KHODA BUX HAJI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by five persons, Khoda Bux Haji (otherwise known as Khudu Haji) Sifat, Bocha, Saban and Khosal. All these five appellants were tried before the Additional Sessions Judge of the first Court, Mymen singh, sitting with a jury, for offences Under Section 147 and Section 302 read with Section 34 and Section 302 read with Section 149, I. PC. The jury acquitted the accused of the more serious charges, but unanimously convicted them Under Section 325/149 and Section 147. The learned Additional Sessions Judge sentenced all the five accused Under Section 325/149 to two and half years rigorous imprisonment and in addition each of the four accused Sifat, Bocha, Saban and Khosal to pay a fine of Rs. 50 and in default of payment of that fine to undergo an additional term of rigorous imprisonment for a period of three months. Khoda Bux Haji was sentenced in addition to the term of rigorous imprisonment to pay a fine of Rs 200 and in default to suffer rigorous imprisonment for a further period of six months. The learned Judge in passing sentence observed that this sentence on all the accused especially on Khudu Haji should have been "stiffer," but he took into consideration the period they had been in prison already and in the case of Khudu Haji, his age had also been considered. No separate punishment was awarded Under Section 147.

(2.) When this appeal was originally opened before us Mr. Dinesh Chandra Roy who appears on behalf of all the accused, we took the view that the facts and circumstances of the case were such that if we came to the conclusion that the conviction ought to be uphold then the sentences passed on all the five accused were manifestly inadequate. We accordingly therefore took the precaution of directing that a Rule should issue calling upon all the accused to show cause why the sentences passed upon them should not be enhanced. Pending the service of that Rule the further hearing of the appeal stood over until today. Mr. Roy in arguing the appeal on behalf of all the convicted persons has directed certain criticisms against the summing up of the learned Judge. In order to estimate the value of these criticisms it is necessary that I should outline the case put forward by the prosecution.

(3.) It appears that the convicted man Khoda Bux Haji (who seemed to be nicknamed Khudu) is a Talukdar of some substance. He is the owner of certain Char lands. Khudu Bux Haji, after the recent death of his brother Mir Bux Haj, had been making efforts to oust the widow of Mir Bux from her rights and was trying to get possession of all the properties left by Mir Bux. It was stated on behalf of the prosecution that a third brother Parbat had been championing the cause of the widow whose name is Basiran, and in his efforts on her behalf Parbat had had the assistance of a man Shikari Dewania, who was his uncle-in-law. Shikari Dewania seems to have been a man of some position in his village. Shikari Dewania lived at a place called Amkhour Char, whereas the widow Basiran and her brother in law Khudu lived at Dakatear Char which lies on the other side of a branch of the main stream of the river Jumna. On 31st August 1931, Parbat and a man named Aasan Haji came to the house of Shikari Dewania. Parbat asked the latter to accompany them to the house of Basiran in order that certain cases which were pending between her and her brother-in-law Khudu might be compromised. In response to that invitation Shikari Dewania set out with Parbat and Asan in a boat to cross the river Jumna. After they had proceeded about half way across the river another boat ran alongside them and obstructed their progress.