ALI MEA Vs. KING-EMPEROR

JUDGEMENT

(1.) This is a reference under Section 307 by the Sessions Judge of Noakhali disagreeing with the unanimous verdict of the jury who found the accused Ali Mia not guilty of an offence under Section 304, Indian Penal Code. There is no dispute about the facts of the case. The only question is whether the accused has on the facts found and admitted, committed any offence, and if so, what.

(2.) The accused is charged with causing the death of a boy of 15 or 16 years of age named Makbul. The boy Was the accused's distant nephew. The prosecution case, which is not challenged by the defence, is that the boy lived with his own uncle Abdul Majid in a separate house, not far off from that of the accused. On the night of the occurrence Abdul Majid returned home from a hut and found that the boy had already taken his meal and gone out. Abdul Majid went to bed at 10 p.m. About midnight he was roused by the witness Khursed and went to the accused's hut where he found the accused holding Makbul in his arms and weeping. The accused told him that he had cut Makbul not knowing him but taking to be a thief. On being questioned the boy said that while he was going to enter into the hut after opening the door he was cut by his uncle, the accused. The most important witness, the only eye-witness to a part of the occurrence is Witness No. 5, Shona Mea. He says that he was sleeping when at about midnight he heard cries of the accused: "Khai lo re, Khai lo re", which means I am being finished. On going, there he saw that on the step of the hut of the accused he was brandishing a dao and the deceased was opposing with his hands. As he went there with a light the accused had recognized the deceased and then took him to his arms weeping and saying: "I have killed my tame bird" The accused threw down the dao, took Makbul into his lap and sat down. To him and all other witnesses who subsequently gathered there the accused said that he cut the deceased by mistake thinking him to be a thief. The witness further says that on some occasions before the occurrence thieves had entered into the bari which is the common bari of the witness and the accused, and 10 or 15 days before the occurrence a plough belonging to the accused was stolen.

(3.) The evidence is that the night was dark and it was raining, and the deceased at about midnight opened the door of the hut of the accused and was about to enter when he was cut by the accused. The witness Shona Mea further says that he asked the deceased and he told him that he was going into the hut of the accused after opening the door when he was struck by him with the dao. He asked the deceased if he had called anybody before he tried to enter and he said "No." The accused had all along admitted that he cut the deceased by mistake thinking him to be a thief as there had been several cases of theft in his house. An attempt was made to record the dying declaration of the deceased, but he could not say more than pointing out the accused when he was asked as to who gave him the cut. The evidence further is that blood marks were found outside the room on and about the step which appears to be a narrow ledge under a low thatch.