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Jamkhokhai Kuki Vs. the State of Manipur - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJamkhokhai Kuki
RespondentThe State of Manipur
Excerpt:
- - it was held that the delay in making first information report without any satisfactory explanation creates a good deal of suspicion on its authenticity. 1 (jamlhoon) complained to p. 1 (jamlhoon) deposed, as can be seen from para 16 of his evidence, that the dance party carried weapons, like dao or spear, that p. pakang) is that they ran into the village raising alarm that yamkhokai bad killed pakang and that p. state of punjab 1956crilj827 it was held that the relationship of the prosecution witnesses to the murdered man is no ground for not acting upon their testimony, if it is otherwise reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened at the time of the incident. c. jagannadhacharyulu, j.c.1. criminal appeal no. 3 of 1966 was filed by the accused jamkhokhai kuki of tolhang village in sessions case no. 2 of 1965 on the file of the sessions judge at imphal, against his conviction under section 302 i.p.c. and sentence that he should be hanged by his neck until he is dead.2. criminal reference no. 8 of 1966 is a reference made by the sessions judge under section 374 cr.p.c. for confirmation of the sentence of death passed by him on the appellant.3. the appellant jamkhokhai kuki of tolhang was charged with the offence of murder under section 302, i.p.c. on the allegation that he murdered one pakang alias yamkhosem of the same village of tol-hang at about 6-00 p.m. on 16.8.1964 by stabbing him with a knife at the outskirts of the village of tolhang......
Judgment:

C. Jagannadhacharyulu, J.C.

1. Criminal Appeal No. 3 of 1966 was filed by the accused Jamkhokhai Kuki of Tolhang village in Sessions Case No. 2 of 1965 on the file of the Sessions Judge at Imphal, against his conviction under Section 302 I.P.C. and sentence that he should be hanged by his neck until he is dead.

2. Criminal Reference No. 8 of 1966 is a reference made by the Sessions Judge under Section 374 Cr.P.C. for confirmation of the sentence of death passed by him on the appellant.

3. The appellant Jamkhokhai Kuki of Tolhang was charged with the offence of murder under Section 302, I.P.C. on the allegation that he murdered one Pakang alias Yamkhosem of the same village of Tol-hang at about 6-00 p.m. on 16.8.1964 by stabbing him with a knife at the outskirts of the village of Tolhang. The appellant pleaded not guilty to the charge.

4. The case of the prosecution according to the charge sheet and as brought out in the evidence is as follows:

(a) Tolhang is a hill village which is situated at a distance of about 21 miles from Ukhrul town. P.W. 3 (Yamthang) is the Village Chief. P.W. 2 (L. Pakang) and 5 (Yamkholan) are his younger brothers. P.W. 1 (Jamalboon) is the younger brother of the deceased, Yamkhosem alias Pakang. All of them and the accused-appellant are the residents of Tolhang village. The deceased was also a resident of the same village.

(b) About a week prior to 16.8.64, the appellant and his father made a complaint before P.W. 3 (Yamthang) that the deceased (Pakang) had illicit intercourse with the appellant's wife. There was a Bichar (Panchayat). In the Panchayat, the appellant denied having had any illicit intimacy with the deceased. In the course of the Panchayat, the appellant assaulted the deceased. The Panchas held that the charge made by the appellant was not proved.

(c) To celebrate the Independence Day on 15.3.1964, about 21 villagers of Tolhang village including males and females, the deceased and P.Ws. 1 to 5 formed a dance party and went to Ukhrul town, the Head quarters of the sub-division on 14.8.64. The party was led by P.W. 3 (Yamthang) village Chief and by his younger brother P.W. 2 (L. Pakang). P.W. 3 (Yamthang) went away to Imphal from Ukhrul after the performance was over on 15.8.64. But the remaining members of the dance party returned home on 16.8.64 in batches along a foot path by the side of hills, P.W. 1 (Jamlhoon), the deceased and the P.W. 2 (L. Pakang) were returning in one batch. When they reached Santhak village, which is about 6 miles from Tolhang, the deceased wanted to purchase a tin of paddy. So, the 3 persons stayed in that village for about one hour and resumed their journey,

