Jhiktu Bhogata vs Emperor

Varma, J.—This is an appeal on behalf of one Jhiktu Bhogta who has been convicted u/s 302, Penal Code, and sentenced to transportation for life for having murdered one Bido Bhogta, who was his uncle by relationship aged 38 years.

The occurrence is said to have taken place on 31st October 1940. The village where the occurrence took place is known as Gosain Kona, Police Station Baidih, District Banohi. The exact time of the occurrence has not been described by the witnesses, but it was near about sunset. The case for the prosecution is that on that day which happened to be a Diwali day the accused and his mother Jhalo Bhogtain (P.W. 12), his aunt Malti (P.W. 7) and his cousin (mother''s sister''s son) Bisa (P.W. 6) and his grandmother Mt. Sukwaro (P.W. 10) were drinking handia at the house of the accused when Bido Bhogta turned up and started taking him to task for not working properly. He also abused him and slapped him. The appellant ran out of the house but Bido chased him. They went to Bido''s courtyard struggling. There some of the people who were in the house of the accused intervened and separated Bido from the accused; after which the accused ran back to his house which is at a distance of 22J yards from where the deceased Bido was, brought a balua and gave a balua blow on the head of Bido Bhogta with the result that Bido fell down. The accused threw away the balua and fled away. Several witnesses saw this occurrence. The first information was lodged by Bamnu Bhogta at 10 A.M. on 1st November 1940. The distance between the place of occurrence and the Police Station is 9 miles. On reaching the Police Station it was found that the Sub-Inspector was not present and the Assistant Sub Inspector was seriously ill. But they met a constable Masih Das Hunda (P.W. 5) who after directing Bamnu to go to the Sub-Inspector proceeded to the place of occurrence. This witness reached the place of occurrence the next day at about 7-30 A.M. He saw the dead body lying in the court-yard and several people watching the dead body and he also found the accused Jhiktu Bhogta there. He arrested him then and there. The Sub-Inspector reached the place at about 2-80 P.M. The Sub-Inspector held an inquest over the dead body and prepared the inquest report which is Ex. 4. He took charge of the accused, prepared sketch map of the locality, scrapped blood stained earth from the place of occurrence and examined some witnesses. The post-mortem on the dead body was held at 8 A.M. on 2nd November 1940. The doctor describes the following injuries upon the deceased. One incised wound 5" x �" x brain deep on the left side of the head above the temple cutting the skull bone about 2" in length transversely. The temporal bone on the left side was separate, the base of the membrane was cut about 2" in length on the parieto temporal region left side. The brain was found red and congested, copious blood was found in the reanial cavity and the lungs, liver and kidneys were found congested. The injury according to the doctor was caused by a sharpe cutting weapon and he was of opinion that the injury could have been caused by a balua. He was also of opinion that the injury could have been caused by the balua which was shown to him meaning thereby material Ex. 1.

The defence of the accused can be gathered from his statement before the Committing Magistrate and before the Court of Session. His statement was that the village people killed Bido Bhogta and implicated him falsely, he himself being intoxicated and sleeping. He denied the ownership of the balua. Although he made a confession before the Magistrate he stated he made the confession on account of fear of the Sub-Inspector. He had enmity with the village people. He said that as he found Basant Bhogta''s pony grazing his paddy, he drove it out of the field. In the Court of Session his statement was read out. He admitted that he made the statement before the Committing Magistrate, but with regard to the confession he said that he had not made the confession. He denies any knowledge as to how Bido Bhogta was murdered and alleged that the Sub-Inspector and the chaukidar had beaten him. When asked as to why his mother was deposing in the case, his explanation was that she had been forced to give her evidence in this case.

A large number of witnesses were produced before the trial Court, Bokhi Bhogtain (P.W. 9), Sukwaro Bhogtain (P.W. 10), Sukhal Bhogta (P.W. 11), Udai Bhogta (P.W. 13) and Kano Bhogta (P.W. 14) were tendered. P.W. 2 is the Sub-Deputy Magistrate who recorded the confession of the accused. He speaks of the warning that he gave to the accused and he was satisfied that there was no police constable present when the confession was being recorded. He in fact proved the confession, P.W. 5 is the constable Masih Das Munda about whom I have already said that he arrested the accused. P.W. 15 is the Sub-Inspector of Police and P.W. 16 is another Sub-Inspector. The remaining witnesses who have been examined in this case can be divided into two groups. The witnesses who were in the courtyard at the time of the occurrence are: P.W. 6 Bisa Bhogta who is the son of Lalo Bhogtain a sister of Jhalo Bhogtain (P.W. 12). Malti Bhogtain is P.W. 7, she is also a sister of Jhalo Bhogtain. Luiya Bhogta is P.W. 8. His relationship I shall explain presently when giving the relationship of the various prosecution witnesses and P.W. 12 Jhalo Bhogtain the mother of the accused. Then there are three witnesses who saw the occurrence from the road outside the courtyard and these are P.W. 1, Ramu Bhogta, P.W. 3, Jitu Uraon and P.W. 4 Masat Bhogta. The relationship of the various witnesses is as follows. There were two brothers Makhan Bhogta and Mohar Bhogta. Makhan had a son Madra Bhogta who had four sons : Gusal Bhogta whose son Luiya Bhogta is P.W. 8; Masat Bhogta P.W. 4; Bahira Bhogta deceased and Lodra Bhogta but he is not a witness. Mohar Bhogta has two sons Baran Bhogta and Siba Bhogta. Baran had three sons: Thaya Bhogta whose wife is Jhalo P.W. 12; Bamu Bhogta, P.W. 1 and Bido Bhogta, the deceased whose wife is Bokhi Bhogtain, P.W. 9. Thaya''s son is the present accused. There is another son of Thaya named Gola Bhogta, who is not a witness. Sibo Bhogta had three sons: Kano Bhogta P.W. 14, Bano Bhogta and Tehri Bhogta who are not witnesses. The woman witnesses are related through the mother of the accused. Sukwaro Bhogtain P.W. 10 is the wife J of Karan Bhogta who had three daughters; Malti, Jhalo and Lalo. Malti is P.W. 7 and Jhalo P.W. 12 but Lalo (mother of P.W. 6) has not been examined. (His Lordship reviewed the evidence and continued.) Then we come to the confession. Mr. Sanyal has tried to show that this confession should not be acted upon because the Magistrate who recorded it did not put a sufficient number of question in order to find out whether the confession was being made voluntarily or not. Apart from the findings that the learned Sessions Judge has given we find from the record of the confession the following questions and answers:

