STATE Vs. KAIDIA

JUDGEMENT

(1.) This is an appeal on behalf of the Government under Section 417, Cr. P. C., against the acquittal of Kaidia respondent of an offence punishable under Section 302, I.P.C.

(2.) The respondent was charged with having murdered his wife's brother's son, a young lad of about fifteen named Occhbu, by pushing him down a precipice for the sake of Rs. 730/- in cash and a gold nose-ring. At the respondent's request the boy's father Mohtu is said to have sent him to the respondent with that amount and ornament in order to settle his marriage. The Sessions Judge's judgment of acquittal has been strongly supported by the learned counsel for the respondent on the ground that there was no proof of 'corpus delicti' in this case. The body of the deceased has not been found, but a prosecution witness, Phagnia, has stated that the respondent took him to the scene of occurrence, confessed there his guilt to him, asked for his help to bury the dead body and, on his refusing to comply, threw it into the river Tons at a short distance from the base of the precipice. The prosecution also led evidence of the place of occurrence having been pointed out by the respondent, of a 'tabiz', trouserstring and cap of the deceased having been recovered at that spot, of marks of dragging from the base of the cliff to the bank of the river and of the recovery of Rs. 530/-, a nose-ring and a coat from the respondent's house. The story of the boy having been sent with the cash and ornament to the respondent for the settlement of his marriage, and of the respondent being the suspected culprit, was set forth only in the report lodged with the police a week afterwards on 18- 4-1950. It found no mention in a report (Ex. P.M.) which purports to have been scribed by one Rup Singh, Zaildar, on 15-4-1950, to the dictation of Kedar Singh, Lambardar and another, although the fact of Occhbu having been murdered by the respondent is said to have been communicated by the said Phagnia to one Jujuwa and by the latter to the deceased's father on the very next day after the murder, and by the deceased's father to Kedar Singh on 15- 4-1950. The report Ex. P.M., which purports to have been scribed in the presence of the deceased's father and the respondent himself, was suppressed by the investigating head-constable Sunder Lal and produced by him only on being ordered by the learned Sessions Judge to do so after its existence had been disclosed by other prosecution witnesses. The main plank of the argument of the learned Government Advocate was that Ex. P.M., should not be taken into consideration notwithstanding its production by the investigating headconstable himself because it was inadmissible in evidence, and that, on its being so rejected, the pointing out of the place of occurrence by the respondent and the recovery of the said article from there and of the cash and ornament from his house were, in the absence of any explanation from the respondent, sufficient for his conviction, even though the learned Sessions Judge be right in discarding Phagnia's evidence with regard to the respondent having confessed his guilt to him and thrown the dead body of the deceased into the river in his presence. On the other hand, it was argued by the learned counsel for the respondent that on the showing of the prosecution witnesses themselves it was the police which took the accused to the place of occurrence, and not 'vice versa', and that the mere recovery of a portion of the alleged cash and the ornament is not sufficient for bringing the guilt home to the respondent unless and until possession of those articles by the respondent could not be attributed to any other cause but the alleged murder. And in this connection it was pointed out that the remaining Rs. 200/-, which the deceased is said to have taken to the respondent's house on a second visit, were in any case not recovered from his house, so that it is possible that the boy was murdered by somebody else, if it be a fact that he has been murdered, for the sake of those Rs. 200/-.

(3.) It is, however, not necessary for me to enter into the merits of the case since, in my opinion, the contention of the learned counsel for the respondent that this appeal is time-barred is well-founded. And I am glad to be able to say that I have no compunction in throwing out this appeal on the ground of limitation inasmuch as I am satisfied that the decision of the learned Sessions Judge was on merits quite correct. In fact, the present appeal has been filed against the very intention underlying the enactment of Section 417, Cr. P.C., namely, a miscarriage of justice so grave as would induce the Local Government to move in the matter, as laid down in 'Deputy Legal Remembrancer v. Karuna Baistobi', 22 Cal 164. The reason for the filing of such a misconceived appeal seems to be that there is no Legal Remembrancer to help our Government in such matters and the learned Government Advocate, who argued the case before the Sessions Judge, was naturally inclined in favour of the strength of his case.