(d) When they reached the outskirts of the village of Tolhang, which were about 3 furlongs from the village, the appellant rushed down from the top of a hill, where he lay in wait. He rushed towards the deceased by holding a knife, whose blade was about one foot in length. The deceased questioned the appellant whether he was going to kill him. But, the appellant did not give any reply. P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) then alerted the deceased and asked him to run away down the hill. Accordingly, the deceased ran down the hill. Though P.W. 2 (L. Pakang) asked the appellant not to chase the deceased, the appellant jumped down the hill and pursued the deceased. When the deceased turned back to see if the appellant was chasing him, the appellant stabbed the deceased twice on the neck. The deceased fell and rolled down the slope of the hill. P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) heard some more sounds of hitting. But, they could not see the deceased.

(e) P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) thought that the deceased must have died. They ran to the village raising alarm that Jamkhokhai killed Pakang. On hearing the alarm, 5 villagers, namely, P.W. 4 (Onkhopo), P.W. 5 (Yamkholen), and 3 other villagers rushed out and enquired them about the matter P.W. 2 (L. Pakang) told them that the appellant had killed Pakang. He led them to the scene of offence. P.W. 1 (Jamlhoon) stayed back crying. P.W. 4 (Onkhopao), P.W. 5 (Yamkholen) and 3 other villagers saw the dead body at a distance of about 100 feet below the road and brought it to the house of the deceased.

(f) According to the practice of the village tribals, they had to await the return of P.W. 3 (Yamthang), the Chief of the village for his advice as to the further steps to be taken. P.W. 3 (Yamthang) returned from Imphal in 4 or 5 days. Under his advice P.W. 1 (Jamlhoon) and P.W. 5 (Yamkholen) went to Phungvar an Outpost Police Station, which is about 12 miles from Tolhang village. But there was no Police Officer in the Outpost. So, they contacted the S.D.C., who advised them to go to Ukhrul Police Station. They returned home and left the village in the morning of the next day for Ukhrul village, which is about 21 miles from their village. At about 5-00 p.m. on 23.8.64 P.W. 1 (Jamlhoon) gave Ext. A/1 complaint to P.W. 7 (Mani Singh) who was in charge of the Police Station. The latter registered a case under F.I.R. No. 57 (8)(64) under Section 302 I.P.C. on the file of Ukhrul Police Station against the appellant and examined P.W. 1 (Jamlhoon). P.W. 7 (Mani Singh) sent a wireless message to P.W. 9 (Nilamani Singh), the Station House Officer. P.W. 9 (Nilamani Singh) came to the Police Station at Ukhrul on 24.8.64 and took over the investigation. He proceeded to the village on 25.8.64 and conducted inquest over the dead body as per Ext. A/3 in the presence of P.W. 2 (L. Pakang) and P.W. 3 (Yamthang). He seized Ext. M.O. 1 green shirt and Ext. M.O. 3 banian (gangie) belonging to the deceased, produced by P.W. 1 (Jamlhoon), which were already washed. He seized them under Ext. A/2. He examined the witnesses. At about 3-00 p.m. he made a search in the house of Vungum, the father of the appellant, in which both of them lived. Ext. A/5 is a search list prepared by him. He obtained the signature of Vungum on the back of Ext. A/5. He proceeded to the scene of offence at about 3-30 p.m., which was pointed out by P.W. 2 (L. Pakang) and P.W. 4 (Onkhopao). He prepared Ext. A/7 plan of the scene of offence. Ext. A/7/1 is the index for it. He despatched the dead body to the Civil Hospital at Imphal through P.W. 8 (Chaoba Singh), Police constable, for conducting the post-mortem examination.

(G) P.W. 6 (Shri N. Gulapchand Singh), R.M.O. Civil Hospital conducted the autopsy at about 2-15 p.m. on 26.8.64. He found 7 injuries, namely, (1) one incised wound across the front portion of the neck 5' 3' upto the neck bone, (2) An incised wound across the neck 4' 3' muscle deep on the right side, (3) An incised wound 2' 1' lungdeep cutting the fifth and sixth ribs in front, (4) an incised wound 3' 1' lung-deep between the 7th and 8th ribs on the right side of the front of the chest near the sternum, (5) An incised wound 4' 2' cutting the cartilege of the 7th and 8th ribs causing injury of the liver, (6) An incised wound 4' 2' bone-deep on the back of the right upper arm at the lower third running obliquely and (7) one incised wound 2' 1' long-deep on the middle of the back of the chest. He found that the body was in decomposed state, His opinion is that the death might have been caused by shock and haemorrhage and could be almost instantaneous, if the injuries were ante-mortem and that injury No. 6 itself was sufficient to cause the death of the deceased. Ext. A/6 is the post-mortem certificate issued by him.

