KORI Vs. STATE

JUDGEMENT

(1.) Appellant Kori alias Kora Ghuniya was tried upon a charge of murder and appellant Upendra Nath Mandal was tried upon a charge of abetment of murder by the learned Sessions Judge of Purulia without the aid of a Jury. The learned Judge found each appellant guilty of the relative offence and sentenced each to life imprisonment.

(2.) The prosecution case against the appellants was briefly as follows :

(3.) The deceased Aswini Kumar Banerjee was a resident of Ramkanali. At the material time he was employed as a postman attached to Neturia Sub-Post Office. At about 8 a.m. on 19-10-1956, Aswini left home on a bicycle to report himself for duty at the sub-post office. He carried with him some postal articles, including certain undelivered registered letters, money orders forms and bearing letters. He proceeded along the Barakar-Purulia Road and when he came near mile post No. 10 he found the two appellants hiding themselves near a culvert not far off. As there was enmity between him and his relations, on the one hand, and the appellants and their men, on the other, Aswini became afraid and took a turn to the left along a village road instead of proceeding along the Barakar-Purulia Road. At this, the two appellants started chasing him along the village Road. Realising that he would be overtaken if he proceeded on the bicycle, Aswini jettisoned it and started running. After a little while Aswini was overtaken by appellant Upendra Nath Mandal who caught hold of him and pushed him down. Appellant Kori who reached the place by this time, struck Aswini on the head with a tangi. This was followed by other tangi blows causing multiple injuries on the person of Aswini. Thereafter both the appellants made good their escape. Some time after, Dhanu Bauri, a Chowkidar of Madandih, got information that a man was lying injured on the village road near mile post No. 10. Dhanu Bauri went to the place along with Helu Oraon who had given the information. They found Aswini Banerjee lying in an injured condition. On being questioned, Aswini told Dhanu Bauri that he had been injured by Kori and Upen. Thereafter one Fakir Goala came to the place. Fakir also enquired of Aswini as to how he had been injured. Aswini told Fakir that he had been injured by Kori and Upen. Helu Oraon had in the mean time left the place. Dhanu Bauri then went away to get a doctor, leaving Fakir Goala there. Shortly afterwards Dhanu Bauri returned with a compounder of a dispensary belonging to the Equitable Coal Co. Ltd. The compounder saw the injured from a distance and went away. Thereafter Dhanu Bauri went to Madandir village and there informed Trilok Bauri about the occurrence and asked him to go to the Police Station at Neturia and lodge an information about it. Neturia was at a distance of about 4 miles from Madandih. Trilok Bauri went there and lodged an information about the incident at about 11-30 a.m. In consequence of this information, Inspector Tej Narain Singh reached the place of occurrence by noon. He found Aswini lying injured. Sub-Inspector Tej Narain Singh then recorded the statement of Aswini Kumar Banerjee who affixed his left thumb impression upon the document in token of being satisfied that the statement had been correctly re-corded. Fakir Goala attested the said document as an attesting witness. The Sub-Inspector of Police took into custody the bicycle, some blood-stained earth and other alamats which were lying scattered there. A rough sketch of the locality was also prepared by the Sub-Inspector. A younger brother of Aswini,. named Golak Banerjee, had in the meantime reached the place of occurrence. He had brought Dr. Jaikrishna Mandal to render first aid to Aswini. Golak enquired of his brother as to who had assaulted him, whereupon Aswini mentioned the names of Kori and Upen as his assailants. Aswini was thereafter sent to Purulia Sadar Hospital for treatment with a request to the Doctor to take down a dying declaration of the injured. Dr. B. N. Dwivedi, the then Civil Assistant Surgeon of the Sadar Hospital, recorded a dying declaration of Aswini at about 5-30 p.m. on the same day. This dying declaration was recorded in Hindi script. Sub-Inspector Tej Narain Singh searched the houses of the two accused but found nothing incriminating there. Kodi alias Kara could not be found, but appellant Upendra Nath Mandal was arrested at his own house between 3 and 4 p.m. the same day. Aswini died at 2-30 p.m. the next day, i.e. 20-10-1956. Accused Kori was produced under arrest on 4-12-1956. Both the appellants pleaded not guilty to the charges. The defence was that Aswini Kumar Banerjee had not named them and that they had been falsely implicated. Appellant Kori took a plea of alibi when examined under Section 342, Cr. P. C. As to the crime, the only evidence in the case was the dying declaration of the deceased. That Aswini had been murderously assaulted and in consequence died could not be questioned on the evidence adduced by the prosecution. In our view, the learned Judge rightly held that Aswini had been murdered. It is not necessary to discuss this aspect of the matter any further. The real question in this case was whether appellant Kori had struck the deceased with a tangi, while the other appellant held the deceased down. As to this, there was only the dying declaration of the man. Before we deal with the evidence we should mention that the learned Sessions Judge took the view that although it was unsafe to convict a man on a dying declaration without corroboration, he was satisfied that the declaration in the case naming the two appellants was a truthful one. The learned Judge referred to the decision of their Lordships of the Supreme Court in Ram Nath Madhoprasad v. State of Madhya Pradesh. In fact an excerpt from the judgment was quoted by the learned Judge.