre-
ferred by Dukhi. The Magistrate appears to have dealt with the com-
plaint carefully and to have acted very properly and discreetly in eventually

Digitized by


ViJ. Ill] The Criminal Lav\ Juirnal Kbfuri's, 329


(lismii^ing it after inquiry made under jsectioii 203. I sec no reason for
interfering. I dismisf^the appliaition.

(3 C. L. J,, 357.)


Oct. 20 [CRIMINAL MJ?<(?ELLANEOrS No. 120 of 1905.] 1905.

Present : — Mr. Justice Woodroffe and Mr. Justice Mookerjee.


Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 63 of 91)