EMPEROR Vs. SADASIBO MAJHI

JUDGEMENT

(1.) The Agency Sessions Judge of Koraput has made this reference for confirmation of the sentences of death passed on Sadasibo Majhi and on Jalla Dhonorjoy Domb under Section 302, I.P.C., for the murder of Sunamani Dondasena, a widow aged about 60, resident in village Jodapalli, a hamlet of Dungiaputthi. The murder is said to have taken place on the night of 8th November 1937, in the course of a dacoity committed by the two prisoners above- named and Orjuno Challan, Akutia Gudia and Gusang Soma at the house of Sunamani Bewa. It was the pro, secution case that this old woman was of substantial means and that in the dacoity considerable sums in cash as well as numerous gold ornaments including properties of the lady herself and articles deposited with her by way of pledge or pawn were stolen by the dacoits and that some of the stolen properties were recovered from the possession of the five persons I have named and also from Chanda Loichan and Kepai Ghasi who are said to have received such articles from the dacoits knowing them to be stolen property.

(2.) On these facts the Stationary Sub-Magistrate of Jaypur committed for trial at the Court of Session these seven persons, namely Sadasibo Majhi (accused 1), Orjuno Challan (accused 2), Akutia Gudia (accused 3), Jalla Dhanurjoy Domb (accused 4), Gusang Soma (accused 5), Chanda Loichan (accused 6) and Kepai Ghasi (accused 7). Against the first five he framed charges under Secs.449, 396 and 302, I.P.C. Against the sixth and seventh the charge framed was under Section 414. The fourth accused was also charged under Section 75, I.P.C., as being liable to enhanced punishment by reason of previous convictions. When the case came before the Sessions Judge, he framed a new charge under Secs.302 and 34, I.P.C., and proceeded to try accused 1 to 5 on this charge. He excluded from the trial the charge against accused 6 and 7 reserving their case for a separate trial. As regards the charges under Secs.449 and 396 against accused 1 to 5, he appears neither to have cancelled these charges nor to have taken up the trial of them. The Sessions Judge ought to have recorded some order in respect of these charges and should not have left them in the air. He has given no reason for not trying them; and he was not competent (under Section 215) to quash the commitment, though he could (under Section 240) stay the trial of some charges or allow them to be withdrawn on conviction being had on the murder charge: in that case the consequences set forth in Section 240 would follow in the event of the conviction being set aside.

(3.) If his intention was to withdraw the charges, I would consider it, in the words of Fazl Ali J. in Kunja Subudhi V/s. Emperor A.I.R. (1229) Pat. 275 "premature" to do so "before there was time to judge what value could be properly attached to the confession and which part of it was liable to be rejected and which part of it had been sufficiently corroborated." "The rule of caution" (it was there said) is that it is better to have too many charges than too few and once a charge has been framed, it should not be dropped until the conclusion of the trial unless on the face of it, it is wholly inappropriate or the trial is open to attack on the ground of misjoinder or multifariousness of charges.