(h) The appellant absconded from the village, P.W. 9 (Nilamani Singh) the investigating officer arrested him on 15.9.64 in Goyaltabi village when he was going to Sanakeithel which is about 50 or 60 miles from Tolhana village.

5. The case of the appellant is that there was dispute between him and P.W. 2 (L. Pakang) in connection with a demand made by him for money payable to him and the deceased, that P.W. 2 (L. Pakang) threatened to kill the appellant by shooting him with a gun, that the appellant gave information to the Police about the gun and that the Police Officer searched the house of P.W. 2 (L. Pakang) and seized a Japanese rifle from his possession. It is also the case of the appellant that he shifted from Tolhang with his family including his wife, father and mother to Muleh alias Kamse Muleh village after the X'mas of 1963, that he continued to live in that village until he was arrested by the Police, that on 15-8-64, the appellant took part in the Independence Day celebrations which took place in Kamse Muleh village and that the case was foisted on him by P.W. 2 (L. Pakang). He examined D.W. 1 (Kimthang) of the said village as his witness.

6 The learned Sessions Judge, after carefully considering the evidence, held that the appellant was guilty of the offence of murder under Section 302 I.P.C. and sentenced him to death in view of the circumstances that the appellant had no grave provocation and that he committed cold and brutal murder of a defenceless person. So, he submitted the records to this Court under Section 374 Cr.P.C. for confirmation of the death sentence. The appellant filed the appeal challenging the judgment of the learned Sessions Judge.

