Decided on March 29,1952

STATE Respondents


REUBEN, J. - (1.) THIS appeal is directed against a decision of the Sessions Judge of Monghyr accepting a unanimous verdict of the jury and convicting the appellants Bhutta Shah and Baso Shah under Section 460, Penal Code, and the appellant Baso Shah under Section 380, Penal Code. Under the former section he has sentenced both the appellants to rigorous imprisonment for ten years. Under the latter section he has sentenced Baso Shah to rigorous imprisonment for one year, the sentence to run concurrently with the sentence under Section 460.
(2.) THE prosecution case is that in the early hours of 23.2.1951, the two appellants entered into the house of Ghoghu Chamar (P. W. 1), a resident of Mirzapur in the jurisdiction of police station Teghra. The two men forced their way into a room, in which Ghoghu Chamar's two daughters -in -law, namely Musammat Dahwa (P. W. 5) and Musammat Kalwa deceased were sleeping, by removing a 'tatti' door by which the room was closed. After entering Baso Shah attempted to remove a 'hasuli' from the neck of Kalwa. Kalwa caught hold of Baso's 'dhoti' and raised an alarm. Thereupon Bhutta stabbed her with a large knife and the two men ran away. Kalwa died soon after.
(3.) IN addition to the two charges under which the appellants have been convicted Bhutta Shah was put on his trial under Section 302. He was tried under this section by the Sessions Judge assisted by the five jurors acting as assessors. Differing from the unanimous opinion of the five assessors that Bhutta was guilty under Section 302, the Sessions Judge has found him not guilty under that section and has acquitted him. The only point which has been seriously urged before us by learned counsel is that there has been a misdirection in the case which has occasioned a failure of justice. Section 460 of the Indian Penal Code provides as follows : "If, at the time of the committing of lurking house -trespass by night or house -breaking by night, any person guilty of Such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house -trespass by night or house -breaking by night, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." ;

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