Emperor vs Ram Prasad Nonia

Courtney-Terrell, C.J.—This is an appeal by the Local Government against a judgment of the Assistant Sessions Judge of Motihari acquitting one Ram Prasad Nonia of charge of house breaking by night u/s 457, Indian Penal Code, and theft in a dwelling house u/s 380, Indian Penal Code. The decision of the learned Judge that the accused was not guilty of the offences charged was arrived at by him with the unanimous approval of four assessors, The questions involved relate purely to the facts of the case and unless this Court comes to the conclusion that the decision was one at which no body of sensible men could arrive it would not be disposed to disturb the findings of the trial Court. In this case, however, the evidence of guilt is so overwhelming and the judgment so perverse that we are obliged to interfere. The prosecution established conclusively the following series of events.

In the town of Battiah there resides the complainant Sarjug Prasad together with his two brothers Baijnath and Jagannath. On the night of 18th September, 1928, at about 1 30 Sarjug was sleeping in an inner room of his house with his wife and children. He awoke on hearing the sound of something breaking. He rose and went into a room on the west side of his house which adjoins the shop on the same side. The door into the shop was open and light was coming from another adjoining room in which there stands his safe. He chained the door which leads from the room in which he was standing into the shop and then went out on to the verandah and aroused his brothers who were there sleeping. A door from the shop opened on to the verandah and the accused emerged. He was seized by Baijnath assisted by Sarjug and Jagannath There was a struggle and the accused and Baijnath fell over the edge of the verandah into an open drain outside. The shouts of the complainant and his brothers aroused several neighbours who came running up. In the struggle Baijnath was bitten by the accused on the forearm. In spite of his activity the accused maintained silence, A witness named Rashid caught the accused by the leg and asked his name. He did not reply and Rashid slapped his face whereupon a silver ornament called a ghundi fell out of his mouth. The ornament belonged to the complainant''s mother. In the course of the struggle the accused''s gamcha fell off and tied in the corner was found some money and a match box. The accused was asked his name and gave a false name. Inside the shop it was found that a wooden-box had been broken open and the ornament which the accused dropped from his mouth had been contained in that box. It was also found that the inner door from the shop to the room containing the safe had been forced, the staple of the padlock having been broken and an iron crowbar was found inside the inner room. Two constables arrived and the accused was taken to the thana where he was identified by the Police under his real name. The Police at the station had reason to know the accused because a charge had been made against him of bad living and he had been confined in Buxar Jail. On furnishing security he had just been released and had returned that very day to Bettiah.

The incidents which I have narrated were established on the evidence of several independent witnesses who were entirely unshaken in cross-examination. When taken before the Magistrate on 4th October he made this statement.

I did not commit theft At 3 a.m. two constables took me to the Christian Toli from near a betel shop close to the electric house and having tied me made an alarm of ''theft'' and asked the complainant to say that theft had been committed in his house and then they brought him (the complainant) to the thana,

In his written statement the accused referring to the charge against him u/s 110 stated that the Sub-Inspector at Bettiah had always endeavoured to prevent his release on bail, that the prosecution witnesses were all creatures of the Police and had deposed falsely and that the whole case against him was false and deliberately engineered by the Police. He offered no evidence at the trial and the cross-examination of the prosecution witnesses did not produce a particle of testimony in support of his story.

The judgment of the learned Judge is quite extraordinary and makes it doubtful whether he is fit to exercise criminal jurisdiction. He comes to the conclusion that the story of the breaking into the house has been wholly concocted and this, needless to say, involves the gravest reflection upon the Police, If it were true it would mean that the numerous witnesses who are inhabitants of Bettiah and neighbours of the complainant and his two brothers had deliberately perjured themselves to support a case concocted by the Police in which they (the witnesses) had not the smallest interest. It is difficult to deal seriously with the reasoning of the learned Judge. Firstly, he examines the silver ornament and comes to the conclusion that the story of it having been held in the mouth of the accused is impossible on account of its size, and moreover he considered it impopsible that the accused holding the ghundi in his mouth could at the same time have bitten Baijnath. I have looked at the ornament and the Judge''s theory is manifestly absurd. The Judge then says that the ornament would not have been kept in a box in the shop but in the private apartments of the complainant''s mother to whom it belonged and that this probability renders the prosecution story improbable. Next he says that the story of the complainant that he was awakened by the noise of breaking is improbable having regard to the distance of the room in which the complainant slept from the shop. He has, however, made no enquiry of a practical kind into the nature of the walls and there is no evidence of any experiment which would justify his theory. The onus of proving this alleged improbability is entirely upon the accused and there is no evidence to support it. The Judge then considers that if the complainant''s story had been true he would have chained up the door from the shop to the verandah which would have prevented without any trouble the possible escape of the accused. A number of other considerations of which the foregoing are a fair sample were adduced by the learned Judge to support his ultimate conclusion. He must very early in the course of the case have formed the opinion that the Police had concocted the prosecution story and must by his manner have given a lead to the assessors. It is quite possible that the chance of striking a blow at the reputation of the Police may have seemed to the assessors far more attractive than the solution of the question of the guilt or the innocence of the accuse In no other way can 1 imagine the mental processes which resulted in their opinion. It s perfectly clear that this judgment of acquit-t d must be set aside and the accused should, in my opinion, be sentenced to rigorous imprisonment for five years u/s 457. No separate sentence under the other section is called for.

Dhavle, J.

I agree.