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Ghulam HusaIn and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1945All182
AppellantGhulam HusaIn and ors.
RespondentEmperor
Excerpt:
- - the key of the iron safe was obtained from ram das's wife. as appeals in cases tried by a jury can only be on a point of law, every petition of appeal should state distinctly in what respect the law has been contravened. in all these the grounds clearly foreshadowed the points of attack against the charge to the jury......taken away and the locks of four or five boxes were broken open. it is further stated that dirgaj, badri and ghulam husain had revolvers. after taking the booty, they walked almost the whole night and took train at a station on the cawnpore-rae bareilly line and reached cawnpore via unao at about 4-30 p. m. on 26th february 1943.2. at cawnpore the police, after the necessary search arrested them. prom the house of badri and kalian were recovered a copper frame of a hansuli, a small bundle of gold threads used for the purpose of stringing ornaments and a crucible used for the purpose of melting gold. prom the houses of ghulam husain, zaheer and bechu were recovered three handis of sandila laddoos, alleged to have been purchased at the unao railway station. all the accused except badri.....
Judgment:

Sinha, J.

1. Ghulam Hussain, Dirgaj Singh and Badri Singh have preferred this appeal against their conviction under Sections 120B and 395, Penal Code. They were sentenced to three years' rigorous imprisonment each under Section 120B and four years' rigorous imprisonment each under Section 395, Penal Code, the sentences to run concurrently. The story for the prosecution, as appears from the charge to the jury made by the learned Additional Sessions Judge, is briefly this: On the evening, at about 9 P. M. of 25th February 1943, there was a dacoity in the house of a man, named Ram Das Vaish. This Ram Das Vaish lived at a place called Ajua Bazar in the district of Allahabad. It is said that on or about 22nd February 1943, the accused Ghulam Husain, Sikandar, Zaheer, Dirgaj and Badri, along with certain others, decided at Cawnpore, between themselves, to commit a dacoity at the house of the aforesaid Ram Das. All the accused belong to the city of Cawnpore. Ghulam Hussain is a tailor; Sikander, Zaheer, Badri and Dirgaj are mill hands. Ganga Sahai and Murli are goldsmiths, who inter alia carry on the business of melting ornaments. Ghulam Hussain, Sikander, Zaheer, Dirgaj and Badri started from Cawnpore by train on 23rd February 1943, and reached Kanwar railway station at about 4-30 P.M. The story further is that they walked down from there to Ajua Bazar. They could not commit the dacoity on 23rd and 24th February 1943, because the house of Ram Das was not open. They, however, had the opportunity on the night between 25th and 26th February. The key of the iron safe was obtained from Ram Das's wife. The gold and silver ornaments were taken away and the locks of four or five boxes were broken open. It is further stated that Dirgaj, Badri and Ghulam Husain had revolvers. After taking the booty, they walked almost the whole night and took train at a station on the Cawnpore-Rae Bareilly line and reached Cawnpore via Unao at about 4-30 P. M. on 26th February 1943.

2. At Cawnpore the police, after the necessary search arrested them. Prom the house of Badri and Kalian were recovered a copper frame of a hansuli, a small bundle of gold threads used for the purpose of stringing ornaments and a crucible used for the purpose of melting gold. Prom the houses of Ghulam Husain, Zaheer and Bechu were recovered three handis of Sandila laddoos, alleged to have been purchased at the Unao railway station. All the accused except Badri were arrested on the night between 26th and 27th February. Badri was arrested on 23rd March 1943. Bechu made a confession. The learned Additional Sessions Judge, in an extremely careful charge to the jury, to which no exception can legally be taken, explained the entire position to the members of the jury. He finally passed the sentences mentioned above. There is a unanimous verdict of guilty against Ghulam Hussain, a verdict of guilty, by a majority of three to two, against Dirgaj Singh and by a majority of four to one against Badri.

