Kalu Manjhi vs Emperor

Rowland, J.—This appeal arises out of a trial by the Sessions Judge of Purnea in which Kalu Manjhj and Phurlai Manjhi, Santals, were convicted u/s 398, I.P.C., and sentenced each to be imprisoned rigdrously for seven years. Both the accused appealed and the. appeal of Kalu was dismissed Summarily, that of Phurlai being admitted for hearing.

The occurrence took place on the evening of 2nd November 1928 on the road along which Ram Kumar Marwari, Rameshwar Marwari and Hari Bux Marwari were returning with their ponies and merchandise to their homes from Sonaili hat. On the way they were accosted by three or four men armed with lathis and axes who demanded that they should give up the goods they had with them. Ram Kumar was assaulted with a lathi and received slight injuries. Rameshwar also received some scratches.

There was a scuffle in which Ram Kumar took away a lathi from one of the assailants and also bit the arm of one of the assailants and took from him an axe Which he was carrying; The principal witnesses Ram Kumar Rameshwar and Hari Bux were unable to identify any of the robbers; In the course of the police investigation it transpired that Kalu Manjhi had marks on his arm of being bitten by human teeth and it was in consequence of statements made by him and by the other accused Phurlai, more than through anything that the prosecution witnesses had been able to establish, that they were put on their trial. The eye-witnesses prove nothing as to the identity; of the accused but they describe the course of the occurrence as summarized above.

The accused gave a different version, but their statements were to the effect that they were the persons who had encountered the Marwaris. In the Magistrate''s Court, Kalu had said that he and Phurlai were going together and Phurlai also said:

I was on the right side of Kalu. Ha was caught hold of. I fled away.

The story was slightly altered when they were examined in the Court of Session where Kalu said that both of the Marwaris caught hold of him with their hands. Phurlai Manjhi went away shead. Phurlai in his statement said:

I was ahead and Kalu was following me. am not an eye-witness.

The examination of an accused person is taken in inquiries before commitment u/s 209, Criminal P.C. and at the trial u/s 342. In both these sections the examination of the accused is stated to be

for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

In the present case we have the peculiar position that if the accused had not been examined at all the prosecution evidence must have fallen short of being sufficient to prove that these accused persons were the men who committed the offence. I have no doubt that in ''such'' a case it is not proper for the Court in examining the accused to seek in any way to entrap him into admissions which may fill gaps in the prosecution case but the Court has not done any such thing in the present inquiry or trial.

The questions put were straightforward. The accused were asked whether they had committed the offence and what they had to say. The statements given by Kalu and by the appellant were, therefore, rightly taken, into consideration u/s 342(3), Criminal P.C. and when so considered I have no doubt that they support and justify the conviction of the appellant.

As regards sentence, the trial Court has imposed a sentence of seven years'' rigorous imprisonment. We have considered whether this sentence should not be reduced; but highway robbery, more particularly when it is committed between sunset and sunrise, cannot be regarded as other than a very serious offence and in the district of Purnea from which this case comes, its prevalence seems to make it imperative that a very substantial sentence should be imposed when there is a conviction. would, therefore, dismiss the appeal.

Courtney Terrell, C.J.

I agree.