7. The first contention of the learned Counsel for the appellant is that there was delay of about 7 days on the part of P.W. 1 (Jamlhoon) in lodging Ext. A/1 complaint in the police station in Ukhrul village before P.W. 7 (Mani Singh), the then Officer in charge of the Police Station, while the occurrence was alleged to have taken place at about 6-00 p.m., on 16.8.64 and that, therefore, in view of the delay the case of the prosecution cannot be believed. He relied on Angom Kala Singh v. Manipur State AIR 1953 Manipur 2 decided by this Court. It was held that the delay in making first information report without any satisfactory explanation creates a good deal of suspicion on its authenticity. But, even in that decision, it was held that if there is satisfactory explanation for the delay, then there cannot be any doubt about it and that then the delay is not fatal to the case. There are a series of decisions, which held that the delay only puts the Court on its guard and that it can be condoned if there is satisfactory explanation for the same. In Mir Jawali v. Emperor AIR 1936 Pesh 106 it was held that mere delay in making a report is not sufficient to make a case of murder doubtful, when there are eye-witnesses whose statements are not vitiated by material contradictions or improbabilities, when sufficient motive has been established and when the accused has absconded immediately after the occurrence. In Radha Kishen v. Emperor AIR 1938 Lah 714 it was held that the delay in making a report to the Police is only a suspicious circumstance which puts the Court on its guard and that it cannot by itself be held to be a reason for rejecting the evidence which is otherwise full entitled to credit. Vide also in Kassim Haji Khan v. Emperor AIR 1944 Sind 94. In Dalip Singh v. State of Punjab : [1954]1SCR145 a murderous assault took place at a distance of about 12 miles from the Police Station. The victim did not die immediately. It was held that in the view that the informant's first thought would have been to tend the victims and also that she had to cover the distance to the Police Station partly on foot and partly by lorry, a report made to the Police about 6 hours, after the occurrence was prompt. So, the evidence has to be examined to see whether there is any satisfactory explanation for the delay. The evidence on this point is that of P.Ws. 1 to 5. The evidence of P.W. 1 (Jamlhoon) is that P.W. 3 (Yamthang) was not present in the village as he had gone to Imphal, that according to the village custom he had to wait for his return and his orders and that therefore he did not even bury the dead body. It is also his evidence that after P.W. 3 (Yamthang) returned to the village, he reported the matter to him, that P.W. 3 (Yamthang) asked P.W. 1 (Jamlhoon) to report the matter to the Police Station, that accordingly P.W. 1 (Jamlhoon) went to the Outpost Police Station in Phungyar which is about 12 miles away from the village on the southern side, but that no police Officer was found in the Station that he returned back and proceeded to Ukhrul Police Station by another road leading towards the north, while Phungyar is towards the south and that all these villages are in the hills. He further deposed that he went to Ukhrul on the same day on which he returned from Phungyar, that he reached Ukhrul in the evening of the day and made an oral report to the Officer in charge of the Police Station and that the latter reduced it to writing. But, there was no cross-examination of P.W. 1 (Jamlhoon) with regard to the above evidence. P.W. 2 (L. Pakang) deposed that as the Chief of the Village, namely, P.W. 3 (Yamthang) was absent, the dead body was kept in the courtyard of the house of the deceased, that the villagers awaited the return of P.W. 3 (Yamthang) from Imphal as, according to the village custom, a report had to be first made to the village Chief, that P.W. 3 (Yamthang) returned to the village after 5 days, that on his return P.W. 1 (Jamlhoon) complained to P.W. 3 (Yamthang), that the latter asked him to report to the Police Station and that P.W. 1 (Jamlhoon) went away to make the report. P.W. 3 (Yamthang) corroborated their evidence, though he did not state that there was any custom. He too was not cross-examined with reference to his evidence that he was not present in the village on 16.8.64 and that he returned to the village from Imphal some days later. P.Ws. 2 and 3 (L. Pakang and Yamthang) are brothers and are closely related to the appellant. P.W. 4 (Onkhopao) swore that P. W, 3 (Yamthang) was not in the village, as he had gone to Imphal and that some days later he returned to the village. P.W. 4 (Onkhopao) is the brother-in-law of the appellant as he married the sister of the appellant. P.W. 5 (Yamkholam) is another brother of P.Ws. 2 and 3 (L. Pakang and Yamthang) and is also a close relation of the appellant. He deposed that as P.W. 3 (Yamthang) was not present in the village, the villagers guarded the dead body and awaited the return of P.W. 3 (Yamthang), that P.W. 3 (Yamthang) returned after 3 or 4 days after the occurrance, that the villagers reported to him and that P.W. 3 (Yamthang) asked P.W. 1 (Jamlhoon) and P.W. 3 5 (Yamkholen) to go to the Police Station to make the complaint. P.W. 5 (Yamkholen) deposed that he accompanied P.W. 1 (Jamlhoon) to the Police Station and corroborated his evidence. P.Ws. 2 to 5 (L. Pakang, Yamthang, Onkhopao and Yamkholan) are independent witnesses and relations of the appellant P.W. 2 (L. Pakang) denied the suggestion that there was some enmity between him and the appellant. He however admitted that he surrendered a Japanese rifle to the Police. But, he denied the suggestion that the appellant gave information to the Police about his possession of the rifle. There is no suggestion that P.Ws. 3 (Yamthang), 4 (Onkhopao) and 5 (Yamkholan) are also inimically disposed towards the appellant. So, the evidence of P.Ws. 1 (Jamlhoon), 2 (L. Pakang), 3 (Yamthang), 4 (Onkhopao) and 5 (Yamkholen) is consistent and shows that there is a practice in the village that at first a complaint should be lodged before the Village Chief and that the villagers abide by his advice, that P.W. 3 (Yamthang) was absent from the village of Tolhang on 16.8.64 and that he returned after 4/5 days, that P.W. 1 (Jamlhoon) and P.W. 5 (Yamkholen) at first went to Phungyar village, which is about 12 miles from the village on the southern side and that later on P.W. 1 (Jamlhoon) and P.W. 5 (Yamkholen) went to Ukhrul which is 15 miles away from Tolhang on the northern side of the village. The. Court has also to take judicial notice of the fact that the hill areas, in which the villages are situate, are disturbed areas. As such, there is satisfactory explanation for the delay of about one week on the part of P.W. 1 (Jamlhoon) in lodging the complaint in the Police Station in Ukhrul.

