1. This is an appeal by Sheo Dina, Kachhi, who has been sentenced to death under Section 302, I.P.C., by the learned Sessions Judge of Banda, and there is also a reference for confirmation of that sentence. The person alleged to have been murdered is Mt. Bari Bahu, the mother-in-law of the accused. She lived at Ajnar where there is a police station and the accused Sheo Dina lives at Ari, a village two miles from Ajnar, with his wife Mt. Bhaoni, daughter of Mt. Bari Bahu. It is common ground that on the 23rd June 1932, Mt. Bari Bahu and her daughter started to go from Ari to Ajnar. The daughter had become ill and had sent for her mother to take her to her mother's house. It is alleged by Mt. Bhaoni that the accused was unwilling to let her go. It is also common ground that on the night of the 23rd of June at 9 p.m., Mt. Bhaoni and Sheo Dina were taken out of a well which is half way between these two village? and is situated, in the fields of the village of Khoi. They were taken out by the villagers of Khoi. The representation made to the villagers who took them out was that they had accidentally fallen into the well and it was also stated that Mt. Bari Bahu had fallen in and that she had been drowned. Accordingly at 9 p. m., on that night a report was made at the thana by Ganwa chaukidar, who was the chaukidar both of Ajnar and of Mouza Khoi. His report was in accordance with the information which had been given that Mt. Bari Bahu had been accidentally drowned. In the report he did not make any mention of the accused and his wife having been both taken out of the well and the report indicates that only Mt. Bari Bahu fell into the well and was drowned.
2. The order given on this report was that as this was a panchayat village the chaukidar was directed to make a report for the completion of a formal panchayatnama. learned Counsel objected to this procedure as not being in accordance with Section 174(4), Cr.P.C., but we have ascertained that the procedure was in accordance with the rules of 16th December 1925, Rules 34 and 35 of the rules under Section 75 of the United Provinces Village Panchayat Act, Act 6 of 1920. The procedure, therefore, was perfectly correct. The panchayat took place next morning and the dead body of Mt. Bari Bahu was taken out of the well and the panchas found that there were seven injuries inflicted by a hatchet on the head of the corpse and a report was made in the thana at 9 a. m., on the 24th of June to this effect stating further that Sheo Dina accused had murdered Mt. Bari Bahu on account of her loose character. It also appears that an inquest was held by the police after this under the provisions of Section 174(4), Cr.P.C. This is stated in the evidence of Uma Shanker, head constable, who was then second officer, p. 25, line 41. The statement of Mt. Bhaoni was recorded by a magistrate under Section 164, Cr.P.C., on the 26th of June and the statement which she then made was consistently made by her in the Court of the committing Magistrate and in the Sessions Court. She stated that her husband overtook her and her mother and suggested that they should have a drink of water at the well in question. Mt. Bhaoni refused saying she was not thirsty. The accused then said, "Draw water and give me to drink". The accused had a hatchet in his hand and he assaulted Mt. Bari Bahu and inflicted six or seven wounds with hatchet. He then threw the deceased into the well, and pushed Mt. Bhaoni into the well also and said. "You also go and die with our mother." Mt. Bhaoni clung on to the side of the well and her husband got into the well and proceeded to push her down under the water intending to drown her. She said to her husband that there would be no one to look after her small daughter if she had been drowned and her husband then said that he would not kill her if she would swear on the head of her daughter that she would not tell what happened, and say that they had fallen into the well accidentally while drawing water. At this stage people came up and she and her husband shouted out and they were taken out of the well.
