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Gansa Oraon v. King-Emperor

Patna High Court
Mar 20, 1923
Smart Summary (Beta)

Summary of the Opinion — Dawson Miller, C.J. & Mullick, J.

Factual and Procedural Background

This appeal arises from the killing of Tikua; the accused is his brother (named Gansa or Gansa Oraon in the record). A chaukidar (Rup Singh) reported to the police on the afternoon of 16th December that Tikua had a blood-stained wound on his head and that his mother had said her elder son had assaulted the younger while both were under the influence of handia. The Sub-Inspector subsequently recorded a written statement from the accused's wife, Mussammat Budhni, on the evening of 16th December. The accused made a confession before a First Class Magistrate on 18th December and was again examined by the Committing Magistrate on 4th January, when he admitted the previous statement but pleaded drunkenness.

At trial (the Sessions Court) evidence was given by witnesses including Khurloo (a cousin) and Budhni. The accused was convicted of murder and sentenced to death. The case proceeded on appeal to a Bench including Dawson Miller, C.J., and Mullick, J. The principal contested matters on appeal concerned admissibility of certain statements (the writing taken from Budhni and depositions recorded before the Committing Magistrate) and whether the facts disclosed murder or a lesser offence due to drunkenness or grave and sudden provocation.

Legal Issues Presented

  1. Whether the written statement made to the Sub-Inspector by the appellant's wife (Mussammat Budhni) on the evening of 16th December was admissible in evidence as a "first information" under section 154 of the Criminal Procedure Code, or whether it was taken in the course of a police investigation and therefore inadmissible under section 162 of the Criminal Procedure Code.
  2. Whether statements/depositions made by witnesses before the Committing Magistrate may be admitted as substantive evidence at the trial under section 288 (as discussed by the courts), or whether such depositions are inadmissible or admissible only for contradiction (the competing authorities relied upon were Queen-Empress v. Jeochi and subsequent authorities).
  3. Whether the accused's acts amount to murder, or whether the accused may have lacked the necessary knowledge of the likelihood of causing death (or acted under grave and sudden provocation) or been so intoxicated as to reduce the offence.
  4. Whether the investigation had in fact commenced before Budhni's statement such that that writing was taken in the course of investigation and thus excluded from evidence.

Arguments of the Parties

Appellant's (Accused's) Arguments (as presented in the opinion)

  • The written statement made by the appellant's wife to the Sub-Inspector on the evening of 16th December ought not to have been admitted as a first information report, because information had already been given earlier that day by the chaukidar and any subsequent statements taken by the police were made in the course of an investigation and inadmissible under section 162 of the Criminal Procedure Code.
  • The statements made before the Committing Magistrate (depositations) are not admissible as substantive evidence at the trial, and a conviction could not be based solely upon such evidence (relying on Queen-Empress v. Jeochi).
  • The accused contended (as defence pleas) that he might not have been aware that the blow was likely to cause death or that he acted under grave and sudden provocation; he also pleaded drunkenness (having taken handia) as bearing on culpability.
  • The learned Vakil for the accused contended that Budhni's statement to the Sub-Inspector was made in the course of an investigation (and so inadmissible under section 162).
  • The learned Vakil further contended that a witness's statement before the Committing Magistrate (Khurloo's) should not be admissible because the accused did not cross-examine that witness at the Committing Magistrate's court.

Respondent's (Crown / Government) Arguments

  • The learned Assistant Government Advocate contended that Budhni's written statement was an entry in an official book prescribed by section 154 of the Code and therefore attracts the protection of section 35 of the Indian Evidence Act (i.e., should be treated as first information and admissible).
  • On the admissibility of Committing Magistrate depositions, authorities were relied upon (including later explanations of earlier case-law) to support the proposition that depositions under section 288 may be read as substantive evidence where, in the discretion of the judge, doing so is necessary in the interests of justice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Queen-Empress v. Jeochi Authority cited for the proposition that convictions should not be based solely upon depositions recorded before the Committing Magistrate where those witnesses gave diametrically opposite evidence at trial. The court recognized that in Jeochi Bannerji, J. refused to convict where the only evidence was depositions before the Magistrate and the witnesses contradicted themselves at trial; the present court distinguished that case in light of later authoritative explanations and held it did not mean that such depositions were wholly inadmissible.
Emperor v. Dwarka Kurmi The later clarification that the earlier case (Jeochi) did not intend to hold depositions wholly inadmissible, and that the clear language of the applicable section (section 288) permits admission of such depositions as evidence. The court relied on this explanation to support the proposition that statements taken before the Committing Magistrate may, in the judge's discretion and in the interests of justice, be treated as substantive evidence at trial.
Queen-Empress v. Doraswami Aiyyar (Madras High Court) Held that under section 288 the Court is not restricted to admitting previous evidence solely for contradiction; prior evidence may be read as substantive evidence where necessary for the purposes of justice. The court cited this authority to reinforce that depositions before the Committing Magistrate may be read as substantive evidence when the trial judge considers it appropriate in the interests of justice.
Maruti Joti Shindle v. Emperor (Bombay High Court) Expressed a similar view to the Madras decision regarding the admissibility/use of prior depositions under section 288 as substantive evidence in appropriate circumstances. The court referenced this case as additional support for the proposition that magistrate-recorded evidence may be admitted substantively at trial at the judge's discretion; it informed the conclusion that the Judicial Commissioner rightly admitted such evidence here.

