TULSIRAM KANU Vs. STATE

JUDGEMENT

(1.) This is an appeal from the judgment and order of the High Court at Nagpur, reversing the judgment and order of the Additional Sessions Judge, Bhandara, and convicting the appellant for the offence of murder and passing a sentence of death on him under S. 302, Penal Code. The brief facts are these.

(2.) After the committal proceedings, the appellant was tried before the Sessions Judge with four assessors. He was charged with offence of murder under S. 302 and with dishonestly misappropriating property possessed by the said. Kawadu at the time of his death, under S. 404, I.P.C. The assessors unanimously found the appellant not guilty of any offence. The Sessions Judge in a detailed and considered judgment also found the appellant not guilty of any offence and acquitted him. The State Government appealed to the High Court and the High Court reversed the finding of the Sessions Judge and convicted the appellant of the offence of murder and sentenced him to death. The matter was fully argued before us in detail and as in our opinion the conclusion of the High Court was not correct we direct that the appellant be set at liberty and we now give our reasons for our conclusion.

(3.) The case of the prosecution before the Sessions Judge was that three or four days before 26-5-1949 the appellant had told the deceased that he should not wear gold ornaments as someone might murder him for the same. It was alleged that the deceased reported this to his wife and another witnesses. On the day in question the appellant was seen at about 10 a.m. digging roots with an axe and a crowbar about 40 paces away from the spot where the deceased was sitting. There is no evidence thereafter of the movements of the appellant. The post-mortem examination of the body of the deceased that his stomach was empty and at the time of his death was therefore fixed between 4 and 5 p.m. The post-mortem examination further showed that there was a punctured wound on the head which might have been caused by a blow with an axe when the deceased was in a standing position. The fracture of ribs was stated to be possible when the deceased was in a reclining position. The evidence of Somku (P. W. 8) who had gone in the jungle to collect some firewood shows that the appellant was digging roots not far away from where the deceased was sitting, at about 10 a.m. The brother-in-law of the appellant, Mangroo, produced certain ear ornaments which the widow and two other witnesses identified as ornaments the deceased was habitually wearing.