MALLU MARHETA Vs. EMPEROR

JUDGEMENT

(1.) 1. This appeal and Criminal Appeals Nos. 248 (Bhaya v. Emperor), 253 (Chitrya v. Emperor) and 254 (Jogya v. Emperor) of 1932 have been heard together and this judgment will govern all. The four appellants wore tried by the Sessions Judge, Hoshangabad, on charges framed under Section 302, I. P. C., for causing the death of one Bondrya Mahara on 8th August last and all were found guilty under that section. Two of them, Mallu and Bhaya, were sentenced to death, whilst the other two, Chitrya and Jogya, were sentenced to transportation for life. They have now all appealed to this Court. The offence was committed at a village Gunkheda in the Bhainsdehi tahsil of the Betul District on the morning of 8th August 1932. The murdered man Bondrya was a cloth, seller, or pedlar, about 40 years of age, who lived at Barwi in the Betul District and used to go about selling cloth in different villages on a pony. On the Nagpanchami day, which was the 7th August 1932, he came to Gunkheda and went to the house of one Sheoji, who is a caste-fellow and also a cloth seller. Apparently he had come from the direction of Bhainsdehi with Sheoji's father Tukdya. He was doubtful about returning home that evening as he was afraid that the river Tapti might be in flood and also he was pressed by Sheoji to stay, it being a festival day, and he was invited to dine with them. Accordingly Bondrya stayed the night, but he got his pony and his bundles of cloth and went away in the morning. On Tuesday the 9th his dead body was found lying in a field belonging to Raghunath, the malguzar of Jawara, in a nalla by one Sonya kotwar of that village. Sonya informed Raghunath and he too came and saw the body and then sent Sonya to report the matter to the police. A report was made at the Atner station-house, which is at a distance of about 4 miles, that evening. The Sub-Inspector in charge of the station-house was absent, having gone to Betul to give evidence in a criminal case.

(2.) THE Moharir Ram Sakha, who was in charge of the station-house at the time, wrote down the report and went to the village. He reached there in the night at about 10 p. m. and had the body taken out of the nalla, and guarded for the night. The next day an inquest was held and the body was sent for post mortem examination to Bhainsdehi. Unfortunately the body was in an advanced stage of decomposition and therefore the post mortem is not of as much, value as it would have been otherwise. The Assistant Medical Officer, however, who performed the examination, found four injuries on the head, of which one, he has deposed, was a clean out, measuring some 3 inches, on the frontal bone, and another was a simple fracture of the right parietal bone. The doctor has given his opinion that death was probably due to the extensive injury to the skull. The Sub-Inspector Pir Mahomed Khan heard of the offence on 10th August at Betul and reached Jawara on the 11th in the evening. Abbas Beg, the head-constable, had already gone there. The Sub-Inspector continued the investigation, and on the 13th he arrested Wati, Chitrya and Bhaya. Babu was arrested the next day, whilst. Jogya and Mallu were arrested at about 5 p. m. on the 14th. It appears that the two boys, Wati and Babu, admitted knowledge of the offence from the first, and in the challan, which was put up in Court on 16th August, their names are shown not only as accused persons but also as witnesses for the prosecution. After this Wati was tendered a pardon on the 18th and Babu was tendered a pardon on the 19th under Section 337, Criminal P. C. They both accepted pardon and were examined as witnesses for the prosecution before the committing Magistrate and have again been examined, Wati as P. W. 1 and Babu as P. W. 4, before the Sessions Judge.

(3.) WHEN Bondrya came on his horse Bhaya caught the bridle and asked why he had abused him that day and then Mallu pulled him down from the horse. Bhaya, Jogya and Mallu dragged him to the nalla and Bhaya taking a knife from Mallu cut his throat. After this Mallu snatched the knife and stabbed Bondrya in the stomach. They than made signs to the two boys to come down from the hill and all of them went to the pony. 'They book the bundles, which were in baskets on the pony. Then Chitrya discovered that Bondrya was not yet dead and was sitting up. Upon this Mallu took a parani, or goad, which was in Wati's hands, and while Chitrya held Bondrya's head on the ground Mallu gave several strokes or thrusts on his head with the parani. Mallu then threw the parani away in a sugarcane field and went back to the bundles of cloth. The bundles were opened and in one some bread and rupees were found. In the other there were dhotis and other clothes. At this time however a man was seen coming from a field and they hid the bundles under a tree and ran away. While they ran away a knife, which was with Jogya, fell on the ground. They washed their hands and feet and Mallu washed his knife and after that they parted company, but all came back to Mallu's house by different routes. Wati and Chitrya appear to have gone together and Bhaya and Mallu. Later Babu was sent to Kolgaon by Mallu to his sister with food or sweets for the Nagpanchami day.