EMPEROR Vs. DUBAI

JUDGEMENT

(1.) This is a reference under Section 374, Criminal P.C., by the learned Sessions Judge of Singhbhum, dated 11 August 1941, by which he sentenced Dubai Majhi alias Ungu Majhi to death and has submitted the proceedings for the confirmation of this Court. The accused has also preferred an appeal from jail dated 16th August 1941. The appeal and the reference will be disposed of together.

(2.) At about 8 A.M. on 29 July 1940, Hira Santalin aged about 25 resident of village Kapui Police Station Chakradharpur, was killed as a result of serious injuries inflicted on her in a field near that village. The prosecution case is that the appellant was responsible for her death by killing her with an axe resulting in instantaneous death. The motive alleged by the prosecution was that owing to the annoyance felt by the appellant for allowing her land, which she had inherited from her deceased father to be looked after by the brother of the appellant Balkan the appellant was so provoked that he killed her own cousin. The appellant and Salkan Majhi are the sons of Uday Majhi. Hira Santalin was the daughter of Bhogan Majhi an elder brother of Uday Majhi. Information of this occurrence was given to the police station at 5 P.M. by Chandra Mohan in the form of a report by Turi Munda of Kapui that the appellant on; coming from village Inchinda had killed a woman named Hira Santalin of village Kapui by cutting her head into pieces with a tangi. The Sub-Inspector of Police after recording the case immediately set out for the place of occurrence where he reached at 7-30 P.M. But before he left the police station he deputed Babu Ramdeo Narayan Singh, a junior Sub-Inspector to proceed to village. Ichinda to arrest the accused who was said to be residing there. This officer reached village Ichinda promptly at about 5-30 P.M. and was able to arrest the appellant who was found lying on a khatia in the house of his father's sister Salo Santalin. On 1 August 1940, the accused who was forwarded on 30 July 1940, by the Sub-Inspector to have his confession recorded appeared before the Magistrate who after putting questions which will be considered hereafter, satisfied himself that the accused was going to make a voluntary confession. His confession was recorded at about 2-45 P.M. on 1 August 1940. In that confession the accused stated that Salo, his father's sister, Labho and Bhogla told him that Hira Santalin does such and such thing, kill her. Thereupon he says that he went and killed Hira with an axe; this confession was retracted when the case came for trial before the Sessions Judge. On the conclusion of their investigation the police sent up the charge sheet on 9 August 1940. The commitment proceedings were concluded with equally commendable speed on 20 September 1940, but the trial before the Sessions Judge did not begin till 4th August 1941. The trial was held with. the aid of assessors three of whom were of opinion that the accused was not guilty and that it was unsafe to rely upon confession made by the accused before the Magistrate and also because the chemical examiner's report did not show that any human blood was found on the dhoti of the deceased. This is how the opinion was recorded by the learned Sessions Judge. Obviously he meant to say that no human blood was found on, the dhoti of the accused. I should have stated that the axe with which the crime was said to have been committed and the dhoti which was seized by the junior Sub-Inspector from the person of the accused when he was arrested were sent to the chemical examiner for report. The result of the chemical examiner's analysis is that blood was detected in stains on the tangi and on the dhoti but regarding the origin of the blood the report was to the effect that owing to disintegration of the blood stains their origin could not be determined.

(3.) The evidence to prove the occurrence resulting in the death of Hira Santalin consists in the main of the evidence of three eye-witnesses, namely Choto Sona Majhi P.W. 3, Madu Ho, P.W. 4 and Bagan Majhi, P.W. 5. It will be useful to give the substance of the evidence given by Choto Majhi. He states that on a Monday about a year ago at about 8 A.M. while he was repairing the ridge of the field of Duka Majhi, he heard the cry of Hira Oh mother, I am being killed." The cry was coming from a place close to a spring. The witness went towards that side and saw the accused striking Hira with an axe on her head. The witness was then at a distance of 150 yards. In cross-examination he stated that he saw the accused fleeing towards Inchinda village and that he did not see any other person of the neighbouring fields running to the spot although a number of women came to that spring soon afterwards to fetch water. The witness also found a tangi in the field of Bodro where the accused is said to have thrown it after he had attacked Hira. The cross-examination of this witness is short and nothing has been elicited which would lead us to hold that the evidence of this witness should not be believed. The next eyewitness is a boy aged Madu Ho, P.W. 4. His evidence is also to the same effect. He heard a cry when he was taking his buffaloes to his field for yoking them to the plough and he saw the accused giving blows with his axe to the deceased in the field of Labho Majhi. The accused then ran away to his house. The cross- examination of this witness is very short and the only fact elicited was that the witness did not see any one going towards the spring; nor did he see accused bending down at any place near the spring. The last witness is a boy aged eight, Bhagwan Majhi, P.W. 5, who stated that he saw the accused giving blows to Kede, (the deceased was also called Kede in the village) with an axe. He saw the assault from a distance of about 100 yards. The accused then ran away throwing the axe in the field of Bodro. The cross-examination of this witness was recorded in the form of questions and answers. The only questions relevant to the occurrence were whether the witness saw any females collect near the spring, or whether any one else went to that place before the collection of the females and lastly as to the number of blows dealt on the deceased. Having read and considered the evidence of these three witnesses, it is difficult to come-to any other conclusion than that arrived at by the learned Sessions Judge, namely, that these witnesses are competent witnesses whose evidence should be accepted.