EMPEROR Vs. LALJI RAI

JUDGEMENT

(1.) This is a reference under Section 374, Criminal P.C., by the Additional Sessions Judge of Muzaffarpur, in the matter of one Lalji Rai who has been convicted under Section 302, I.P.C., and sentenced to death. Lalji has appealed against his conviction and sentence and the appeal has also been heard along with this reference.

(2.) Lalji Rai is a resident of the village Rai Kararia which is at a distance of nine miles from the Gobindganj police-station. The deceased who is said to have been killed by the appellant was one Gopal Rai, a brother of the appellant. The appellant has one more brother named Ajodhya Rai who has been examined as prosecution witness 9 in this trial. It appears that these three brothers were living in a house occupying separate sets of rooms with a common courtyard, but they carried on their cultivation jointly even after separation. Last year, in the month of Baisakh, they had grown turmeric which they kept in a ditch; the quantity of the turmeric was measured as fifteen basketfuls. On 14 May 1934, Lalji removed all the turmeric into his room, but later on 21 May 1934 when the appellant Lalji had gone out in a barat party, the other two brothers took away from Lalji's room 10 basketfuls of the turmeric. The appellant returned home on the evening of 23 May and, it is said, that there was a quarrel amongst the three brothers over the turmeric, whereupon, at the instigation of one Jugeswar Pathak, the appellant inflicted a bhala blow on Gopal who died immediately. Ajodhya Rai intervened and tried to snatch away the bhala from the appellant, but only the iron portion of the bhala was separated from the handle, and Ajodhya Rai himself received injuries. Ajodhya Rai and one Daroga Rai then removed Gopal's body to the south-facing room of the house. Thereafter Ajodhya started weeping and there came Raghubir Rai a cousin of the brothers. Having heard about the occurrence and seen the dead body of Gopal Rai, Raghubir Rai proceeded to the thana where he lodged an information before the Assistant Sub-Inspector Lachhmi Narain Pandey at 10-30 a.m. on 24 May 1934. After Raghubir Rai had left for the thana a chaukidar, Dost Mohammad (P.W. 1) reached the house of Gopal and stayed there to guard the dead body and over-hearing some conversation, amongst the villagers who had assembled, of an attempt to dispose of the dead body he sent for two other chaukidars, Mahadeo (P.W. 2) and Jangi (P.W. 3), and leaving them in charge of the dead body, Dost Mohammad himself proceeded towards the thana to inform the police about the talk of causing the disappearance of the dead body. When he was a few miles away from the village he heard that Assistant Sub-Inspector Chatura Prasad was in the neighbourhood. He therefore went to Chatura Prasad and gave him the information which was reduced to writing at 1 a.m. on 24 May 1934. The learned Sessions Judge has treated this information lodged by Dost Mohammad, chaukidar, as the first information report in the case and has excluded the information laid by Raghubir Rai, on the ground that the latter information was given later in point of time. He has no doubt relied on the decisions which lay down that an information given after the investigation has commenced is a statement made to a police officer under Section 161, Criminal P.C., and therefore is not to be used in evidence by the prosecution. I do not think that Raghubir's information need have been excluded on this ground as it was not a statement made to a police officer in the course of investigation but was an independent first information report. The Assistant Sub-Inspector Chatura Prasad then reached the place of occurrence at 2-30 a.m., and taking charge of the dead body started investigation. He examined a number of witnesses and while going over the place of occurrence recovered the iron portion of the bhala (Ex. 4) stained with blood and covered with sand. The iron portion of the bhala was identified by Ajodhya Rai as appertaining to the spear used by Lalji Rai in killing Gopal Rai. The accused Lalji Rai disappeared. At about 5 a.m., the Assistant Sub- Inspector Lachhmi Narain Pandey came to the place of occurrence to whom Chatura Prasad made over charge of the case.

(3.) After holding an inquest Lachhmi Narain Pandey sent the dead body to Motihari for post mortem examination. He took charge of the iron portion of the bhala from Chatura Prasad, and continued investigation till 25 May 1934 when Sub-Inspector N.K. Tewari took charge of the investigation. The Sub-Inspector continued the investigation and recovered five basketfuls of turmeric (Ex. 1) and got a map prepared of the place of occurrence by one Jagdamb Sahay (P.W. 11), and thereafter he made over charge of the case to Sub-Inspector Dhanesh Prasad Varma on 27 May 1934. This Sub-Inspector of Police finding that the eye- witnesses were related to the accused and were interested in him got their statements recorded under Section 164, Criminal P.C., by a Deputy Magistrate, Mr. Qamrul Huda, on 29 May 1934. These witnesses were Gauri Shankar (P.W. 7), son of the deceased, Ajodhya Rai (P.W. 9), brother of the deceased, and Daroga Rai (P.W. 10), a cousin of the deceased. Mt. Darpan (P.W. 8), wife of the deceased, although she came out of her house soon after the occurrence, does not appear to have been an eye-witness of the assault. The accused remained untraced and, therefore, the Sub-Inspector submitted a final report and evidence was recorded under Section 512, Criminal P.C., by another Magistrate, Mr. N.K. Banerji, on 10 August 1934.