DIKSON MALI Vs. EMPEROR

JUDGEMENT

(1.) This is a jail appeal by three persons who have been convicted by the learned Agency Sessions Judge of Koraput by his order dated 2 April, 1941, for an offence under Section 302, Indian Penal Code, and sentenced to transportation for life. The case of the prosecution is that on 30 December 1940, the three appellants jointly beat to death the deceased Buda Mali under a mohua tree in village Motigam. The appellants are men of different castes residing in that village. It has been amply established by the evidence that the appellant Dikson Mali had a quarrel with the deceased because the latter [sic] suspected him of illicit intercourse with his wife Naik Buda. It is enough to refer to the evidence of Urdhab Mali, the father-in-law of the appellant, who states that in the last Dasahra his daughter came to his house and complained that the appellant was ill-treating her because he suspected her of being too friendly with Buda Mali. There upon the witness went to Motigam where the appellant resides and called a panchayat at the house of the Gauntia. The panchas assembled, sent for Dikson and Buda and warned Buda not to go to Dikson's house and told Dikson not to chastise his wife any more. This evidence is supported by the evidence of the Gauntia himself P.W. 12, as well as by the evidence of Ghansi Ganda, P.W. 3, who is the Ganda of the village. The prosecution has further adduced some evidence to establish that notwithstanding the panchayat the deceased did not give up his attentions to Naik Buda. For instance P.W. 7 relates to an incident which happen, ed on Wednesday previous to the date of occurrence in these words: I heard of Buda's death on Tuesday. The previous Wednesday I went to Mohana Shandy. On my return home I saw Dikson and Buda in the path. They were quarrelling and I heard Dikson say "Take care you are having illicit intrigue with my wife. I shall see what I can do. I interfered and took Buda Mali with me towards my village. Dikson went off.

(2.) P.W. 4, Bara Mali, stated that he knew that Buda used to go to Dikson's house now and then, that Dikson accused Buda of illicit intimacy with his wife and told him not to come to his house and that he reprimanded his wife for her intimacy with Buda?the evidence is not clear as to the time about ? which the witness is speaking.

(3.) Early in the morning of Tuesday 31 December 1940, Butia Mali aged about ten went to his nigar field to watch the crop, but on the way he found his father, the deceased lying dead underneath a mohua tree, with injuries on the head, lobe of the ear and right side of the face. Upon an outcry raised by him Jogu Mali and another who were in the field close-by came running up. The boy later related the incident to Ghari Ganda and the Gauntia and was sent to the Police Station Jorigam which is 27 miles away from his village Motigam, and tfiere he lodged the first information at 8 P.M. In that information he stated that on the previous night while he was cooking his food after the lamps were lit and the deceased was lying on a cot one person came and called his father to follow him with the adda (measure) to purchase kachya paddy; upon hearing this the deceased went away holding the adda and a stick and never returned alive. The boy suspected that the persons of Jhikarpada to whom the deceased had advanced loans may have come and taken his father with them upon the pretext that they would give him paddy. The Sub-Inspector reached the scene of occurrence on 1 January, at 3 P.M. He says that upon the information received from Chota Mali (P.W. No. 8) he sent for the appellant Ransai Lohara and learnt from him about certain weapons which will be found in the house of the three appellants. Accordingly on a search being made a heavy stick was recovered from the house of the appellant, Dikson Mali. The appellant Ransai Lohara was taken in custody on 2 January, 1941. The Sub- Inspector further states that all three accused took him to a river and on their information a ibag containing rupees was recovered from a bush there--the bag was recovered by accused 2 and was found to contain Rs. 5-6-6. Thereupon it is stated that all the accused persons again took the Sub-Inspector to the house of one Majid Khan and from under the eaves of that house the appellant Ransai Lohara took out from a pot a red bordered cloth. It is suggested by the prosecution that the net bag contained Rupees 10 and was on the person of the deceased when he left the house on the fatal night and also that the red bordered cloth was wrapped round the waist of the deceased when he was done to death under the mohua tree. It may be stated that as the result of a search a hammer was produced by Ransai Lohara and a pen-knife was produced by Chhoti Bairagi from their respective houses.