MANDARA MAJHI AND ANR. Vs. STATE

JUDGEMENT

(1.) THE accused Appellants Mandara Majhi and Bhagabat Tudu alias Majhi were convicted and sentenced to R.I. for life on a charge of having murdered Shama Majhi on the night of May 20, 1964, at 8 p. m. with a Kendu stick and a bamboo stick, in the circumstances hereinafter stated. The motive of Mandara Majhi was that he suspected the deceased having practised witchcraft as a result of which his minor brothers died; he also suspected that the deceased was in the act of visiting his mother. The motive of Bhagabat Majhi in joining Mandara Majhi in the crime was that he had some land dispute with the deceased.

(2.) THE prosecution case is "that on May 20, 1964, at about 8 p. m. at Koi -Kalaspur, Kamakhyanagar, District Dhenkanal, the two accused -Appellants herein in furtherance of the common intention committed murder of the deceased Shama Majhi. On May 21, 1964, at 5 p. m. the local choukidar p.w.4 lodged first information report at the police station If; mil from the place of occurrence. The following day on May 2, 1964, the two accused persons were arrested from their respective houses. On May 23, 1964 the doctor held post -mortem on the body of the deceased which by then was in a decomposed state. After Police investigation the two accused persons were charged, committed and sent up for trial by the learned Sessions Judge who convicted and sentenced them both as aforesaid. The accused Appellants denied the charge against them.

(3.) THE evidence of the two eye -witnesses p. ws. 5 and 6 in substance is this: on the date of the incident in the evening p.w.5 heard the cry of the deceased that he was dying. So p.w.5 and p.w.6 who was with him rushed to the spot and found the two accused persons assaulting the deceased Shama with sticks; on arrival p.w.5 snatched the stick of the accused Bhagaat; p.w.6 snatched the stick of the accused Mandara; the deceased was at that time lying injured; it was by then one and half ghadis at night. In cross -examination p.w.5 however had said that he had not seen any assault, but saw the deceased with bleeding injuries; but immediately in the next sentence p.w.5 corrected himself and said that it was incorrect to say that he had not seen the accused persons assaulting the deceased. What apparently p.w.5 had meant when he said that he had not seen the assault was presumably the scuffle that was going on between the deceased on the one hand and the two accused Appellants on the other, before p.w.5 and others appeared on the scene of occurrence.' The evidence of p.w.5 was in all material particulars corroborated by the other eye -witness p.w.6. P.w.6 also said that as he along with other was returning home, on the way he heard the cry of the deceased seeking assistance as he was being assaulted to death; upon hearing this p.w.6 rushed to the spot and found the accused persons assaulting the deceased Shama with sticks,; others also came immediately after him; he snatched the stick of the accused Mandra, from his back side. P.w.6 also said, that p.w.5.who cam following him similarly caught hold of the stick of the accused Bhagabat; the deceased Shama was at that time lying in a dying state. It is said that the two accused persons carried the deceased Shama to his house.