Court's Reasoning and Analysis

The opinion contains separate but consistent lines of reasoning by Dawson Miller, C.J., and Mullick, J., which can be summarized as follows.

Admissibility of the Wife's Written Statement (Budhni) and Section 154 / Section 162

  • Dawson Miller, C.J.: He accepted that the chaukidar's statement made earlier in the day amounted to information relating to the commission of a cognizable offence within the meaning of section 154 of the Code. Once such information was given, further written statements taken by the police would be taken in the course of an investigation and therefore inadmissible in evidence under section 162. He acknowledged possible narrow exceptions where an initial communication is too vague to require the officer to begin an investigation, but concluded that in this case the chaukidar's initial report was sufficiently specific to require recording under section 154 and to mean that subsequent statements (including the written statement by Budhni to the Sub‑Inspector) were taken in the course of an investigation and were inadmissible under section 162. He therefore considered Budhni's so-called first information (the writing) should not have been placed on the record and should be rejected as evidence.
  • Mullick, J.: He analyzed the same facts and concluded that the investigation had in fact begun before Budhni's statement. He examined definitions (complaint under section 4(h)) and analogous provisions, reasoning that an "information" is the police-correspondent of a complaint to a Magistrate and must be recorded under section 154 when the allegations are in the nature of a complaint. He concluded the chaukidar's report had been taken as such by the Sub‑Inspector and that Budhni's writing (Ex. 1) was not legal evidence because it was taken in the course of the investigation.

Admissibility and Use of Depositions before the Committing Magistrate

  • Both judges considered the contested authorities. The court accepted that earlier decisions (e.g., Queen-Empress v. Jeochi) had refused to convict where the only evidence consisted of magistrate depositions that were contradicted at trial. However, subsequent authorities (Emperor v. Dwarka Kurmi, Queen-Empress v. Doraswami Aiyyar, and Maruti Joti Shindle v. Emperor) explained that depositions under the relevant provision (section 288) are not wholly inadmissible and may be read as substantive evidence at trial when the judge, in his discretion, considers it necessary in the interests of justice.
  • Dawson Miller, C.J. applied these principles and concluded that the learned Judicial Commissioner rightly admitted the evidence taken before the Committing Magistrate as substantive evidence. He noted it is a matter for judicial discretion and that many cases might be dangerous to rely on such evidence where witnesses are unworthy of credit; but in this case the magistrate-recorded evidence was corroborated by other material (including the accused's confession and Khurloo's evidence at trial).

Evaluation of Witnesses, Corroboration and Confession

  • Both judges examined witness inconsistencies (e.g., Khurloo and Budhni gave different accounts at different stages). Mullick, J. concluded the earlier statements (to the Sub‑Inspector and before the Committing Magistrate) were more likely correct for Khurloo and that the Session Court denials were not convincing. He noted there was no explanation why Khurloo was not cross-examined before the Committing Magistrate but found no reason to think the accused was prevented from exercising his right to cross-examine.
  • Both judges treated the accused's confession(s) as significant. Dawson Miller, C.J. found that even excluding Budhni's writing, the other evidence coupled with the accused's own confession left no reasonable doubt as to guilt. Mullick, J. concluded the confession made on 18th December was corroborated by the later uncontaminated statement before the Committing Magistrate and that the 4th January statement was not tainted by coercion; together they proved the assault.

