Ram Jolaha vs Emperor

Ross, J.—This case has been referred to this Court by the learned Sessions Judge of Bhagalpur for confirmation of the sentence of death passed upon Earn Julaha and there is also an appeal by the prisoner. Earn Jolaha was sent up by the Police on a charge u/s 304 of the Indian Penal Code and was committed for trial by the Magistrate under that section The learned Sessions Judge, however altered the charge to one u/s 302, charging the appellant with the murder of Musammat Suratia Jolahin on the 12th of March 1926. The four assessors with whose assistance the trial was held were of opinion that the appellant killed Musammat Suratia, but without any intention to

The facts of the case are simple. Garbhu and the appellant Earn Jolaha are chowkidars and next-door neighbours. According to the evidence of Garbhu they used to visit one another and were on good terms On the 12th of March, 1926, their wives the deceased Suratia and the wife of the appellant went to reap peas in the field of Jainath Misser and if appears that they quarrelled about their wages which were paid in kind. The quarrel was settled by Jainath Misser; but when the women returned to their homes in the evening they resumed their dispute. They were abusing each other when the appellant came up and his wife appealed to him, whereupon he brought a lathi out of his house and struck Suratia on the head and she died.

The case depends principally upon the evidence of two young children--the sons of the deceased, Jangli Jolaha a boy of thirteen, and Bandhu Jolaha a boy of seven. Both these boys have described the quarrel and the act of the appellant and no reason has been shown in their cross-examination for not relying on their evidence as regards these broad facts.

The learned Vakil for the appellant in commenting on the evidence of these witnesses contended with regard to Bandhu Jolaha that there is nothing to show that learned Sessions Judge satisfied himself that he understood the nature of an oath. The law as to the competency of witnesses is contained in Section 118 of the Evidence Act. The only test of competency is that the witness should not be prevented from understanding the questions put to him or from giving rational answers to those questions, by tender years or other cause. The learned Sessions Judge evidently had this provision of the law in his mind because he observes in his judgment that this boy is an intelligent boy well able to understand questions put to him and to give sensible replies. The witness, therefore, evidently was a competent witness and, as he was put on solemn affirmation, it must be presumed that the learned Judge was satisfied that he understood what the affirmations meant. A further criticism offered on the evidence was that there are discrepancies as regards the nature of the quarrel between the woman on the field, between the version given by Jangli and that given by Jainath Misser. Even if the evidence on this point is not altogether consistent, this is quite immaterial to the actual occurrence itself. A third point taken was that it is impossible to rely upon the evidence of the two boys so far as it professes to state the actual words used by the appellant. What Jangli says is that the appellant said to his mother "1 will give you such a blow that you will be killed". Bandhu says that the appellant said "I will break your head" and "badmash, I will kill you." There is this difference between these statements; and it is to be borne in mind that the evidence of these witnesses was given a year after the events. Moreover the actual words in Hindi have not been reproduced; and it is impossible to say exactly how far they went. Further, Jangli has, undoubtedly, exaggerated the case in saying that after the fatal blow was struck the appellant poked his mother on the forehead with the lathi--a statement which seems to be untrue, because there is nothing in the medical evidence to corroborate it. On these grounds it seems to me that no effect can be given to these words attributed to the appellant and that all that can be found in this case is that as the result of a quarrel between the two women the appellant, being provoked by the abuse given to his wife, in sudden anger, struck the deceased a heavy blow on the head with a lathi and fractured her skull and caused her death. The only evidence as to the dimensions of the lathi is the statement of Jangli that it was very thick, the witness indicating 2 inches in diameter.

The substantial question is whether the act of the appellant properly falls within the definition of murder or within the definition of culpable homicide not amounting to murder. The learned Government Advocate conceded that it was not covered by the first three clauses of Section 300, but he sought to apply the fourth clause. For the appellant it was argued that the most that can be said is that the act was done with the knowledge that it was likely to cause death. The learned Sessions Judge has referred to the nature of the injury, a very extensive fracture of the skull, and to'' the opinion of the Assistant Surgeon that the weapon (a lathi) must have been a very heavy weapon and the blow very severe, and has come to the conclusion that the appellant must have known that the natural result of such a blow would be to cause death. In a somewhat similar, and perhaps stronger case: Sardar Khan Jaridkhan v. Emperor 36 Ind. Cas. 578 : 41 B. 27 : 18 Bom. L.R. 793 : 17 Cr. L.J. 530 their Lordships observed that it is possible that the blow that the appellant struck exceeded in violence the injury he had in view at the moment of striking it. The circumstances of the present case do not lead to the inference of an intention to kill and it does not seem necessary to infer on the evidence that the appellant had the knowledge that the act was so imminently dangerous that it must in all probability cause death. The knowledge that death was a likely result may fairly be inferred against the appellant in view of the injury actually caused; but beyond this it does not seem to be necessary in the circumstances of this case, to go.

In this view I would discharge the reference, set aside the conviction and sentence passed against the appellant u/s 302 of the Indian Penal Code and convict him under the second part of a. 304, Indian Penal Code, and sentence him to five years'' rigorous imprisonment.

Wort, J.

I agree.