Q.--I am a Magistrate. The statement that you will make before me will be taken in evidence against you and you may be convicted thereon. You are not bound to make any statement. Do you understand? If you want to make any statement voluntarily you may make it.

A. -- I am making a true statement voluntarily. Please take it down.

The accused then gives the statement in which he says how the deceased came to his house and began to beat him; he ran away, he was caught and again beaten and then he managed to escape. He further says "I brought my balua from my home and struck Bido. Bido fell down and died. I left the balua there and came back to my house." When we have got the statement of the accused in answer to the question put by the Magistrate that the statement was being made voluntarily by the accused, I am of opinion that it was not necessary to put any further question.

Mr. Sanyal argues that because the confession has been retracted, it should be held that it is not of much evidentiary value. In the case of a retracted confession the Courts have always exercised a certain amount of caution in accepting it unless it is corroborated by reliable evidence. In the present case the description of the weapon used, the injury caused to the deceased and the statement of the other witnesses upon whom reliance can be placed amply corroborate the confession made by the accused. On the evidence there is no doubt in my mind that it was the accused who gave the blow to Bido as a result of which Bido expired.

The next question that has been argued is that as it has been shown that the accused was drinking and that there Was a quarrel, the case should more properly come within the mischief of Section 304 and not u/s 302, Penal Code. The evidence which I have been discussing above shows that at first the accused was dragged by his uncle Bido to the courtyard of Bido. There he was separated by the intervention of some of the witnesses and then he went back to his house, brought a balua and suddenly attacked Bido. Considering the weapon used and the force with which it was used and the nature of the injury which was caused, I have no doubt that it is a case which comes within the mischief of Section 302. Then we have to consider the question how far the fact that the accused was drunk can minimise the nature of the offence. This point came up for consideration before this Bench in Dilmohammad @ Muslim Sheikh Vs. Emperor, , which was decided on 8th December 1941, where reference was made to the cases in In re Mandru Gadaba AIR 1916 Mad. 489 and Manindra Lal Das Vs. Emperor, . It was held Section 86 deals with cases where an act done is not an offence unless done with a particular knowledge or intent, and we may notice that there may be cases in which a particular knowledge is an ingredient, and there may be other cases in which a particular intent is an ingredient, the two are not necessarily always identical. The section says that "a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated."

It is noticeable that the section does not say that he shall be liable to be dealt with as if he had the same intention as might have been presumed if he bad not been intoxicated. In the present case our attention has been drawn to some other cases; the earliest of which is a case in Queen v. Dasser Bhooyan 8 W.R.C. 71. The headnote runs as follows:

Two parties met each other in a drunken state and commenced a quarrel, during which they became grossly abusive to each other. This lasted for about half an hour, when one of them ran to his own house, distant 30 yards from the spot, and came back with a heavy pestle, with which he struck the other a violent blow on the left temple as the latter was rising, or had just risen, from the ground, causing instant death.

It was held that the act was done with the intention of causing such bodily injury as was likely to cause death, and also with the knowledge that such act was likely to cause death, and that the offence committed was murder within the provisions of Clauses (2) and (3) of Section 300, Penal Code. I need not refer to the other cases to which our attention has been drawn where a similar view was expressed. That being the position I am of opinion that the mere fact that the accused was drinking before the occurrence took place does not minimise the nature of the offence especially when we find that he ran to his house to fetch a balua and gave a severe blow with it. Having held that it is a case which comes within the mischief of Section 302, the only sentence that could be inflicted by a Court of law was death or transportation for life. The learned Judge has exercised his discretion in not awarding the extreme penalty of law. But it appears that the age of accused is mentioned as 16 years, in the confession; before the Committing Magistrate his age is mentioned as 14 years. That was on 8th January 1941; and before the Sessions Court on 19th August 1941, his age is mentioned as 18 years. Prom these it appears that the accused is rather young. Although this Court in a case u/s 302 cannot pass any sentence less than that of transportation for life, the authorities who are entitled to exercise the prerogative of the Crown are not restrained from any such consideration. In the result I would dismiss the appeal.

Rowland, J.

I agree.