Drunkenness, Provocation and Mens Rea

  • Dawson Miller, C.J. addressed the contention that the accused might not have realized the blow was likely to cause death, or that he acted under grave and sudden provocation. He found no evidence of grave or sudden provocation (the quarrel was not violent or heated before the act). He also found it impossible to believe that any person using the weapon in question could fail to realize the act's imminently dangerous character likely to cause death or grievous bodily harm. Accordingly, he found no ground to interfere with the verdict or sentence.
  • Mullick, J. examined the drunkenness plea and found the only direct evidence of alcohol consumption was that the accused had taken handia during the day; this, even at its fullest weight, did not discharge the accused's burden to prove lack of intention to kill or to cause injuries likely to cause death. There was no evidence of sudden provocation sufficient to reduce the offence. Mullick, J. therefore concluded the accused was guilty of murder.

Sentencing Considerations

  • Mullick, J. considered mitigation and found the accused's post-offence conduct (apparent callousness, failure to assist the deceased, preventing immediate medical help, and lack of contrition) made mitigation inappropriate. He concluded the death sentence should be confirmed.

Holding and Implications

Holding:

The appeal is dismissed and the sentence is confirmed. Both judges concluded that the accused was guilty of murder.

Implications:

  • Direct effect on the parties: The appellant's conviction for murder was upheld on appeal and the death sentence imposed by the trial court was confirmed by the appellate Bench.
  • Evidence rulings: The court held that the particular written statement (Ex. 1) taken from the accused's wife by the Sub‑Inspector after an earlier chaukidar's information was recorded was inadmissible as it was taken in the course of an investigation (falling within section 162), though the judges separately considered and applied other admissible evidence (confessions and corroborating testimony). The court also affirmed the principle (grounded in the cited authorities) that depositions before a Committing Magistrate may be admitted as substantive evidence under the relevant provision (section 288) when the trial judge considers it necessary in the interests of justice.
  • Broader precedent: The opinion applied and relied on existing case-law to interpret admissibility of magistrate depositions and the scope of first information/report and investigation under sections 154 and 162; the court did not purport to announce a novel legal principle beyond applying and reconciling the authorities cited.
Appeal dismissed.
Sentence confirmed.
Show all summary ...

Dawson Miller, C.J:— (after stating the facts of the case as set out above, proceeded as follows):—

It was argued before us in appeal that the written statement made to the Sub-Inspector by the appellant's wife, on the evening of the 16th, ought not to have been admitted in evidence as a first information report. It was pointed out that information having been already given at the police-station earlier by the chaukidar, any statements afterwards taken by the police were taken in the course of an investigation and were inadmissible as evidence under section 162 of the Criminal Procedure Code. I have no doubt that the statement made at the police-station by the chaukidar was information relating to the commission of a cognizable offence within the meaning of section 154 of the Code. It ought to have been taken down in the book kept for that purpose as provided in the section, and whether this was done or not in the particular circumstances of this case, I think all further statements taken from the witnesses were taken in the course of a police investigation and that the written statements so taken were inadmissible as evidence under section 162 of the Code. Circumstances may arise in which information is given to the police of such a vague and indefinite character that it cannot be treated as coming under section 154 so as to make it incumbent upon the officer-in-charge of the police-station to start an investigation and lie may reasonably require more direct information before doing so and such further information given to him in such circumstances might not come under the provisions of section 162. The information referred to in section 154 appears to me to be something in the nature of a complaint or accusation or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime. I can also conceive that the information referred to in section 154 may come from more than one source, and more than one such information may be recorded at or about the same time, but once the police have taken active steps to investigate, any written statements taken by them cannot be admissible as evidence as they would come within section 162. The Sub-Inspector in the present case stated that as the chaukidar did not give him any idea of the seriousness of the wound he thought the case to be non-cognizable. I have no doubt that he acted honestly in coming to this belief but at the same time there can be no doubt that the information disclosed by the chaukidar in the first instance was such as to show that something more than a common assault had been committed. I therefore consider that the so called first information taken from Budhni, the wife of the appellant, ought not to have been placed on the record as it was not admissible in evidence. I observe that the learned Judicial Commissioner does not refer to this statement as evidence in the case and his judgment does not appear to have been in any way influenced by it. I also think that it should be rejected. Had I considered that it in any way influenced the learned Judicial Commissioner in arriving at the conclusion of the appellant's guilt, I should have considered whether it was necessary to order a new trial. But after considering the other evidence in the case, coupled with the appellant's own confession, I feel no reasonable doubt in my mind that the appellant was guilty of murder. It is noticeable that the appellant, when examined in the Session Court, did not deny that he had confessed before the Magistrate: nor did he deny that he had beaten Tikua. He pleaded that he did not know whether he had or had not, because he had taken handia. This was also his defence before the Committing Magistrate in which he admitted the assault upon his brother but said he was drunk. The main witnesses of his guilt were the appellant's wife and a near relation and they were no doubt confronted with a very difficult and trying situation. It is only natural that they should try as far as possible to do what they could for one so nearly related, and the evidence given by both of them before the Committing Magistrate as well as the evidence of Khurloo given at the trial abundantly corroborate the confession made by the appellant and leave no doubt in my mind as to his guilt.

