MAKUNDA HIRA KORKU Vs. EMPEROR

JUDGEMENT

(1.) NIYOGI and Staples, A.J.Cs. 1. Hira, Makunda, Bhura, Budhu and Sukya were tried in the Court of the Sessions Judge, Nimar, on a charge of murdering Motya Gadaria at Bhamgarh on 18th September 1932. The first four persons were convicted of murder punishable under Section 302, I. P. C., and sentenced to death subject to confirmation by this Court. The last one, Sukya, was convicted of an offence punishable under Section 302 read with Section 114, I. P. C., and sentenced to transportation for life. They have filed separate appeals: this judgment governs the disposal of them all. Hira is the father of Makunda, Bhura and Budhu, and is the uncle of Sukya : they are all Korkus residing at Bhamgarh. On 18th September 1932 at about 8.30 p.m. the dead body of one Motya Gadaria was discovered lying outside the house of one Ramchand. The injuries as reported by the Civil Surgeon Dr. Narbada Prasad who conducted the post mortem examination on 20th September 1932 were : (1) A huge incised wound on the neck below the Adam's apple which cut the neck muscles, the thyroid gland and the wind-pipe completely. (2) A small incised wound on the left chin. (3) Two incised wounds on the back. (4) A linear scratch on the outer side of the left shoulder, apparently caused by a sharp point. (5) An abrasion behind the right elbow. (6) Five incised wounds on the palmar aspect of the right hand. There can be no question that it was the first injury which resulted in the death. The case for the prosecution is that there existed illicit relations between the deceased Motya Gadaria and Nathai, daughter of Makunda accused, and the wife of Munni, son of Hira, who is not in the array of accused. The evidence however shows that the intimacy was stopped more than a year ago. On the evening of the day of the murder Mt. Gendai and Mt. Nathai had gone out to answer a call of nature towards the river Bham. Motya, the deceased, was sitting at a spot known as Bhilatdeo, which seems to be a favourite resort of the village people. Something happened which is obscure between Motya and the women, probably immoral overtures by Motya, with the result that all the accused went out in a body to the place and put him to death.

(2.) THERE is no direct evidence in the case. The prosecution relies upon circumstantial evidence consisting of evidence of immoral connexion of Motya with Nathai and Gendai, the evidence of opportunity for Nathai and Motya to arrange a meeting in the afternoon, the meeting of Motya, Nathai and Gendai at the river, the evidence that the five accused proceeded in a body to the river after dark, that Motya was attacked at the river and pursued up to Ramchand's house where he was killed, that the accused delayed coming out of the house when called by the Kotwar after the murder, blood-stains on the clothes of throe of the accused and the stick of Budhu, the circumstance that Bhura though he returned to the Korku awar left the place even though Budhu's child was ill, the confessional statements made by Budhu and Sukya and production of stick by Budhu. There is considerable evidence to prove the existence of immoral relations between Motya and Gendai and Nathai. It is however evident that the relations had ceased about a year before the occurrence. There is no evidence that Motya ever visited Gendai and Nathai either at their houses or elsewhere during the interval. In fact Nathai had been openly living with one Mangal Nai as his mistress for some days before the incident. Although there is plenty of evidence to show the immoral propensities of Nathai, there is nothing to show that Mt. Gendai was attached to Motya or to anybody else. As regards the movements of Nathai and Gendai, the evidence is obscure. Govinda (P. W. 2) and Ramnarayan (P. W. 10) noticed Nathai alone come from Korku awar and go out to ease herself in the direction of Kahelughat. Motya was sitting at Bhilat Otla but there was no conversation between Nathai and Motya.

(3.) AS to the movements of Motya, the evidence is not quite consistent. Dashrath (P. W. 9) affirms that he saw Motya just about sunset sitting on the Otla of Bhilatdeo. He made over the bullocks to Motya who left the place for his house. Dharma (P. W. 12) also saw Motya sitting on the Otla some time before sunset, and also observed Nathair and Gendai going off in the direction of the river. Ramnarayan (P. W. 10) also noticed Motya at about 5 or 5-30 p. m. before sunset at Bhilat Otla just about the time when Nathai was going out towards the river. Umeda (P. W. 6) Motya's father, deposes that Motya was at his house till it was dark, after which he went out to ease himself taking with him a lota and a stick. He had a dhoti on his person and was wearing shoes. According to Chempia (P. W. 3) Motya was sitting about sunset at the Otla at Bhilatdeo, but some time later he took the witness to his own house to give medicine to his ailing child. It is clear from this evidence that Motya had left the Otla some time after sunset and went home. It was after he came to the river again probably about 8 p. m. that he was subjected to a brutal assault. As to the length of time the two-women Nathai and Gendai were at the river is not known. If Nathai alone had already come to the river once before sunset then it is improbable that she again would come with Gendai after sunset. In any case both the women must have left the place about the time Motya departed from the place.