C. Jagannadhacharyulu, J. -
(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. 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.
(3.) 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" Ã - 3" Ã - upto the neck bone, (2) An incised wound across the neck 4" Ã - 3" Ã - muscle deep on the right side, (3) An incised wound 2 1/2" Ã - 1" Ã - lungdeep cutting the fifth and sixth ribs in front, (4) an incised wound 3" Ã - 1 1/2" Ã - 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 1/2" Ã - 2" Ã - cutting the cartilege of the 7th and 8th ribs causing injury of the liver, (6) An incised wound 4 1/2" Ã - 2" Ã - bone -deep on the back of the right upper arm at the lower third running obliquely and (7) one incised wound 2" Ã - 1" Ã - 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.
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.;