STATE Vs. LILANAND PATHAK

JUDGEMENT

(1.) The learned Additional Sessions Judge has referred this case under Section 366 of the Code of Criminal Procedure, 1973, for confirmation of the death sentence on Lilanand Pathak for his conviction under Section 302 of the Indian Penal Code for the murder of Ekwari Devi, wife of Punyanand Pathak (P.W. 16) on 28th of October 1970 at 7 P.M. in the room which the appellant was occupying in the house belonging to him and P.W. 16 in village Hardi, Police Station Supaul.inthe district of Saharsa. Against his conviction and sentence, Lilanand Pathak (hereinafter referred to as the appellant) also filed an appeal from jail in this Court, and the same was registered as Criminal Appeal 59 of 1976, Subsequently presented appeal was also filed by him which was registered as Criminal appeal 58 of 1976. In that view of the matter, both the appeals and the death reference will be decided by this common judgment

(2.) The prosecution cam, in brief, was that the appellant is the cousin of P.W. 16. Although they were messing separately, their property was Joint. P.W. 16 had half share in the ancestral land and the remaining half belonged to the three cousin brothers of P.W. 16. They were living in the same angan of the house. In the share of P.W. 16 there were two rooms - one on the west and the other on the south. At the relevant time, P.W. 16 was at Durgasthan along with his uncle, Sheonandan Pathak (P.W. 8). P.WS. 8 and 16 were priests of the Durgasthan. Indra Kant Pathak (P.W. 15), son of P.W. 16, went to the Durgasthan and told P.W. 16 that P.W. 15 had kept the goods in the house after returning from Market P.W. 15 further stated that his mother, namely, Ekwari Devi, the deceased, did not respond to his call when he went to the darwazai. Phulo Dai (P.W. 5), the grand-mother of P.W. 15, asked P.W. 15 to go and call P.Ws. 8 and 16. P.W. 15 also stated that Renu Kumari (P.W. 13), daughter of the deceased, told him that the appellant asked the deceased to mud-wash the ground in his room and killed her. Hearing the sad news, P.Ws. 8 and 16 along with Juri Mandal (P.W. 2) left for home P.W. 16 stayed at the darwaza, whereas P.Ws. 2 and 8 went inside. Both of them came out and said that the appellant had killed the wife of P.W. I with an axe. They also said that the dead body was in the house, and the appellant neither allowed any one to enter the house nor did he allow them to remove the dead body. Thereupon, P.W. 16 went to the house of Bhagwat Pd. Yadava (P.W. 7), a cultivator of the village. With Tetar Sharma (P.W. 1), the Chaukidar, and with P.W. 7 they all came back. Then, they went to the angan. It seems that Sheonandan Pathak (P.W. 8), father of the appellant, informed about it to Moti Prasad Singh (P.W. 12). the Mukhiya of the Gram Panchayat Thereupon, P.W. 12 along with the Up-Mukhiya, Ramji Pd. Yadav and Chaukidar Kishan Paswaa went to the house of P.W. 8, and saw that a considerable crowd had assembled at his darwaza. P.W. 12 saw the deceased lying dead in one of the rooms of the appellant. Thereupon, P.W. 12 asked If any information had been sent to the Police station or not. When it transpired that no information had been sent, he sent P.W. 1 to the police station along with some other person. Thereupon, P.W. 1 went to the police station and lodged first information raport (Ext. 5) on 21st of October 1970 at 1 a.m., the occurrence having taken place on 20th of October 1970 at 7 p.m. the distance between the place of occurrence and the police station being 9 miles. The first information was recorded by Mahesh Pd. (P.W. 17), the officer in charge of the Police Station. He went to the place of occurrence, and there he arrested the appellant. He sent the dead body for post-mortem examination along with P.W. 1 to Supaul Subdivisional Hospital. On 22nd of October, Dr. B.L. Das (P.W. 11), who was attached to the said hospital, held post-mortem examination on the dead body on the same date, i.e., 82nd of October, 1970 at 11 a.m. P.W. 17, after completing the investigation, submitted charge-sheet against the appellant. After the usual enquiry, the appellant was committed to the Court of Session.

(3.) Before the Court of Session, on behalf of the prosecution as many as 17 witnesses, including those already mentioned, were accamined to establish the prosecution case. Out of the witnesses, the evidence of P.Ws. 5 and 14 was simply tendered by the prosecution. It may be noticed that among the witnesses, P.W. 13 is the only eye-witnass of the occurrence. It will be also relevant to mention here that P.W. 1, P.W. 2, P.W 3, Deobarat Tanti (P.W. 4), Kamleshwari Pd. Yadav (P.W. 6), Bhagwat Pd. Yadava (P.W. 7). Sheonandan Pathak (P.W. 6) and Moti Pd. Singh (P.W. 12) were declared hostile. The prosecution has further relied on the confession (Ext. 3) of the appellant which was recorded by Bindesh-wari Pandey, Chief Administrative Officer (P.W. 9). Abdul Alim Mohnair (P.W. 10), the Second Officer, had recorded the earlier statement of P.Ws 8 and 16 under Section 164 of the Old Code of Criminal Procedure.