It was contended that the statements made before the Committing Magistrate were not admissible as substantive evidence in the case and that a conviction could not be based solely upon such evidence. For this proposition the case of Queen-Empress v. Jeochi was relied upon. In that case there was no evidence before the Court to prove the guilt of the accused except the statements made by some of the witnesses when before the Committing Magistrate, and Bannerji, J., as the witnesses had given a diametrically opposite version before the Sessions Judge, refused to convict upon such evidence. In the later case of Emperor v. Dwarka Kurmi the same learned Judge, when sitting with Aikman, J., explained that in the earlier case he did not intend to hold that such depositions were wholly inadmissible, and having regard to the clear language of section 288 it could not be held that statements made before the Committing Magistrate could not be admitted in evidence under the section. Again the Madras High Court in Queen-Empress v. Doraswami Aiyyar held that under section 288 of the Code, the Court is not restricted to admitting the evidence of a witness duly taken before the Committing Magistrate merely for the purpose of contradicting that witness when giving evidence in the Session Court, but that the section was intended to enable the Court to read the previous evidence as substantive evidence at the trial where, for the purposes of justice, the adoption of such a course was found necessary by the Judge. A similar view was also expressed by the Bombay High Court in Maruti Joti Shindle v. Emperor, and in my opinion the section clearly intends that the evidence taken before the Committing Magistrate where the witnesses produced are examined at the subsequent trial may be treated as substantive evidence in the case. No doubt it is a matter for the discretion of the Judge whether he thinks that such evidence should be used in the interests of justice. At the same time I consider that many cases may arise in which it would be extremely dangerous to rely upon such evidence where witnesses have produced themselves before the Sessions Judge altogether unworthy of credit. In my opinion the learned Judicial Commissioner rightly admitted the evidence in this case. It must also be observed that it was not the only evidence which corroborated the appellant's confession. That of Khurloo as given in the Session Court was strong corroboration of the fact that the appellant struck his brother with some sort of weapon.

The only other point argued before us was that the appellant might not have been aware that the blow which he struck his brother was only likely to cause his death, or that he might have inflicted the blow under a grave and sudden provocation which deprived him of his self-control. From first to last in this case there is no suggestion of any grave or sudden provocation: indeed the evidence shows that the quarrel between the brothers was not violent or heated or that anything in the nature of a fight arose between them before the act was committed: nor is it possible to believe that any one, using a weapon, such as that which was used in this case in inflicting the wound which the deceased man received, could fail to realize that his act was so imminently dangerous that it must in all probability cause death or at least such bodily injury as was likely to cause death; and I can find no circumstance which should lead us to interfere either with the verdict or the sentence. The appeal is accordingly dismissed and the sentence confirmed.

Mullick, J.:— I have no doubt that the accused committed culpable homicide by causing the death of his brother, Tikua

From the evidence of the accused's cousin, Khurloo Oraon, in the Session Court it appears that on Friday, the 15th December last, he was on a visit to the accused. The deceased Tikua did not share in the meal but sat afterwards with the witness and Gansa in the verandah of one of the huts. Khurloo says that suddenly Gansa struck Tikua on the head with something which he did not see and that Gansa then went away. But in the Court of the Committing Magistrate on the 3rd January, 1923, this witness said that Gansa and the deceased began quarrelling, that Gansa then took up his balua, struck the deceased on the head with it and ran out of the house; he also admitted that the accused's wife, Mussammat Budhni, was sitting in the verandah at that time. In the Session Court the witness denies that there was any quarrel; at the same time lie asserts that what he said before the Committing Magistrate was true, though he cannot explain why the statement that Gansa and the deceased began quarrelling appears in the Magistrate's record. As to his denial that Mussammat Budhni was in the verandah he, when confronted with his statement before the Committing Magistrate, explains that Budhni was sitting in the verandah of another room.

