UNDRIA DHIWAR Vs. EMPEROR

JUDGEMENT

(1.) MOHIUDDIN , A.J.C. 1. The appellants Undria and Mahangia have been convicted Under Section 302, I.P.C. for committing the murder of Kishorilal on 13th September 1928, and have been sentenced to transportation for life by the Sessions Judge, Bhandara. This judgment will govern both, the appeals.

(2.) THE facts of the case have been stated' at length in the judgment of the learned Sessions Judge and, therefore, need not be repeated in this judgment. The appellants did not make any statements in the Court of the Committing Magistrate, and were not prepared to make statements, on 7th November 1928, in the Court of Sessions Judge, and made statements on 8th November 1928. Undria stated that he was working near the tree, on which the deceased was sitting and that the deceased did not permit the men who were working there to go home to take their meals and, therefore, they became-angry and attacked the deceased. He admitted that he was not on bad terms, with any of the prosecution witnesses and suggested that they mentioned his name because he was there Mahangia stated that the deceased did hot allow the men to go home and beat some of them with a branch of the tamarind tree, that the deceased went to the place where he and Undria were working and abusing them, asked them to carry on the work, that the deceased fell down as his shoe got entangled in the branches of the tree and the people assaulted and beat the deceased at the instigation of Kara and Kushan. He suggested that perhaps Kodya, Jairam and Jhingrya had killed Kishorilal, but could not assign any reason why the prosecution witnesses named him as the assailant and admitted that there was no enmity between him and the prosecution witnesses. The appellants thus admit their presence at the place where Kishorilal was assaulted, they give different versions of the marpit, and cannot give any satisfactory explanation as to why the prosecution witnesses, 11 in number, who witnessed the assault, implicate them as the assailants.

(3.) THE deceased had two cuts and two incised wounds on the head and these have been shown in the diagram sent with the post-mortem report. Assistant Medical Officer Ramohandra (P.W. 2l) opined that injury 1 must have been caused by a weapon like kudali and injury 2 by a phaoda or other instrument which would create a broad mark and in-juries 3 and 4 by a phaoda, and that injuries 1 and 2 had entered the brain substance and were dangerous to life. On seeing Articles C and D, he stated that injury 1 could not be caused by Articles C and D, that injury 2 could be caused by either of the instruments, and that injuries 3 and 4 could be caused by Article D and only by Article C. In view of the above evidence, the learned pleader for the appellant Undria argued that Undria could not be held responsible for injury 1, as it could not be caused by the kudali Article 0, which was said to be in his hand at the time of the assault. This kudali Article C was seized by the police on 19th September 1928, that is, six days after the murder. There is no doubt as pointed out by the learned Sessions Judge in para. 8 of his judgment, that Undria had a kudali in his hand on 13th September 1928 and it is likely that the kudali Article C which was seized six days after the murder, is not the kudali which Undria had at the time of the assault.