MUKUNDA MURARI PAL Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Mukunda Murari Pal alias Jatindra Pal alias Harendra Chandra De who has been convicted Under Section 393 read with Section 398 and Section 75, I. P. C and also under Section 302 read with Section 114, I. P. C. He was sentenced under the first section to transportation for life and under the second section sentenced to death. There is a reference by the learned Sessions Judge for confirmation of the sentence of death. The facts in short are that about 2 to 3 a.m. on 1 May 1931 two men armed with guns entered into the shop of Sita Nath Sil at Bahadurabad and put the inmates into fear of instant hurt and demanded the keys. Some of the inmates managed to escape, others were put to terror. About this time many villagers came up and wanted to know what was the matter whereupon one of the intruders opened the door and threatened the villagers. The intruders fired two shots and got out of the room and proceeded to go away. The villagers pursued them at a distance. The offenders continued to fire at them. At a certain place in the pursuit one of the pursuers, Astha Lal Mali, came very near the two men and shouted, whereupon one of the two, not the present accused, shot and killed Astha Lal Mali. The villagers, however, continued to pursue the men who continued to fire shots. One of the shots struck and caused slight injury to witness Salim. After a long pursuit the two men at last ceased firing and the villagers concluded that their ammunition was exhausted. Then the villagers beat them down, captured them together with two guns and brought them back to Bahadurabad where they were kept in the local zamindar's cutchery. A chowkidar went to the Thana and the police arrived in the morning and took charge of the two captives and the two guns.

(2.) The two men took the police to a certain boat where a dog prevented the police party from entering. The present accused caught the dog and tied it and thereafter the boat was searched and the present accused produced a bag containing gold, silver and coins from the sand near the boat. The two men were duly sent up and were committed to the Court of Session. While the trial was pending one of the men, Ismail, died in prison. It appears that the present accused who was allowed bail absconded from bail by reason of which the trial was not held till more than two years after the occurrence. The learned advocate for the appellant has read the whole of the evidence before us. It is urged that many of the witnesses who were said to have seen the occurrence have not been examined. It appears that there were 5 men inside the shop when the offenders entered. Of them three men were examined in the Sessions Court and two men were tendered for cross-examination. Of the pursuers, who amounted to a large number, a good many have been examined in the Sessions Court. There is, in our opinion, no prejudice caused to the accused because all the pursuers were not examined. The two guns which were found in the possession of the two offenders were proved by evidence to have been stolen shortly before the occurrence. It is urged that a certain bullet was found on the body of the deceased, but the bullet was not produced in the Sessions Court and further that no expert was examined to show that the guns had been recently fired, We are of opinion that these omissions have not cast any doubt upon the prosecution story. Upon the whole of the evidence it is clear that the jury had sufficient materials in finding the present accused guilty Under Section 393 read with Section 398 and Section 75, I. P. C.

(3.) It is urged that the conviction Under Section 302 read with Section 114 is wrong in law inasmuch as there is no evidence that the present accused abetted his companion Ismail to shoot and kill Astha Lal Mali. The charge of the learned Sessions Judge on this point has been read and commented upon before us. There is no doubt on the evidence that the accused's companion Ismail deliberately shot and killed Astha Lal Mali and thereby committed an offence of murder punishable Under Section 302, I. P. C. The question is whether in the circumstances it can be said that the accused abetted his companion in committing the murder. Under Section 107, I. P. C , a person abets the doing of a thing who: (1) instigates any person to do that thing; (2) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (3) intentionally aids, by any act or illegal omission, the doing of that thing.