Khurkhur Lohar vs Emperor

Adami, J.—The appellant Khurkhur Lohar has been found guilty by the-Sessions Judge of Muzaffarpur of the murder of one Parichhan Singh and has been sentenced to death u/s 302, I.P.C. The sentence comes up before us for confirmation.

The facts of the case are really very simple. Khurkhur, the appellant, was-the cousin of one Eamkhelawan, who was possessed of 1 3/4 bighas of land in village Phulwaria. Ramkhelawan died some six years ago leaving a widow Mt. Sundari and his mother Mt. Pania. Khurkhur was separate from Eamkhelawan, and after Eamkhelawan''s death appears, to have been living with the two widows. Somehow or other, in 1923, he got Mt. Pania to mortgage part of the If bighas to him.

Later on there was trouble about the land and Mt. Sundari sold it by kabala to Parichhan. There had been trouble between the ladies and Parichhan and the appellant, and at the time of the occurrence that trouble was still, it appears, subsisting. Both Parichhan and the appellant were claiming the land seeking to show signs of possession over the same. On 17th August last Khurkhur went to the land and started harrowing near the southern boundary of the northern plot. Parichhan came with two ploughs and his cousin Ballam and two ploughmen, and, seeing Khurkhur, directed Ballam to unyoke Khurkhur''s bullocks. Ballam stopped Khurkhur harrowing and then Khurkhur came and unyoked the ploughs of Parichhan. Then a fight began.

It would appear that Ballam hit Khurkhur and Khurkhur hid Parichhan. Anyhow Parichhan fell and thereupon Khurkhur came and sat upon him until Binda and a chaukidar Maulat Dhunia came and took away the lathis which the three men had been using. I forgot to mention that Parichhan had a long lathi and Ballam and Khurbhur carried smaller lathis. When the chaukidar and Maulat Dhunia came up they found that Parichhan had many incised wounds on his stomach and other parts of his body, whilst Khurkhur also was lying wounded. An attempt was made to take Parichhan on a khatia to Muzaffarpur, but he died on the way on his body was brought back to Phulwaria.

Thereafter the chaukidar Maulat started for the thana, which is ten miles away, and laid an information. In that information he stated the facts very much as I have recorded them, He said that he could not tell by what instrument the wounds had been caused; he also stated that the present appellant had received much hurt and that there was no preparation for an assault previous to the occurrence, When Sub-Inspector arrived at Phulwaria on the 17th, no mention was made, of the weapon by which the wounds on Parichhan were caused, but later on, on the following day, it was stated that a knife had been found in Parichhan''s hand or by his side. It was not until the 18th that the knife had been, found by one Ramasrey, who gave it to Raghunandan Das, who in his turn gave it to Dwarka and Dwarka gave it to Jai Singh, Jai Singh handed it to the Sub-Inspector.

The post-mortem examination showed that Parichhan''s body bore two punctured wounds in the stomach and two incised wounds on the arm and'' wrist as well as a scratch on the arm. The right rib had been divided, the liver had been lecerated and the right lobe punctured, while the spleen had also been punctured. Death was due to haemorrhage caused by the rupture of the liver and spleen. Khurkhur was also found to have had six wounds on his person. He had a compound fracture of the zygoma bone, that is to say, of the cheek bone, an incised wound below the left eye, an incised wound on the frontal bone, a lacerated wound near his eye, as well as a lacerated wound on the bridge of the nose. The medical evidence showed that the incised wound below the left eye might well have been caused by the knife, while the one on the frontal bone could not have been.

During the course of the trial evidence was given that when the appellant was upon the body of Parichhan, the knife was handed to him by one Jathu, who with Shakur, came to the aid of the appellant. There is no mention made of either of these two persons in the first information.

Now that there was a fight between the two men on the 17th and that a knife, or a weapon similar to a knife, was used against Parichhan there can be no doubt. The appellant himself in his statement admitted that there had been a fight between him and Parichhan and that there had been an occurrence such as is stated by the proseoution, but, according to him, Parichhan had a knife and hit him on the face. He admits that Binda and Mohit chaukidar came up and saw all the occurrence, so that there can be no doubt that what happened was very much, if not exactly, the story as given by the prosecution. There can be no doubt, as I have said, that the injuries on Parichhan were inflicted by the appellant at the time when he was upon Parichhan''s body and there can also be no doubt in my mind that those injuries were inflicted with a knife, for, as I have said, the appellant himself says that there was a knife used during the fight.

The learned Sessions Judge has found that the act of the appellant in wounding Parichhan amounted to murder inasmuch as he must have known that the wounds would cause death and the appellant acted with the intention of causing death or at least causing such injury as was likely to cause death.

Now in my mind this occurrence arose out of a sudden quarrel. Parichhan appears to have been the aggressor inasmuch as he sent Ballam to unyoke the bullocks of the appellant, and there can be no doubt, that the appellant himself was seriously injured; he received a very severe blow on the face which fractured his cheek bone and also he had other incised wounds. What appears to have happened is that a knife was used and whether it was Parichhan who first made use of it or the appellant, it is quite clear that the appellant got hold of it and used it with fatal results. In the struggle it appears that the appellant himself received a cut with it in the face. If is more probable that the appellant used the knife throughout, for there were signs of cuts on the arms and writs of Parichhan which bear witness to his having tried to avoid the thrusts with the knife.

Now Parichhan and Ballam on his side had a big lathi, while his opponent the appellant had a smaller lathi and was alone, at any rate at the beginning of the quarrel. The quarrel then was a sudden and, as far as one could see, absolutely unpremeditated one. Each of the two parties knew that there was a dispute about the possession of the field, and, even if the appellant had no title under the law, it seems that under compromises and village arrangement he had some reason to think that he had a right to go and cultivate the land. There can be no doubt, I think, that the offence committed by the appellant could not amount to murder. In a sudden fight under grave provocation he used a knife and in using that knife he knew quite well that he was likely to cause serious injuries and he directed that knife towards the vital parts of Parichhan''s body. In using the knife as he did he could not plead that he was justified by the right of private defence, for he certainly was exceeding that right. The offence that I find was committed by him was the offence of culpable homicide not amounting to murder.

I would set aside the conviction of the appellant u/s 302 and the sentence of death passed upon him and convict him u/s 304, I.P.C., and sentence him to five years rigorous imprisonment.

Wort, J.

I agree.