BALIA Vs. SARKAR

JUDGEMENT

(1.) These are three connected appeals, NOS. 1.3 of 1949, and all of them will be disposed of by this judgment. Balia, Moolia and Ramla have been convicted and sentenced under Section 302, Penal Code, to rigorous imprisonment for life each for causing the death of Lalia, and under Section 894, Penal Code to 7 years rigorous imprisonment each for robbing him of his money and ornaments. Both the sentences have been made to run concurrently. The three appeals referred to above have been filed by them.

(2.) Lalia deceased, a young man of 94 years of age, was resident of Mirpur in Bind and came to Aimer in search of a match for himself. He was wearing a few silver ornaments and had RS. 500 with him, He knew Balia of Gola in Ajmer Merwara and therefore visited him. Balia brought him to Sumel in Marwar and they stayed with Ramla for 5 or 6 days. Moolia who cultivates a bera in this village also joined them and the deceased is alleged to have eaten 'Makkias' from his field a day before the occurrence. Kamla purchased liquor from the shop of Ghisa on the evening of 9th September 1946 and soon after all of them including the deceased left Sumel for Rawania at about sunset. They passed by the field of P. W. 3, Baldeo and he heard them talking aloud as they were going, Lalia however never reached Rawania, as when they neared Dhed Magri, liquor seems to have got the better of him as he lay down there and fell asleep. It appears the accused were after his money and ornaments and this gave them the opportunity they were looking for, with the result that Moolia caught him by the feet, Bamla by the hands and Balia tied his turban round his throat and strangled him to death. They then relieved him of his money and ornaments and threw the dead body in the 'bali' of Marawara field at the foot of the Magri in about knee deep water, P. W. 8 Abbey Singh, while grazing his cattle, saw the dead body there and informed P. W. 9 Gopal Singh, Kamdar of the Kawania Jagirdar and the latter, after verifying the report given to him, lodged a first information report with the police. Thereafter the Jagirdar who recognised the dead body as that of Lalia, as ho had seen him two or three days back, began the investigation himself. Abbey Singh informed the Jagirdar that he had seen the deceased the previous day eating Makkias in Moolia'a field. Accordingly Moolia was tackled first of all and on coming to know from him that Lalia was the guest of Ramla, the Jagirdar detained both Moolia and Ramla. Ramla hav-ing informed him that the deceased had come to Marwar with Balia, he went to Gola and, through a Mabajan, sent for him on the pretext that he wanted his services for making "Charas". When all the three accused came together in the Kot of the Jagirdar and faced one another, Bamla could not contain himself and is alleged to have confessed his guilt. Thereupon the other two aacused also followed suit and threw themselves at the mercy of the Jagirdar, requesting him to save them. The police arrived in the village on 11th September and took all the three accused in custody. The dead body was sent for post mortern examination on 12th September and P. W. 11 Dr. Sri Nath found the following injuries; 1. External in juries:-- (a) Contusion-bead-left parieto temporal region. 3. Internal injuries.--(a.) Fracture of skull--Ecchymosis below the external injury, Irregular in shape, 2' x 2 1/2' (b) Depressed fracture of the left parieto-temporal bone. Squamosal suture, upper in central portion going inside."

(3.) The cause of death was, in his opinion asphyxia due to strangulation, secondary to coma, because of the fracture of the skull. During the course of the investigation the same day, 3 silver ornaments, namely Kari, Kandora and Sulphi, were recovered at Moolia's instance from under a heap of Makka fodder and a ten rupee cote from his possession. On 15th September 1943, Second Glass Magistrate, Sendra recorded the confessions of Ramla and Moolia and on 17th September 1946 the confession of Balia was recorded by him. Ultimately all the three accused were challaned under Section 302, Penal Code, in the Court of First Class Magistrate, Jetaran and later committed by him to Sessions Court. The accused denied having committed the offence and retracted the confessions as having been made under police torture. Moolia even denied recovery of the ornaments from his possession, though in the Court of the committing Magistrate, he had admitted that they had been recovered from him and stated that they had been given to him by Ramla. The prosecution relied upon (i) the retracted confessions, (ii) the extra-judicial confessions as proved by P. W. 8 Abbey Singh, P. W. 9 Gopal Singh and P. W. 2 Karan Singh, (iii) the statements of P. W. 1 Asia, P. W. 3 Baldeo and P. W. 4, Chhogla showing that deceased was last seen in the company of the accused and (iv) the statements of P. W. 7 Inder Singh, P. W. 18 Bastimal and P. W. 14 Gulabchand in whose presence ornaments were recovered from underneath a heap of Makka fodder in Moolia's field. These ornaments were identified as belonging to the deceased by P. W. l Asia, P. W. 2 Karan Singh, P. W. 4 Chhogla and P. W. 8 Abbey Singh. The accused produced three witnesses in defence in order to prove their alibi but the learned Sessions Judge rejected this evidence as worthless and, relying upon the prosecution evidence, convicted and sentenced the accused both under Sections 302 and 394, Penal Code as mentioned above.