BHUBONI SAHU Vs. KING

JUDGEMENT

(1.) This is an appeal by special leave from the judgment and order of the High Court of Judicature at Patna dated 19 September 1947 dismissing an appeal against the judgment and order of the Court of the Sessions Judge of Ganjam-Puri dated 23 July 1947 whereby the appellant was convicted of the offence of murder under S. 302/34, Indian Penal Code, and sentenced to death. At the conclusion of the arguments their Lordships announced that they would humbly advise His Majesty that the appeal be allowed and would state their reasons later. This they now proceed to do.

(2.) It is not in dispute that on 11 October 1946 one Kalia Behara was brutally murdered at a place between Berhampur, where he lived and carried on business as a jutka driver, and Golantra, to which he was driving with passengers in his jutka. It is unnecessary to refer to the details of the murder; though it may be noted that the motive attributed to the appellant was that he is a relation of accrued 1 and 2 who are said to have been on terms of enmity with the deceased, but both of whom were acquitted of the murder. Eight persons were charged with the offence and tried by the Sessions Judge of Ganjam-Puri. The learned Judge convicted six of the accused including the appellant who was accused 7 and one Trinath, who was accused 5. The six convicted persons appealed to the High Court at Patna. Two of the appeals were allowed, but the other appeals, including these of the appellant and Trinath, were dismissed. The only question which arises on this appeal is whether there was evidence upon which the appellant could be properly convicted.

(3.) The evidence against the appellant consisted of, (a) the evidence of Kholli Behara who had taken part in the murder and had become an approver; (b) the confession of Trinath recorded under S. 164, Criminal P. C., which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or instrument for cutting grass, in circumstances alleged to implicate the appellant.