MOINUDDIN Vs. SHEOGOBIND SAHU

JUDGEMENT

(1.) This rule had been issued at the instance of a private prosecutor, against a Magistrate's order, discharging two persons, Sheogobind Sahu and Mahadeo Kahar, under Section 209, Criminal P.C.

(2.) Some occurrence took place in the evening of 23 May 1940, at village Nohsa near Patna, and in the course of it one Hamid met his death. A first information, charging 19 persons with riot and murder, was lodged at the police station without any delay, and the Sub-Inspector of Police proceeded to the spot also without delay, and after completing his investigation he submitted charge sheet against all the 19 persons named in the first information, including the opposite party, Sheo Gobind Sahu and Mahadeo Kahar. The case was inquired into by the learned Sub- divisional Officer of Patna Sadar Subdivision. A number of persons testified as eye- witnesses, and were not cross-examined before the learned Magistrate. A large number of these eye-witnesses stated that it was Sheogobind who had given the order for assault, and it was Mahadeo who had struck the first blow upon Hamid. P. Ws. 2, 3, 4, 5, 6, 7, 9 and 10 identified Mahadeo Kahar as having been in the mob, and of them P. Ws. s, 4, 5, ,6 and 7 stated that they had seen Mahadeo giving a spear blow to Hamid. Moreover, the village dafadar (p.W. 8) testified that before his death Hamid had made a dying declaration to him that the first bhala blow was struck by Mahadeo.

(3.) As for Sheogobind Shahu, his presence in the mob was deposed to by all the eyewitnesses in the case, eight in number, and six of them spoke of his carrying a bhala. Though the prosecution witnesses were not cross-examined with regard to this evidence, Sheogobind and Mahadeo examined defence witnesses to establish an alibi. They examined an advocate and a mukhtear to prove that at the time of the occurrence they had been at the advocate's house, instructing him with regard to the argument to be made in a criminal case in which they were accused, and which had been fixed for the following day.