HEMRAJ LODHI Vs. RAMCHARAN LODHI

JUDGEMENT

(1.) THE appellant Hemraj Lodhi, and the appellant, Gulbi Lodhi in Criminal Appeal No. 28 of 1934 have been convicted by the Additional Sessions Judge, Balaghat, of murdering one Mt. Adkibai and sentenced to death. Two other persons, Mehra and Nathu who were charged with the appellants in connexion with the same crime Under Section 302, read with Section 34, I.P.C., were acquitted. This judgment will govern both the appeals. The case for the prosecution is as follows: The deceased Mt. Adkibai and one Mt. Parbatibai were the widows of one Pandu, the malguzar of Bhendara. Pandu died in 1922 childless but possessed of considerable property which was inherited by his two widows. Soon after his death Mt. Parbati adopted the appellant Hemraj as a son to her deceased husband. Mt. Adkibai challenged this adoption in the civil Court and ultimately succeeded in getting declaration that it was invalid. This litigation terminated in 1927 and after that there was a partition between, the two widows and each managed her own half of the estate independently of the other. In spite of his adoption having been declared invalid the appellant Hemraj continued to live mostly in the-house of Mt. Parbatibai.

(2.) IN 1932 Mt. Parbatibai executed a sale-deed in respect of her half share of the estate to her cousin's son one Lachhmansing (P.W. 16), but on the-objection of Mt. Adkibai Lachhmansing got the mutation proceedings dismissed for default. In short the relations between Mt. Adkibai and Mt. Parbatibai were so much embittered that they would not only not visit each other but did not tolerate each other's visitors. It is argued for the prosecution that Hemraj shared the feelings of Mt. Parbatibai towards her co-widow and designed to get rid of her by foul means and that accordingly on the evening of 10th August 1933 with the help of the other accused he murdered Mt. Adkibai at point 1 in the map (Ex. P-20), while she was returning from a call of nature. It was alleged that the appellant Gulbi first of all attacked her with a Pharsa and ultimately Hemraj shot her dead with a gun while the two other accused, who have been acquitted, were present on the scene. It was alleged that Mithu (P.W. 5) and Dbaddu (P.W. 6) who lived in the vicinity of point 1 hearing the cries of Mt. Adkibaf-reached the scene of the murder soon after the murderous assault; that Dhaddu grappled with the appellant Gulbi and in the struggle received some injuries but. that in spite of this intervention the appellants succeeded in killing Mt. Adkibai and ran away, certain witnesses saw the alleged murderers running away from the scene of the murder.

(3.) AS against the appellants the learned Judge accepted the evidence of the two eye-witnesses, Mithu (P.W. 5) and Dhaddu(P.W. 6), and holding that the letter (Ex. P-14) was written by the appellant Hemraj showing that he had a design upon the life of Mt. Adkibai found them guilty of mrdering Mt. Adkibai and sentenced them to death. It was first argued for the appellants that beyond establishing that the feelings between the two co-widows were very much embittered, the evidence for the prosecution fell very short of proving definitely that the appellant Hemraj had any motive for the present murder, the fact that Mr. Adkibai was murdered was not disputed before us. The civil litigation which dislodged the appellant Hemraj from the position of an adopted son admittedly terminated in 1927. If the motive for the murder was revenge it seems highly improbable that the feeling of revenge on this account should have been nursed by the appellant Hemraj for nearly six years before carrying them into effect. The fact that Mt. Parbatibai purported to sell away her share of the estate to Lachhmansing, who is admittedly married to the sister of the wife of the appellant Hemraj, furnishes no motive to the latter of taking the life of Mt. Adkibai. There is nothing on the record to suggest that the attempted transfer by Mt, Parbatibai to Lachhmansing was benami for the appellant Hemraj. Nor is there any evidence to show besides the statements contained in (Ex. P-14) that the appellant Hemraj shared the feelings of Mt. Parbatibai towards Mt. Adkibai. But in our opinion the contention that the authorship of the letter (Ex. P-14) is not legally brought home to the appellant is well founded. Ratansing, P.W. 19, is the only witness examined by the prosecution to prove the letter in question. The following is the statement of the witness on the point: I have seen accused Hemraj write occassionally. I will be able to identify his handwriting a little. The contents of this Chithi, Ex. P-14, are in Hemraj's handwriting. I identify that handwriting to be that of accused Hemraj. I have no writing of Hemraj with me. I have no correspondence with him. From a single letter I would not be able to identify the handwriting of any person. I was not particularly friendly with Hemraj.