Balai Bauri and Others vs Emperor

In this case we are concerned with a dacoity which took place on the night of 15th January this year at a liquor shop which is outside village Ladhurka within the jurisdiction of thana Hura in Manbhum. In the course of this dacoity a chaukidar. Sambhu Bauri, received a blow with an axe which fractured his skull and he died some days later.

The liquor shop stands in an isolated place about 120 paces north of the Purulia-Bankura District Board road and about the same distance south-west of the village just on the north side of the same road. The building of the liquor shop consists of a court-yard surrounded by a low wall and on the north side of the enclosure is a store-room with a verandah. The two entrances to the court-yard are respectively on the south and on the east.

There is another small room and a verandah on the west side. On the night in question there were sleeping in the room three Mohamedans, one Shamsuddin who is employed by the owner of the shop to supervise this and other shops and a few days before the night in question he came to Ladhurka on a visit of inspection, the two others Abdul and Karim Bux both employed in the shop and outside on the verrandah there slept a salesman named Guhia Bauri. There was hanging from the thatch of the verandah a lantern. The door leading from the room to the verandah was closed by a sheet of galvanized iron fastened with wire. At about midnight the man Guhi Bauri received some severe lathi blows on the face, leg and back.

He found the three appellants Gobra Bauri, Madhab Bauri and Boya Bauri standing beside him. Gobra and Madhab were armed with lathis and Boya had a tabla or axe with the handle of which he had struck the witness and inflicted a bruise on the right of the nose and the adjoining part of the face. He was well acquainted with all the three men and recognised them by the light of lantern. He was also able to see six or seven others in the courtyard below the verandah but did not recognise them. They threatened to kill him if he made a noise. Then they covered his eyes with a cloth and tied him up with a rope. The assailants then began to knock upon the door of the room. This alarmed the inmates who attempted to resist the assailants by pushing in the opposite direction against the door which ultimately fell down.

The three Mohamedans dashed out on to the verandah and fled through the eastern door of the courtyard in the direction of the village shouting as they ran. They also saw a number of dacoits in the angan, one of whom struck Shamsuddin on the forehead, another struck Karim Bux with a lathi on the left arm, and Abdul Mian was, hit by a stone which one of the dacoits threw at him. Karim Bux could not run as fast as the others and hid behind the embankment of the paddy field. The villagers were aroused by the shouts and the chaukidar Sambhu Bauri who had just come back from his rounds and was taking off his uniform at once sallied forth to deal with the situation. Sambhu appears to have been particularly courageous man and ran swiftly towards the liquor shop closely followed by his brother, Bhiku Bauri, and at a slightly greater distance by another brother Bhushan Bauri who is also a chaukidar.

The story of Bhiku Bauri which, in our opinion, is clear and unambiguous was, for reasons which appear to us quite insufficient, not entirely accepted by the learned Sessions Judge. He says that he arrived at the eastern door and saw the dacoits within the angan and they carried two lanterns. He recognised the appellants, Balai, Balai''s brother Sashi, Boya who is the sister''s husband of these two men, Gobra and Madhab who are brothers and one of the two accused who were acquitted named Lalwa. There were two or three others whom he could not recognise. He saw Sambhu also in the angan but he immediately came out and told the witness that he had been injured and that the witness should not go further.

He fell down on the ground and the witness threw himself on the ground near him. Some of the dacoits came in and out a few times through the eastern entrance, blood was found in the immediate neighbourhood of the entrance, and Sambhu is certainly proved to have fallen down immediately outside. The witness did not see the actual assault on his brother. The learned Sessions Judge has criticized the evidence of this witness and considers the story of the dacoits coming in and out of the doorway as wholly incredible.

On the other hand, it seems to us an entirely natural action due to the hesitation to flee across open ground in the direction from which help for the wounded men must certainly shortly come. (After discussing the other evidence in the case, his Lordships proceeded), In coming to his final decision the Judge uses the following words:

This accused has no doubt been proved to have caused the injury which resulted in the death of Sambhu, but there is nothing to show that he intended to cause his death or to inflict a fatal injury on him. It is apparent that sambhu happened to come to the place just when the dacoits were busy in their work and one of them aimed a blow with an axe at him in order to prevent him either from catching hold of them or from interfering in their work especially when Sambhu was a chaukidar, I therefore think that the accused Balai is not guilty u/s 302, I.P.C., though he is guilty u/s 396, I.P.C.

This is a really extraordinary piece of reasoning. The wound on the head of Sambhu was inflicted with an axe on the right side of the top of the head. There was a clean cut fracture, of the skull along the whole length of the Wound nearly 2" and penetrating to the depth of about 2" right into the brain. This injury speaks for itself and it is surprising that it should be treated as a mere petulant gesture of a busyman to brush aside the interference of an officious chaukidar. Criminals who assault and kill officers of the law who interfere with them in the commission of a felony are guilty of murder. Nevertheless the Judge quite inconsistently with this decision goes on to convict the appellants of having committed dacoity in the course of which murder had been committed by one of the dacoits.

It was ingeniously argued on behalf of the appellants that because the Judge had found that there had in fact been no murder it was not open to the Judge and is not open to us to convict the appellants u/s 396. It is hardly necessary to say that although we cannot change an acquittal u/s 302 into a conviction in the absence of an appeal against the acquittal yet we are not in the least bound by any finding of fact by the Judge. The argument has no merit. The learned Judge passed the sentence of transportation for life upon Balai Bauri and of seven years rigorous imprisonment upon other appellants. To our minds, this sentence is wholly inadequate.

As dacoity with murder has become a frequent occurrence, which this Court will use its utmost endeavours to check it must be taken that such persons will normally be awarded the maximum punishment until that end has been attained. Had any of the other inmates of the house received a dangerous injury we would most certainly have inflicted the penalty of death upon all of the appellants. As matters stand we sentence Balai Bauri to be hanged by the neck until he is dead and each of the other appellants Sashi Bauri, Gobra Bauri, Madhab Bauri and Boya Bauri are sentenced to transportation for life.