8. The next contention of the counsel for the appellant is that though P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) are the eye-witnesses, there are some discrepancies in their evidence and that, therefore, their evidence cannot be believed. Firstly, he urged that according to P.W. 1 (Jamlhoon), the dance took place in the afternoon of 15.8.64, while Pt W. 2 (L. Pakang) deposed that the dance was in the morning. But, there is actually no discrepancy. P.W. 2 (L. Pakang) did not state that the dance took place in the morning of 15.8.64. He stated that the party had started to go home in the morning of 16th August, 1964. Secondly, he, pointed out that P.W. 1 (Jamlhoon) deposed, as can be seen from para 16 of his evidence, that the dance party carried weapons, like dao or spear, that P.W. 1 (Jamlhoon). P.W. 2 (L. Pakang) and the deceased were thus armed with weapons and that, therefore, it was improbable that the appellant would have attacked the deceased. This contention is not correct. He misread paragraph 16 of the evidence of P.W. 1 (Jamlhoon), P.W. 1 (Jamlhoon) denied that the dance party carried weapons. P.W. 2 (L. Pakan) deposed that the dance party did not carry weapons. Their evidence is that they carried only wearing apparels to be used in the dance. So, they were unarmed. The evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L pakang) shows that they and the deceased were taken by surprise by the appellant, who lay in ambush on the top of the hill and suddenly jumped before them. Their evidence that the deceased questioned the appellant whether he was going to kill him, that they asked the deceased to run away and that they also asked the appellant not to pursue him is quite believable. So, the fact that they did not intervene, especially when the appellant was armed with a long knife, does not belie their evidence. Thirdly, the evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) is that they ran into the village raising alarm that Yamkhokai bad killed Pakang and that P.W. 4 (Onkhopao), P.W. 5 (Yamkholen) and three others gathered and heard the alarm about the occurrence. The discrepancy pointed out is that P.Ws. 1 (Jamlhoon) and 2 (L. Pakang) deposed that they had run away and told the villagers and that P.W. 2 (L. Pakang) took the villagers to the spot but that P.W. 4 (Onkhopao) deposed that P.W. 2(L. Pakang) did not lead the villagers to the spot. The evidence of P.W. 2 (L. Pakang) is that he took the villagers near to the place of occurrence. P.W. 4 (Onkhopao) stated that on hearing the alarm he rushed out of Ms house, that P.W. 5 (Yamkholen) and 3 other villagers met him, that P.W. 2 (L. Pakang) told them about the incident and that they went to the spot and brought out the dead body. The evidence of P.W. 5 (Yamkholen) is also to the same effect. He stated that P.W. 2 (L. Pakang) remained on the road near the place of occurrence and pointed out the place where the deceased had rolled down that the five villagers went and brought the dead body. So the evidence of P.W. 1 (Jamlhoon), P.W. 2 (L. Pakang), P.W. 4 (Onkhopao) and P.W. 5 (Yamkholen) is consistent and shows that the villagers, viz. P.W. 4 (Onkhopao), P.W. 5 (Yamkholen) and others learnt about the occurrence from the alarm raised by P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) and particularly from P.W. 2 (L. Pakhang) and that P.W. 2 (L. Pakang) also pointed out the scene of occurrence, while P.W. 1 (Jamlhoon) stayed back weeping. The discrepancy that P.W. 2 (L. Pakang) stood on the road above the place where the dead body lay but that he did not actually go to it is a trifling one. Fourthly, P.W. 1 (Jamlhoon) identified M.Os. 1 (shirt) 3 (ganji) as those of the deceased. At first he identified M.O. 2 as that of the deceased. But M.Os. 2 and 4 were seized from the appellant by P.W. 9 (Nilamani Singh) the Investigating Officer. The mistake on the part of P.W. 1 (Jamlhoon) in identifying the M.Os. is not at all material, since it was P.W. 1 (Jamlhoon) who produced the M.Os. 1 and 3 of the deceased before P.W. 9 (Niamani Singh), the Investigating Officer.

