KANDHAI MANFER Vs. STATE OF V P

JUDGEMENT

(1.) THE appellants have been convicted under Sections 302 and 34, IPC and sentenced to transportation for life, and a fine of Rs. 50/- with R. I. for three months in default, for murder of Bazi Panka a village ojha. Besides the facts which are simple, the case involves questions of law about the caution to be observed in recording a confession under Section 164, Cr. P. C. about the value of a plea of guilty before the committing Magistrate which is subsequently retracted before the Sessions Judge, the weight to be attached to the evidence of an eyewitness who does not interfere or raise a hue and cry at the sight of the murder, and the manner in which investigating officers should record the statements of the witnesses.

(2.) TWO of the appellants Kandhai Teli and Dadu Teli son of Ram Ratan belong to village Atraila and the third, Dadu son of Shivadhari belongs to the adjoining village Shahpur both in thana Waidhan. At a short distance from those villages, there lived one Bazi Panka, professonal ojha or witch-doctor. So completely did the villagers believe in his ability to cure them that every failure or relapse of illness, was to them the result of the ojha's perversity or greed for more money by continuing the treatment. For sometime before of 27. 9. 52, all the appellants had reason for dissatisfaction with him. . Kandhai Teli had a four years' old son who had suffered and ultimately died from what was later on diagnosed by a doctor to be diarrhea. For two months Bazii Parika had made several professional calls, and taken money but had allowed evil spirit of the disease to return. Dadu son of Shivadhari had a child whose fever had repeatedly relapsed, in spite of the ojha's treatment; later on, the doctor diagnosed it as malaria, but the patient's father knew it to be an evil spirit which Bazi Panka was setting on his child whenever he wanted to extort money. Dadu son of Ram Ratan Teli had an ailing father who also was ill off and on.

(3.) AT about sunset on Saturday, the 27th September, 1952 Kandhai Teli went to the house of Bazi Panka and fetched him to see the ailing child. The latter's wife states further that she asked Kandhai to accompany her husband back to his house, if it got late at night. He did not reach home but was found on the next day dead on the road near the place of Kandhai Teli and Dadu son of Ram Ratan. Other witnesses speak of what happened at this end. Sadhu Tell the brotherin-law of Kandhai, and a distant relation of the two other appellants states that he saw Kandhai bring Bazi Panka to his house, Dadu, son of Sheodhari came there, anxious to take him to his own house; ha stated to Sadhu that if the ojha was unsuccessful this time, it would, be bad for him. After a short visit to this Dadu's house, Kandhai and Bazi returned and continued the ojha. In the meantime he came again and wanted the ojha to pay another visit to his house; the latter tried to put off but the inviter was insisting. By now, the other Sadhu i. e. , the son of Ram Ratan, joined them and asked the ojha what he was doing there to which he replied that he had been called by Kandhai to treat his son. This Dadu s/o Ram Ratan also told Sadhu Teli that he would beat up Bazi Panka as he was setting spirits upon people. About that night's happenings Sadhu's story ends here. He adds that on the next morning Kandhai said to him that he and these two Dadus had killed Bazi Panka. (3a) The witness Daokaran Chamar states that later on that night he saw Kandhai, footh the Dadus, and the deceased going by his house. The witness Ram Lakh an Teli a relation of Kandhai, living within 50 paces from Kandhai's house, says that he was at Kandhai Teli's house that night and saw Dadu s/o Shivadhari, come and ask Bazi Panka to accompany him to go to his house; after making futile excuses and the inviter's insistence the ojha went with him.