TEJA Vs. STATE

JUDGEMENT

(1.) FOR the murder of Mst. Koyali, the learned Sessions Judge, Jhun-jhunu, has convicted Teja appellant under sec. 302, I. P. C. , and sentenced him to undergo imprisonment for life. He has come up in appeal.

(2.) IN village Mahrampur, police station, Chirawa, lived the widow of Pokar, Mst. Koyali, aged about 30 years, Pokar had died sometime in 1961. IN the morning of February 1, 1967, Teja made a first information report (Ex. P. 15) in the police station, Chirawa, to the effect that Mst. Koyali was on terms of intimacy with him but later to his chagrin he was displaced by Malaram Jat for whom she developed affection. On the night intervening January 31 and February 1,1967, Teja said, he murdered Mst. Koyali in her room by means of a 'gandasi' (axe ). A small boy Harlal was also in the room at that time. Teja further said that he went to Malaram's house thereafter and did him to death by the same 'gandasi', Shri Narain Singh, Station House Officer, Chirawa, recorded this first information report and finding that Teja was wearing a Dhoti and a shirt, both of which were blood stained, he recovered these clothes in the presence of Motbirs and arrested him. Teja also informed the Station House Officer that he had concealed the 'gandasi' below Malaram's cot in his house which he was prepared to get recovered. Taking Teja and Dr. Girdhar Bhomia, Medical Officer, Chirawa, with him in a Jeep, Narain Singh started for the scenes of the occurrences. When jeep reached near Kabutar Khana in Chirawa, Mahabir son of Deburam and Naurang-ram met the Station House Officer and presented a report (Ex. D. 6) which merely mentioned the fact that 2 murders had taken place in village Maharampur without giving the name of the offender. Teja got the 'gandasi', Ex. 1, recovered from beneath the cot on which Malaram lay and delivered it to Narain Singh. He went to the 'khuddi' (Cachcha room) of Mst. Koyali, and got the inquest report Ex. P. 5 prepared recovered the blood-stained clothes from her corpse and sealed them. Dr. Bhomia performed the postmortem examination on the body of Mst. Koyali and found the following injuries: 1. INcised wound 4"x3''x2" on the scalp, left side. 2. INcised wound with cutting of the left ear, upper and lower part, 6"x3"xl", on the left temporal region. 3. INcised wound 6"x4"x5" on left side of the neck, and all the vital organs cut off. 4. INcised wound 3"x3"x2" at the root of the neck, anteriorly with cutting traches in two parts. 5. INcised wound 6"x4"x2" at the neck anteriorly on the thyroid bone, and thyroid apparatus cut off. 6. INcised wound 6"x2"x4" on posterior chest-wall, with visual lung and broken ribs. 7. INcised wound 3"x3"x2" on left side of the scapula posteriorly. 8. INcised wound 3"x5"x2" at the base of the neck, posteriorly. 9. INcised wound 4"x2"2x" on the left shoulder. 10 INcised wound 3"'x2"x2" on anterior side of the right elbow. 11. Lacerated wound l"xl-1/2" on the base of the left hand, index finger, laterally. 12. INcised wound 4"x3"x2" on posterior side of upper chest, mid-line. 13. Chest-wall posteriorly multiple injuries, incised wounds, with the fracture of upper third, fourth, fifth and sixth ribs at posterior side. 14. Pleura INjured at multiple places with blood stains. 15. Trachea separated at the root of neck, as mentioned above. 16. Right lung incised wounds present at 4 places, with congestion. 17. Left lung incised wounds present at 4 places, and stained with blood. 18. Large-vessels both side internal carotid artery cut down at the root of neck. " The Doctor expressed the opinion that the injuries were ante-mortem and injuries Nos. 1 to 7, and 13 to 18 were grievous. Death was due to the grievous injuries to the vital organs, such as, brain, blood-vessels, trachea and resultant severe haemorrhage. The injuries were sufficient in the ordinary course of nature to have caused the death of Mst. Koyali. Having completed the investigation, a report was submitted by the police to the Munsiff Magistrate. Chirawa, against Teja and Sukhdeva for the murders of Malaram and Mst. Koyali. After preliminary inquiry under sec. 207-A. Cr. P. C. , the learned Magistrate discharged both the accused persons in regard to the murder of Malaram, but committed both of them to face their trial before the learned Sessions Judge, Jhunjhunu, in regard to the murder of Mst Koyali. The learned Public Prossecutor moved the Sessions Judge to frame a charge against these persons in regard to the murder of Malaram, but he declined to do so. The matter came up to this Court but without any success and we need not say anything further about Malaram's murder The prosecution examined 11 witnesses to support the case that Teja and Sukhdeva had murdered Mst. Koyali in her 'khuddi' on the night intervening January 31 and February 1, 1967 and the deed was witnessed by Harlal, a boy who was sleeping in that 'khuddi'. The plea of the accused was one of alibi and he examined 2 witnesses in defence. The learned Sessions Judge found that Teja was guilty of murder of Mst. Koyali but the case against Sukhdeva was not proved. He accordingly acquitted Sukhdeva, but convicted Teja by his judgment dated November 20, 1968, and sentenced him as indicated above.

(3.) THE learned Sessions Judge relied upon the recovery of the 'gandasi' on the information and at the instance of the accused Teja. From the evidence of Harlal, P. W. 1, Mst. Moharli, P. W. 2, Debu, P. W. 3, Naurang, P. W. 6, Sarpanch and Mst. Moharli, P. W. 7, it is clear that the 'gandasi' lay by the side of the cot of the deceased Malaram. Each one of these witnesses had seen it lying before the arrival of the police. Can, in these circumstances, the recovery of 'gandasi' be treated as a discovery under S. 27, Evidence Act? Reference in this connection may be made to Sheikhi vs. State of Rajasthan (8) where Hidayatullah J. (as he then was) observed that if the "birchi" was lying by the side of the dead body for any body to see, it cannot be said that a material fact was discovered because of the statement. THEre being no element of concealment and consequent discovery, in our opinion, the learned Sessions Judge was in error in relying upon the discovery of a 'gandasi' as a link between the crime and the apppellent. THEre is another reason which we cannot ignore altogether from our consideration. THE fact that Malaram lay dead, whether the blood-stains on the 'gandasi' related to his murder or Mst. Koyali cannot be determined unless the result of blood grouping and that too of a divergent nature was available. We shall, however, exclude from our consideration the recovery of the 'gandasi' or the blood stains thereon.