The Investigating Officer, Ghulam Haider, who took the statement of Khurloo on the evening of the 16th December, states that Khurloo corroborated the statement made to him by Mussammat Budhni which clearly speaks of a quarrel between Gansa and Tikua with regard to the division of the paddy crop. Again at 9 p.m on the 18th December the accused made a confession before Mr. Sharling, First Class Magistrate, in the sub-jail at Gumla, the record of which runs as follows:

Warnings. I am Magistrate. I warn you that if you have anything to say, think over, consider and then say. Don't speak false or don't speak anything tutored by any man.

Question—What do you wish to say?

Answer—There was a division between my brother Tikua and myself. I struck him with a balua on his head. We are 8 members including my children. Tikua is along with his mother. He picked up a quarrel for his share. I have no motive in saying this. Nobody has tutored me. He took two annas while I have 1½ annas of land.

On the 4th January the accused was examined by the Committing Magistrate and the record of his statement runs thus:

Question—Did you assault your brother Tikua with balua, on his head?

Answer—Yes, I was drunk.

Question—Did you make this statement (Confession Ex. 6, and read over to the accused before me)?”

Answer—Yes.

In these circumstances I do not think that there can be any doubt that the statements made by Khurloo to the Sub-Inspector and to the Committing Magistrate are more correct than those made by him before the Sessions Judge. That he was present and saw the assault is common to both sets or statements, and his denial in the Session Court that there was any quarrel is clearly false and fails to explain the cause of the assault.

It is curious, however, that nothing was asked from the witness as to what he did after the assault. If he had been questioned on the point he might perhaps have given valuable information as to the conduct of the accused, but in my opinion his evidence sufficiently proves that there was a quarrel between the accused and the deceased in consequence of which the accused inflicted the injury which caused the death of Tikua.

The learned Vakil for the accused contends that Khurloo's statement before the Committing Magistrate is not admissible in evidence because the accused did not cross-examine him. The record does not show why the witness was not cross-examined in the Committing Magistrate's Courts but there is no reason for supposing that the accused was deprived of the opportunity of cross-examining the witness. There is nothing to show that he was in any way prevented by the Court from exercising his right of cross-examination.

The only other eye-witness is the accused's own wife, Mussammat Budhni. She too has given evidence in the Session Court which is at variance with her evidence before the Committing Magistrate.

She states in the Session Court that Tikua and the accused took their meal together and that her husband went to bed and that she does not know what happened to Tikua, but that next morning she found Tikua unconscious in the verandah with a wound on his head.

Before the Committing Magistrate, on the 3rd January, 1923, she admitted that the two brothers began to quarrel about the division of the paddy crop and that her husband struck the deceased on the head with a balua which was in the verandah and that the witness, Khurloo, was then present.

She was the first person examined by the Sub-Inspector, Ghulam Haider, on the 16th Decomber and she then gave a slightly fuller account of the occurrence adding that when she questioned her husband he replied that he had assaulted his brother with the balua thinking it to be a lathi.

Ghulam Haider deposes in the Session Court that she handed a balua to him saying that it was the weapon with which the assault has been committed.

The learned Vakil for the accused objects to the admissibility of Budhni's statement to the Sub-Inspector on the ground that it is a statement made in the course of an investigation and therefore inadmissible by reason of section 162. On the other hand the learned Assistant Government Advocate contends that it is an entry in an official book prescribed by section 154 of the Code and that section 35 of the Indian Evidence Act applies. To this the learned Vakil rejoins that the real first information in the case, i.e, the information upon which the Sub-Inspector took cognizance of the offence and commenced investigation was the statement of the chaukidar, Rup Singh, which was given at the thana at 4 p.m on the 16th December and which ran as follows:

“Rupsingh chaukidar of Bangoleya came and reported that this day morning while he was returning from Harakh Ahir's house of Bngaucha with Harak, Tikua Oraon's mother of Bangoleya said to him that her elder son Gansa Oraon assaulted his younger brother Tikua last evening while they were under the influence of handia, with a tangi; he went there along with Harak and saw Tikua Oraon who has got blood stained wound on his head and asked Tikua as to who assaulted him, but he gave no reply.”

The Sub-Inspector explains that he did not trust this information and that he did not commence the investigation till he had visited the locality and taken the statement of Mussammat Budhni.

In my opinion the investigation had already commenced when the statement of Mussammat Budhni was recorded; and the learned Vakil's contention must be accepted.

