LALSAIYYA ALIAS LAL SAHAI Vs. STATE

JUDGEMENT

(1.) This is an appeal by Lalsaiyya alias Lal Sahai, who has been convicted Under Sec. 201, IPC, and sentenced to seven years' rigorous imprisonment and also Under Sec. 302, read with S. 34, IPC, and sentenced to death. Along with the appeal there is before us the usual reference for confirmation of the death sentence. There was a co -accused by name Ram Dayal alias Ramdilla, who was charged under the same Ss. but he was acquitted by the learned Sessions Judge.

(2.) The story for the prosecution was that Smt. Ganga Devi (PW 3) was married to Randhira deceased about three years before the present occurrence. Smt. Ganga Devi and Randhira lived happily for sometime. Randhira suspected the fidelity of Smt. Ganga Devi and began to ill -treat her About two months before the present occurrence Lalsaiyya Appellant, it is alleged, developed illicit intimacy with Smt. Ganga Devi. This came to be known in the village and was resented by Randhira, who used to be on the look out of an opportunity to beat Lalsaiyya. The prosecution contended that four or five days before the incident Randhira went to a fair at Jarar and remained absent from his house for three or four days. During this time Lalsaiyya forced his company on Smt. Ganga Devi and was seen visiting her house by the people of the village. On his return Randhira was told about this by Smt. Ganga Devi herself. It was contended that on the night between 13 and 14 April 1956, at about the break of dawn Lalsaiyya and Ram Dayal attacked Randhira who was sleeping on a cot in the courtyard in front of his house. Smt. Ganga Devi was sleeping on a cot nearby. She woke up on hearing Randhira's shouts. Her mouth, it is alleged was gagged and she could not raise an alarm. The prosecution contended that Lalsaiyya sat on the chest of Randhira and caught hold of his hands and Ram Dayal gave blows with a gandasa (Ex. 1) -Randhira, who was a strong man struggled hard and managed to free himself. He fell on the ground and thereafter he was given a few more blows and he died on the spot. The two accused set about to obliterate the traces of the murder. It is alleged that they compelled Smt. Ganga Devi to scrape the blood stained ground underneath the cot and to plaster the place with cow -dung. They also directed her to cut the blood stained portion of the cot and they made her wash the cot and her clothes. Thereafter they tied the dead body in a piece of gunny and carried the corpse to a neighbouring cave. They also threatened Smt. Ganga Devi not to make the disclosure of the matter to anyone and told her that she should tell the people, if they come to make an enquiry, that five men had come, two being armed with guns and had taken Randhira with them across the Chambal and that Randhira would be away for a month. Smt. Sumeria alias Umaria, who was Lalsaiyya's elder brother's wife had lost her she buffalo and she came to Randhira's house. The prosecution contended that she saw the two accused carrying away the corpse and on enquiry was told by Smt. Ganga Devi that Randhira had been killed by the accused. In the village Smt. Ganga Devi gave out that Randhira had left the village in the circumstances stated above. The village people however, saw freshly plastered earth and a portion of the charpai cut. After some delay Smt. Ganga Devi came forward with the truth. Chaukidar Sunder Singh (PW 4) came to know of the occurrence at his threshing floor at about 10 a.m. He came to the village and talked with the people of the village, who had collected at Randhira's house, talked to Smt. Ganga Devi as well, went to the cave where the corpse was and thereafter he proceeded to the police station Jaitpur, which was at a distance of about five miles from the place of occurrence and there he lodged the first information report at about 12 -30 in the day. Investigation followed. The blood stained earth was recovered from the scene of occurrence. The gandasa (Ex. 1) is said to have been recovered at the instance of the accused. The dead body was sent for post mortem examination. The medical evidence disclosed that the deceased had no less than twenty injuries, most of which were incised wounds and others were abraded contusions and abrasions. The skull bones were found fractured. There was laceration of the brain. The fourth cervical vertebra was cut through and through and dislocated and at the same level the spinal column was cut. through. In the opinion of the doctor who conducted the post mortem, death was due to shock and hemorrhage on account of the injuries on the head and neck.

(3.) The factum of murder cannot for a moment be disputed. The question is whether the murder had been committed by the Appellant as alleged by the prosecution. The prosecution story as unfolded in Court and as stated in the first information report was that the occurrence took place at the break of dawn. We have not been able to find out anything from the record which should have justified the learned Sessions Judge in coming to the conclusion that the occurrence took place at about 2 O' clock in the morning. Even Smt. Ganga Devi PW 3 an alleged eye witness on whom the learned Sessions Judge relied stated that when the murder was committed dawn had broken and people were going out for easing themselves. That would not bring the time of the occurrence to 2 a.m. The dawn could not have broken at that hour on 14 -4 -1956. The Sessions Judge himself remarked that on that day the break of dawn was at 5 -40 in the morning.