SHIVABHAI BECHARBHAI Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Shivabhai, has been convicted by the Sessions Judge of Kaira of murder under Section 302, Indian Penal Code, and abduction in order to murder under Section 364, Indian Penal Code. He has been sentenced for the first offence to transportation for life, and for the second to seven years rigorous imprisonment, the two sentences to run concurrently. The Judge concurred with three out of the four assessors in convicting him. The alleged murder was of one Maran, a patidar, living in Mahommadpura, a village about one mile from the Railway Station of Boriavi. He lived with his mother, Bai Lala, his wife, and two little sons, and was about twenty-five years old. The prosecution case is that, early on the morning of October 10 last, the accused Shivabhai, who is also a patidar, living in the same village, went to Naran's house and inquired whether he was ready to go. Naran said that he would shortly come, and after taking his meal went to Boriavi Station. The accused was already there, and both are alleged to have travelled by the same train, which left Boriavi at about 8 A.M. to Thasra Station, and from there to have gone to Dabhali, a neighbouring village, where the appellant and his brothers cultivated certain lands. The appellant, with the aid of two of his brothers, is said to have murdered Naran, on October 10, 1925, at a place about four fields off their lands, just outside the limits of Dabhali. At that spot some human remains were found, which are testified to have been those of an adult male, aged between twenty-five and forty, and which the prosecution assert were those of Naran. There were marks of violence on some of the bones, and human blood was also found on a bead-necklace (part of the remains) and on the ground. Naran never returned to his village; his disappearance was notified in the Police Gazette; and various other steps taken to trace him, but (apart from the finding of these remains) unsuccessfully. His mother, Bai Lala, had become suspicious owing to Naran's nonreturn, especially upon receipt of a post card on October 12, which she showed to various people in the village, who pronounced it not to be in Naran's handwriting. On October 20, 1925, she made a petition to the Sub-Inspector, who happened to be there on circuit, complaining about Naran's disappearance, and mentioned her suspicion against the accused Shivabhai. Inquiries were forthwith made, with the eventual result that the appellant and one of his brothers by name Bhulabhai were committed for trial on charges under Secs.302 and 364, Indian Penal Code. Another brother by name Nagar, who was also implicated in the Police inquiry, is said to have absconded. Bhulabhai (who was accused No. 1) has been acquitted, while the appellant (who was accused No, 2) was convicted and sentenced, as already stated.

(2.) The main contentions of the appellant's Counsel are, firstly, that it is not established that Naran was murdered, and that there is no sufficient identification of the remains found near Dabhali so as to prove them to be Naran s, Secondly, it is contended that the evidence as to accused No. 2 leaving Mahommadpura with Naran and both going together to Dabhali is false. Thirdly, it is contended that, in any case, the evidence adduced is insufficient to establish the offences alleged against the appellant, and that there is a reasonable doubt, the benefit of which should be given to him.

(3.) The question which, I think, should first be determined is, whether or not the evidence as to Naran being in the company of accused No. 2 on October 10, should be accepted, for that question also affects the, issue as to identity of the remains. After discussing the evidence his Lordship came to the conclusion that there can be no reasonable doubt that Naran was murdered and that that his death was due to violence, and proceeded:-]