The word “information” is not defined but the definition of “complaint” throws some light upon its meaning. “Complaint” is defined in section 4(h) as an allegation made to a Magistrate with a view to his taking action that some person, whether known or unknown, has committed an offence. In my opinion an information is a corresponding allegation made to a police officer and this view seems to me to be supported by the language used in section 112 of the Code of 1872 (Act X of 1872) which provides for the entry in the official register, not of informations but of complaints. I think then that if the allegations made are in the nature of a complaint the Police Officer must record them as an information under section 154, and the writing will attract the provisions of section 35 of the Evidence Act; and if, as he seems to be entitled to do, the Police Officer should record more than one information relating to a cognizable offence they will all share the privilege of being exempt from the disability imposed by section 162 of the Criminal Procedure Code. In every case it is for the Court to decide whether the communication is an information in this technical sense and whether and when the police investigation had in fact begun.

The question then is whether in the present case the investigation had begun before Budhni's statement was recorded by the Sub-Inspector. In my opinion it had for the reason that Budhni's statement was not made to the Sub-Inspector with a view to taking action; on the contrary from Rup Singh's evidence it is clear that no one in accused's house was willing to come forward as the accuser and I am satisfied from the facts of this case that Budhni's statement was certainly not that of a voluntary informant. It is then clear that although the chaukidar's information was hearsay the Sub-Inspector did in fact take it as an information under section 154 and that he had already commenced his investigation when he recorded the statement of Budhni.

Therefore the writing (Ex. 1) is not legal evidence.

But the exclusion of the document does not affect the decision in this case; for Budhni's deposition before the Committing Magistrate clearly shows that the assault took place on account of a quarrel about land and that she witnessed it. The Sub-Inspector has given evidence under section 157 of the Indian Evidence Act which corroborates that deposition and her explanation in the Session Court that the statement and the deposition were made under the influence of fear cannot in the circumstances be accepted.

It is again to be regretted that no attempt was made either in the Committing Magistrate's Court or in that of the Sessions Judge to elicit from this witness any information as to the accused's movements during the remainder of the night. Rup Singh, however, deposes that when on the morning of the 16th he went to the accused's house the accused would not allow Tikua to be taken to the police nor would he go there himself. The only other inmate of the house, on the night of the occurrence, was Mussammat Bauni, the mother of the accused, but she states that she came home late and was taken straightaway to bed and that it was not till the following morning that she saw the wound on Tikua's head.

Realizing the prime importance of reducing the value of the accused's confessions the learned Vakil contends that having been retracted in the Session Court they themselves require corroboration. Now in the Session Court the accused, while admitting the two previous statements made to the Magistrate, said that he had been beaten by the police and that having been under the influence of liquor he knew nothing about the assault. In my opinion the statement made by the accused to the Committing Magistrate on the 4th January, 1923, was not tainted by any coercion or undue influence and it is conclusive corroboration of the confession of the 18th December, 1922; it proves satisfactorily that the accused did assault his brother.

In this later statement he added the plea of drunkenness but it is clear there is no substance in it. The only direct evidence on this point is that of Budhni and she states that Gansa and the deceased had drunk handia in the morning but not with their evening meal. The chaukidar also states in his information to the police that deceased's mother had informed him that the assault had been committed under the influence of drink. Giving the fullest weight to this evidence it goes only to show that the accused had taken alchohol in the course of the day, but the onus of proving that he did not commit the act with the intention of causing death or injuries sufficient to cause death is upon him and he has declined to give any explanation or evidence in the Session Court. There is no evidence whatsoever that the accused was not in a position to formulate the intention to kill or to cause injuries sufficient to cause death. As to the quarrel there is no evidence of its suddenness and no provocation has been proved which would reduce the offence to one less than murder.

The result is that, in my opinion, the accused is guilty of murder.

As for the motive, the evidence of Dasain and Sukhan shows clearly that a dispute had been going on between the deceased and the accused and that the deceased wanted a division of the family lands because he wished to marry.

Finally an appeal has been made for mitigation of sentence, but having regard to the callous manner in which the accused behaved after the occurrence, it is impossible to allow the plea. The evidence of Dasain shows that after the assault the accused came to him and said that he had done wrong and complained that he was feeling cold. He did not explain what he had done but he borrowed a covering from Dasain which was recovered the next day from the accused's house. Nothing is known as to what he did during the remainder of the night, but it does not appear that he made any attempt to assist Tikua or that he showed any contrition. On the following morning the accused declined to allow the deceased to be taken to the thana and it was not till the police arrived that the deceased was despatched to the hospital at Gumla.

In my opinion the sentence of death should be confirmed.

Appeal dismissed.
Sentence confirmed.