3. Her story has not been taken down very clearly by the Magistrate on 26th June as he records. "I told those men the whole story of killing my mother". learned Counsel for defence has argued that the words "those men" refer to those men who took her out of the well, but she also states in the line below. "Then those persons took both of us to Ajnar police station". The taking to the police station was on the morning of the 24th of June and the Magistrate has not clearly recorded whether the witness meant to refer to the persons who took her on the morning of the 24th or persons who took her on the evening of it he 23rd, when she says that she told certain person the whole story of killing her mother. We do not think that there is any contradiction established by learned Counsel on this point. The story of Mt. Bhaoni is corroborated in certain details by the evidence of the witnesses Ganwa chaukidar, Pula, Tanta and Gaya Prassad sarpanch who said that next morning there was a hatchet found close to the well, and this hatchet has been identified as the hatchet of accused by Ram Sahai,. the chaukidar of the village of the accused. This witness states that the accused left the village with the hatchet in his hand on the day in question. The statement of Mt. Bhaoni was made on the 26th of June under Section 164, Cr. P.C, in which she described the injuries as having been inflicted by a hatchet or axe. The medical examination was made on the same day, 26th. June, and the medical examination also confirms the evidence of Mt. Bhaoni, as the medical witness states in his deposition on p. 15 that in his opinion the six incised wounds could have been caused by some blunt and heavy sharp-edged weapon such as an axe. There was also a contusion in the middle of the forehead and a fracture of the right temporal bone. This was under one of the external injuries which was an incised wound. The medical witness was cross-examined with a view to show that the injuries might have been caused "if the well had sharp-edged rocks under the water" and the deceased fell into it. The medical witness stated:
All the seven injuries could not be caused all at once by one fall as they are situated in different parts of the head. In my opinion looking at the nature of all the injuries I can say that it is not possible to have such injuries by a fall. I say so because the injuries are incised wounds.
4. It is obvious that although sharp rocks might cause an incised wound, a fall on such a rock would produce not only an incised wound but a contusion, and there are no contusions connected with the six incised wounds mentioned in the medical report. Now the cross-examination of the doctor took place on the 11th of August 1932, in the Court of the committing Magistrate. Therefore on that date the defence had formed the theory that the injuries might have been caused by a fail into the well where there were sharp-edged rocks under water. A necessary part of proving the case for the defence would have been evidence to show that there were sharp-edged rocks in that well under the water. This is a matter which could have been quite easily established either by cross-examination of the prosecution witnesses or by calling witnesses for the defence or by asking for a local inspection by the Court. The defence did not attempt to show the existence of any sharp-edged rocks in this well by any of those methods. Not one single question was asked in cross-examination of any prosecution witnesses as to the existence of sharp-edged rocks, although witnesses gave evidence who stated that the persons had been taken out of the well in their presence and the head constable, Uma Shanker, gave evidence that he made a sketch of the well Ex. 30 and gave a description of the well. The defence called some witnesses but they did not ask any of their witnesses as to whether there were any sharp-edged rocks in this well. It is obvious, therefore, that the defence have entirely failed to prove that there were sharp-edged rocks in that well, and that this part of the defence is a mere theory founded on the imagination of the defence counsel. We cannot accept such a theory which could easily have been supported by evidence for defence, which defence have deliberately failed to produce. As to the story of falling into the well the evidence of Uma Shanker, head constable, is that the plinth of the well is about two feet high. It is, therefore, extremely improbable that people would fall into such a well accidentally. Further, as regards sharp-edged rocks in the well it should be noted that this is, according to Mt. Bhaoni, a well in the fields presumably used for purposes of irrigation. Irrigation in this country is conducted by means of a leathern bucket and it would not be possible to use a leathern bucket in a well in which there were sharp rocks. The medical evidence, therefore, confirms the evidence of Mt. Bhaoni very strongly. It is, therefore, established that the accused and his wife and his mother-in-law were all in a well, that the accused and his wife came out of that well and the accused represented that his mother-in-law had been drowned. Subsequently it was found that his mother-in-law had died from injuries inflicted on her by an axe. There is the evidence of Mt. Bhaoni that the accused caused those injuries to his mother-in-law. The case for the prosecution is in our opinion overwhelming and we hold that the accused was rightly convicted under Section 302, I.P.C.
5. There remains the question of sentence. It is urged that the accused is young man of twenty two years of age. But he is shown to have acted with deliberation because the evidence of the chaukidar of his village, Ram Sahai, shows that an hour after his wife and her mother-in-law left, he started after them with an axe in his hand. He must, therefore, have premeditated this murder. Under these circumstances we do not consider that we can reduce the sentence. Accordingly, we confirm the sentence of death passed on Sheo Dina and we direct that the sentence be carried out according to law. There is also a charge under Section 307 for the attempted murder of Mt. Bhaoni. The evidence of the attempted murder consists of the statement of Mt. Bhaoni. We see no reason why that statement should not be accepted. She made her statement to the magistrate under Section 164, Cr.P.C. without any undue delay on the 26th of June and her statement has been consistently put forward by her before the Committing Magistrate and before the Sessions Court. Accordingly, we also confirm the finding of the lower Court and the conviction and sentence of five years' rigorous imprisonment under Section 307, I.P.C., passed on Sheo Dina, and we dismiss the appeal.