9. The evideice of P.Ws. 1 to 5 (Jamlhoon, L. Pakang, Yamthang, Onkhopao and Yamkholen) shows that they and the deceased and some more persons of their village went to Ukhrul to dance and to take part in the Independence Day celebrations. It has to be noted that the appellant did not go to Ukhrul. But, he stayed away in the village to waylay and murder the deceased. Though P.W. 1 (Jamlhoon) is the brother of the deceased, his evidence is not liable to be rejected. In : [1954]1SCR145 , already referred to, it was held that a witness is normally considered to be independent unless he or she springs from sources, which are likely to be tainted and that it usually means, unless the witness has caused enmity against the accused to wish to implicate him falsely. It was also held that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and that the mere fact of relationship, far from being the foundation for criticism of the evidence, is often a sure guarantee of truth. It was further held that, no doubt, no sweeping generalisation can be possible in all cases, but that at the same time there cannot be any general rule of prudence to require corroboration before the evidence is believed and that each case must be limited to and governed by its own facts. In Karnail Singh v. State of Punjab AIR 1954 SC 204 it was held that the corroboration that is required in the case of the testimony of a witness, who is a relation of the deceased in a murder case, is not what would be necessary to support the evidence of an approver but what would be sufficient to lend assurance to the evidence before the Court and satisfy the Court that the particular persons were really concerned in the murder of the deceased. In Gurcharan Singh v. State of Punjab : 1956CriLJ827 it was held that the relationship of the prosecution witnesses to the murdered man is no ground for not acting upon their testimony, if it is otherwise reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened at the time of the incident. As P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) had been to Ukhrul along with the deceased and others (who are all co-villagers) to dance and as they were coming back together on 16.8.64, P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) were natural witnesses and could be expected to be near the deceased and witness the occurrence. The mere fact that P.W. 1 (Jamlhoon) is the brother of the deceased is no ground to disbelieve him. The suggestion of the appellant that a Japanese rifle was seized from P.W. 2 (L Pakana) on the information given by the appellant is not proved.

10. The oral testimony of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) is supported by the circumstantial evidence afforded by their own conduct and the circumstantial evidence of P.W. 4 (Onkhopao) and P.W. 5 (Yamkholen) that P.Ws. 1 and 2 ran to the village raising alarm that Jamkhokhai had killed Pakang. Their conduct in immediately indicating the appellant as the assailant therefore corroborates their direct evidence that they saw the appellant stabbing the deceased. The oral testimony of P.W. 4 (Onkhopao) and P.W. 5 (Yamkholan)) that they heard P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) indicating the appellant as the person who had killed the deceased also supports the direct evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang). It has to be noted that the dead body was brought to the house in the evening of the same day. This could not be done, unless P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) witnessed the occurrance and told P.W. 4 (Onkhopao), P.W. 5 (Yamkholen) and other villagers about it and unless P.W. 4 (Onkhopao) and P.W. 5 (Yamkholen) and the other 3 villagers went to the spot and removed the dead body and carried it to the house of the deceased. These circumstances support the oral evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang).

11. The medical evidence of P.W. 6 (N. Gulapchand Singh) also supports the case of the prosecution. P.W. 1 (Jamlhoon) and P. W 2 (L. Pakang) were able to see the appellant stabbing the deceased twice on the neck I They could not have seen the other injuries, as the deceased rolled down the slope of the hill. They could only hear the sounds generated by the knife when the appellant stabbed the deceased. As such, the evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang) before the Committing Magistrate that the appellant had inflicted the other injuries also must have been based upon their surmise. The evidence of P.W. 6 (N. Gulapchand Singh) shows that the external injury No. 6 mentioned in Ext A/6 was itself sufficient to cause death. The learned Counsel for the appellant argued that P.W. 6 (N. Gulapchand Singh) stated in Ext. A/6 that the liver was healthy, while in fact, his evidence is that the liver was injured and that, therefore, the evidence of P.W. 6 (N. Gulapchand Singh) cannot be believed. P.W. 6 (N. Gulapchand Singh) himself explained the mistake by stating that his note in Ext. A/6 that the liver was healthy was a mistake. So, the medical evidence of P.W. 6 (N. Gulapchand Singh) also supports the direct evidence of P.W. 1 (Jamlhoon) and P.W. 2 (L. Pakang).

