GOMTU Vs. STATE

JUDGEMENT

(1.) THE appellant, Gomtu, was charged under Sections 302, 201 and 436 I. P. C. The charge contained three heads. The first head is a charge for committing the murder of a man called Gover Singh, "together with Bali and Dharam. Khubu, and Karmu during the night 31st December. 1968 and 1st January. 1969" although no reference to either Section 34 I. P. C. or a "common intention" is made in the charge. The remaining two heads of charges, one under Section 201 and the other under Section 436 I. P. C. , are also framed without invoking the aid of Section 34 I. P. C. The learned Sessions Judge of Mandi acquitted Bali as well as the three sons of the appellant namely, Dharmu Khubu and Karmu because the evidence against them was found by him to be doubtful, but, convicted Gomtu appellant of an offence punishable under Section 302 I. P. C. and sentenced him to rigorous imprisonment for life and to pay a fine of Rs. 700/-, and, in default to undergo rigorous imprisonment for a further period of one year. The learned Sessions Judge, however, gave even the appellant the benefit of doubt so far as the alleged offences under Sections 201 and 436 I. P. C. were concerned. The transaction or occurrence, of which there was no eye-witness, was presumed to be one. Hence, the joinder of charges.

(2.) ACCORDING to the. prosecution case. Gian Chand (P. W. I) had purchased about 50 bighas of land in village Rawar at a distance of about 1 1/2 miles from village Siani, had planted an orchard there, and had employed the deceased Gover Singh, a Gorkha, as a Mali, to look after the orchard. Apparently. Gover Singh, deceased, lived alone in this orchard in a small double storeyed house. The house was also isolated from the Abadi which was at a distance of about 500 metres from there. Hence, nobody seems to have been able, immediately after the occurrence, to discover the murder or the fire alleged to have been set to the house at the orchard in order to conceal the murder of Cover Singh. It was only when Gian Chand. P. W. I, whose suspicion was said to have been aroused by the fact that Gover Singh did not come to his shop as usual to take his ration, is said to have gone to the orchard , on 4-1-1969. together with Satyapal. Budh-ram and Sarnu that he discovered what he suspected to be a murder. He gives an account of this discovery which is not quite natural. According to him. he had, even before he suspected a murder, arson, or foul play, gone to the orchard with his brother Satyapal, and Budh Ram, tailor master, picking up a man called Chalangru alias Sarnu on the way, from whom he had inquired (apparently without any reason to suspect a fire) whether he had seen any smoke coming out of the house of Gover Singh, This version is found in the statement made by Gian, Chand (P. W. I) in the Court of the committing Magistrate (Ex. DB), but he : omits to mention, at the trial, the inquiry from Sarnu about the smoke. The preparation to enter the house after a collection of others, suggests that Gian Chand had perhaps already come to know or suspect what had happened. After all. the failure of Cover Singh to turn up for three days could not give him the idea that the house was burnt. Gover Singh could have fallen ill or gone away somewhere. Even if Gian Chand had said that he had gone with his brother first it would not have seemed unnatural. But, the way he collected men and had even asked one of them, apparently without any rhyme or reason, whether he had seen smoke coming from Gover Singh's house, gives rise to the suspicion that his version was not entirely truthful. Probably, he had visited the house earlier and had then gone again with others because things looked suspicious. It is hard to believe that Gian Chand could have behaved as he did if this was not so.

(3.) WHEN Gian Chand (P. W. 1) with others, visited the house, they found the door of the room on the ground floor, where cattle were kept, barred from inside with a Jhabbal (iron bar ). When the room was opened, by inserting a hand from outside into an opening an ox was found tied but other cattle were loose in the room. This may have been due to the fact that they had got scared and broken loose when there was a fire. A portion of the roof of the room wag burnt and had fallen. Buried in the debris was the body of Gover Singh. But, the partially burnt and blackened head was found severed from the body. Blood was also found there, Pieces of burnt bedding and clothing were also found. Hence, a murder followed by arson to cover it up, was suspected,