STATE Vs. PRABHU SAHAY KHARIA

JUDGEMENT

(1.) This reference under Section 374 of the Code of Criminal Procedure has been made by the Second Additional Judicial Commissioner of Chota Nagpur for confirmation of the sentence of death awarded by him under Section 302 read with Section 34 of the Indian Penal Code to the three accused persons in Sessions Trial No. 28/13 of 1968 for the commission of the murder of one Bamabas Kharia. The aforesaid accused persons have also filed an appeal from Jail against their conviction and sentence under Section 302 read with Section 34 of the Indian Penal Code. The reference and the appeal have been heard together and they will be governed by this common judgment.

(2.) Appellants Mansidh Kharia and Mural Kharia are sons of appellant Prabhu Sahay Kharia. The case of the prosecution is that appellant Prabhu Sahay had a dispute with the deceased regarding plots 116 and 118 of Khata No. 8, known as Makar Kanda field, in village Machka within the jurisdiction of police station Kolabira in the district of Ranchi. This dispute gave rise to a proceeding under Section 145 of the Code of Criminal Procedure between the deceased and the appellants which was decided in favour of the deceased on the 25th September 1967. It is alleged that, early in the morning on the 7th November 1967, when the deceased was milking his cow in his angan, the appellants, armed with a lathi, a balua and And tangi, came there. Appellant Mural assaulted the deceased with the tangi, as a result of which the deceased fell down. The appellant Mansidh assaulted him with the balua and appellant Prabhu Sahay assaulted him with the lathi. The deceased died then and there. Thereafter, the appellants took the dead body to some distance and then dragged it to the aforesaid Makar Kanda field and left it there.

(3.) The further case of the prosecution is that the deceased had a barki and a chadar on his person and, while his dead body was being removed, the barki and the chadar fell down in his angan and were stained with blood. In Makar Kanda field, appellant Prabhu Sahay cut the left leg of the dead body and. then he took the tangi and the cut leg in a sack, wrapped with leaves, and produced the same before the officer in charge of Kolebira Police station (P.W. 14), giving rise to station diary entry No. 136 (Ex. 2) recorded by P.W. 14 on his statement at 10-30 A.M. on the same date in presence of Deo Prasad Sahu (P.W. 5) and Balkishun Sahu (P.W. 13), wherein it has been stated that appellant Prabhu Sahay cut the leg of the deceased with a tangi, assaulted him with the same incessantly and killed him and that he had brought the left leg after cutting it and the tangi with which he assauted the deceased. P.W. 14 arrested Prabhu Sahay then and there. Thereafter, at about 11 A.M. Philip Kharia (P.W. 1) lodged' a first information report (Ex. 5) at the police station.