12. There is the further circumstance that the appellant absconded immediately after murdering the deceased. The evidence of P.Ws. 1 to 5 (Jamlhoon), L. Pakang, Yamthang, Onkhepao and Yamkholen is that the appellant was not found in the village after the occurrence took place, P.W. 9 (Nilamani Singh) the Investigating Officer, searched the house of Vungum, the father of the appellant at about 3-00 p.m. and prepared Ext. A/5 search list, which bears the signature of Vungum on the back of it. The evidence of P.W. 3 (Yamthang) who attended the search and that of P.W. 9 (Nilamani Singh) is that the appellant was absent, but that his father was present in the house at that time. As such the evidence of D.W. 1 (Kimthang) who came forward to support the theory of alibi set up by the appellant and who stated that the appellant shifted his residence to the village of D.W. 1 (Kimthang) and that the appellant is living with his wife, parents and others in that village is false. It is also belied by the evidence of P.Ws. 1 to 5 (Jamlhoon, L. Pakang, Yamthang, Onkhopao and Yamkholen), P.W. 9 (Nilamani Singh) arrested the appellant oft 15.9.64 in Gaulatabi village when the appellant was going to Sanakeithel. So, the appellant was absconding till 15.9.64.

13. The contention of the learned Counsel for the appellant that some hostile per1 son might have murdered the deceased because the area is a disturbed one and that P.W. 1 (Jamlhoon), P.W. 2 (L. Pakang), P.W. 4 (Onkhopao) and P.W. 5 (Yamkholen) subsequently traced the dead body some days after he was murdered cannot be upheld in view of the evidence of P.Ws. 1 to 5 Jamlhoon, L. Pakang, Yamthang, Onkhopao and Yamkholen.

14. According to the prosecution, the appellant had some motive to murder the deceased, P.W. 1 (Jamlhoon) P.W. 2 (L. Pakang), P.W. 3 (Yamthang) and P.W. 5 (Yamkholen) speak to the motive. P.W. 1 (Jamlhoon) stated that about one week prior to the occurrence, the father of the appellant made a complaint before P.W. 3 (Yamthang) and the other villagers that the deceased had illicit intimacy with the wife of the appellant, that P.W. 3 (Yamthang) and the other Panchas held a Panchayat and that the village elders decided that the deceased was innocent. To the same effect is the evidence of P.W. 2 (L. Pakang). But P.W.3 (Yamthang) stated that, at the commencement of the Panchayat itself, the appellant assaulted the deceased, that the elders separated them and that they stopped the Panchayet after asking the deceased and the appellant not to quarrel. So, the Panchas did not complete the enquiry. P.W. 5 (Yamkholen) stated that the father of the appellant made the complaint before P.W. 3 (Yamthang), that P.W. 5 (Yamkholen) did not stay till the end of the enquiry and that he did not know what happend. As such, it cannot be said that there was full enquiry by the Panchayet and that the Panchayet decided that the charge of the appellant was baseless. So, the appellant appears to have been under a delusion that the deceased had illicit intimacy with his wife and, therefore, waylaid and murdered him. In his examination by the lower Court the appellant denied the entire case of the prosecution. He did not even state that the deceased had illicit intimacy with his wife. But, his statement is not material, in as much as, there is the evidence of P.W. 1 (Jamlhoon), P.W. 2 (L. Pakang), P.W. 3 (Yamthang) and P.W. 5 (Yamkholen) themselves on this point. The appellant is entitled to rely on their evidence in this regard. Unless there was some truth in the charge of the Appellant, he would not have alleged that the appellant committed adultery on his wife.

15. Thus, the guilt of the accused is proved beyond all reasonable doubt. His conviction under Section 302, I.P.C. is correct.

16. The next point for determination is whether the circumstances of the case call for infliction of the capital sentence of death on the appellant. No doubt, the appellant waylaid the deceased, pursued him and stabbed him to death. But, he was under the belief that the deceased had illicit intimacy with the wife of the appellant. The appellant had sufficient provocation by the act of the deceased, in committing adultery on the wife of the appellant So, there are extenuating circumstances in the case. As such, the sentence of death is modified into one of imprisonment for life and the conviction is confirmed.

17. The Reference is rejected and the appeal is dismissed subject to modification of the sentence into one of imprisonment for life.


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