3. It must be borne in mind that an appeal in a case of this character will lie only under Section 418, Criminal P.C., and must rest only on legal grounds. The main grievance of the learned Counsel for the appellant, Mr. David, is that the charge of the learned Judge is in certain portions, tendencious and is, in certain other portions, open to the criticism of non-direction. The learned Counsel, who has placed before me almost the whole of the charge, was unable to point out any portion of it, on which he could legitimately base his criticism. He has, however, invited my attention to the statement of the approver, which is to be found at p. 406 of the paper book. It is in the charge that the approver had received a beating from the Inspector Raja Ram Singh. Mr. David's grievance is that when the learned Judge invited the attention of the jury to the confession, it was also his duty to have impressed upon the members the factum of the beating. It is a misnomer really to call it a beating, inasmuch as it is conceded that it was nothing more than a slight caning. It is also in evidence that the caning was received at the time of the arrest, which was either on 26th or 27th February, whereas the confession was made on 14th May 1943. The lapse of time between the two events was such that it is impossible to say that the psychological effect of the caning must have, on the date of the confession, been fresh on the mind of Bechu. It must also be remembered that for sometime before the confession Bechu has been in the charge of a Magistrate. I do not, therefore, think that the omission of the learned Judge to pointedly refer the incident of the caning to the members of the jury was such a non-direction as to vitiate the charge. My attention has been invited to certain other portions but the argument really amounts to an argument on facts and is one which militates both against the spirit and letter of Section 418, Criminal P.C. The trial was a long one. It bears marks of great patience, industry and ability, which the learned Additional Sessions Judge brought to bear upon a somewhat difficult case.

4. Apart from the fact that the argument of the learned Counsel is an argument on questions of fact and not permissible to him by the plain terms of Section 418, Criminal P.C. the learned Assistant Government Advocate raises another objection. He contends that if the learned Counsel wanted to attack the charge in such minute details, it was obligatory upon him to foreshadow the line and the points of attack in the grounds of appeal, filed in this Court. The only grounds, which I find in the memorandum of appeal are:

(a) Because the charge to the jury is full of misdirections and non-directions. (b) Because the verdict of the jury is perverse. (c) Because the sentence is too severe.

The last ground on the question of sentence might, for the purposes of this argument be ruled out of consideration. We have, therefore, to consider the effect of the first two grounds alone. I entirely agree with the learned Assistant Government Advocate that these two grounds are not sufficient. It was held so far back as the year Queen v. Gopaul Bhereewalla (1864) 1 W.E. Cr. 21 that

in a case tried by jury, unless the parties who appeal point out in what respect the law has been con travened, the appeal should be rejected.

Chitaley, in his Code of Criminal Procedure, Edn. 2, Vol. 2, p. 2248, while dealing with this case, expresses himself in these terms:

As appeals in cases tried by a jury can only be on a point of law, every petition of appeal should state distinctly in what respect the law has been contravened. It is not for the Court to hunt through the records and find out any illegality that may arise.

He has noticed the case cited above, but there is nothing to indicate that this case was ever dissented from. The learned Assistant Government Advocate has also placed before me the records of three cases, Criminal Appeal No. 246 of 1944, Criminal Appeal No. 704 of 1944 and Criminal Appeal No. 714 of 1944. All these are cases of jury trials, in which appeals were preferred to this Court. In all these the grounds clearly foreshadowed the points of attack against the charge to the jury. The learned Counsel for the defence has not been able to invite my attention to a single authority, reported or otherwise, in support of his contention that it is open to him by taking merely such grounds, as he has taken in this appeal, to compel the Crown counsel to enter upon a roving commission to meet his points. This is enough to dispose of this appeal.

5. The learned Counsel for the appellants has further contended that the conviction, under Section 120B and under Section 395, Penal Code, is not warranted by law and reliance has been placed by him upon Section 71 of the Code. I do not so read the section and my view finds support from the case in Abdul Salim v. Emperor ('22) 9 A.I.R. 1922 Cal. 107. An appeal has been made to me on behalf of Dirgaj Singh to reduce the sentence. The dacoity was a particularly daring one, both in its conception and also in its execution. I do not think that this is a case in which the ends of justice will be met by lesser sentence. I therefore, dismiss this appeal. Before parting with this ease, I must record my appreciation of the manner in which Mr. Bind Basni Prasad, the learned Additional Sessions Judge, has tried this case.


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