RAMDAYAL CHAMAR Vs. THE STATE

JUDGEMENT

(1.) THE appellant, Ramdayal Chamar, was charged under Section 304, I. P. C, with respect to the death of one Gandaria Chamar of Badlipar Tea Estate on the night of 26 -11 -1950 the assault having taken place at about 7 or 8 p.m. Another person Ramdas Chamar was also jointly tried with Ramdayal on a charge of abetment of culpable homicide (under Section 304/109, I.P.C.) and under Section 323, I. P, C, for voluntarily causing hurt to Pauchu, the son of Gandaria on the night of occurrence. The Jury returned a verdict of not guilty against Ramdas Chamar with regard to both the charges framed against him but they returned a verdict of guilty against the appellant Ramdayal Chamar under Section 304 (Part I), I.P.C. The learned Additional Assistant Sessions Judge, U. A. D. accepted the unanimous verdict of the Jury and convicted Ramdayal Chamar under Section 304 (Part I), I.P.C. and sentenced him to six years' rigorous imprisonment. The appeal is against this conviction and sentence.

(2.) THE prosecution case is that Gandaria Chamar and accused Ramdas Chamar are neighbours and on the evening of 26 -11 -50, Gandaria went to Ramkisen's house, - Ramkisen being the father of accused Ramdas and complained to him that his pigs had damaged Gandaria's paddy. At this, there was an altercation between accused Ramdas and Gandaria and Pauchu, P. W. 1, on hearing a 'hulla' hurriedly went to Ramkisen's courtyard and there he saw accused Ramdayal dealing a blow on the head of Gandaria with the blunt edge of a hoe, Ramdayal was the son -in -law of Ramkisen and the brother -in -law of Ramdas. Gandaria fell down unconscious on receiving the blow. Pauchu alleges that Ramdas assaulted him too, taut seeing his father seriously injured, he went to Ahlad Chowkidar (P. W. 4) at once and reported to him about the occurrence. Ahlad Chowkidar came immediately and found Gandaria lying unconscious in the courtyard of Ramdas and with a bleeding injury on his head.

(3.) MR . Goswami for the appellant contended that the charge to the jury contained several misdirections and one of them was that the evidence in the case was not properly placed before the jury by the learned Additional Assistant Sessions Judge and as a matter of fact, there was no evidence to justify the conviction of the accused. He further contended that it was a misdirection to place before the Jury the statement of P, W. 3 recorded in the committing Court which was damaging to the accused inasmuch as she was not asked nor warned about the same when she was being examined in the Court of Session. In the Sessions Court this witness said that it was Ramdas whom she saw assaulting Gandaria and not Ramdayal, but in the committing Court, she deposed to have seen Ramdayal striking her father -in -law, Gandaria with a hoe. The evidence was undoubtedly tendered under Section 238 , Criminal P. C., but she ought to have been given a chance to offer her own explanation for the variation in the statement. At least it ought to have been pointed out to the jury that she was not dependable as a witness as she made divergent statements in the two Courts on a material point, Another contention of Mr. Goswami was that P. W. 1, Pauchu was the only witness and the doctor deposed that he was found to be under the influence of liquor and therefore, the jury ought to have been told that they ought to put very little reliance on what he deposed to have seen. This fact of course was placed before the jury.