Patna High Court
Lalji Dusadh vs Emperor on 5 May, 1927
Equivalent citations: 106IND. CAS.698, AIR 1928 PATNA 162
JUDGMENT B.K. Mullick, Acting C.J. 1. This case comes before us on a reference under Section 374 of the Code of Criminal Procedure by the Sessions Judge of Muzaffarpur and also on appeal by the prisoner Lalji Dusadh alias Lalji Mallah. 2. The appellant is alleged to have robbed and killed a young man named Abdul about 8 P.M. on the 9th November, 1926. For the robbery he was charged under Sections 392 and 397 of the Indian Penal Code and tried by a Jury of five. For the offence of murder he was charged under Section 302 of the Indian Penal Code and tried by the Sessions Judge with the help of the above Jurors sitting as Assessors. 3. The unanimous verdict of the Jurors in the trial for the offences under Sections 392 and 397 was that the appellant was guilty. The opinion of the Assessors on the charge of murder was to the same effect. 4. The learned Sessions Judge, agreeing with the Assessors, has sentenced the appellant to death for the offence of murder. Agreeing with the Jurors he has also found the appellant guilty of the offences under Sections 392 and 397 but he has passed no separate sentence. 5. The appellant is thirty years of age. His home was in Mauza Mushari in the District of Muzaffarpur and he belonged by birth to the Mallah caste. About two years before the murder he was outcasted in consequence of an intrigue with a Dusadh woman named Kanchania who lived in Mauza Madhopur in the same District and he became a Dusadh. He lived with her for two or three months in Madhopur and then emigrated to the District of Dinaj pur taking her with him and one infant child. Later his mother joined him with his other child and thereafter for 5 or 6 months in 1926 he worked as a labourer in the service of one Anjor Sahai in Mauza Nashipur is the District of Dinajpur. 6. The deceased Abdul was twenty-five at the time of his death. He came to Dinajpur when he was quite a child and worked there for about twenty years. He was a Goala by caste and the name given to him by his parents was Munia, but he became a Mussulman later on and took the name of Abdul. He lived at Nashipur and worked first as a grass-cutter and then as an agricultural labourer. 9. On the 8th November Lalji with his wife, mother and two children started from Dinajpur for Madhopur. Abdul accompanied them and the evidence is that Lalji told him that he would get him married as he had no wife. At about 11 A.M. on the 9th the party arrived at Shekra Station which is ten miles from Madhopur. There was some trouble about Abdul's ticket. Apparently it could not be found and the result was that he had to leave his bundle behind containing some brass utensils, a chaddar, some clothes and some rice. 10. We have no evidence as to the subsequent movements of Abdul till about 9 P.M. when he arrived bleeding from several wounds on the head and body at the bathan (cattle pen) of Hitan Missir of Salaha which is about one mile from Madhopur. Adhin Goala, who has a neighbouring bathan and had come out to feed his cattle, saw Abdul go and sit in Hitan Missir's bathan. Adhin's cries brought Hitan Missir to the bathan. The chaukidar Chauhuddi was next fetched and other people came. Whether Abdul was able to make any coherent statement is a matter of cantroversy in this case and will be discussed later. The President Panch, Ramphal Tiwari, was then fetched and drew up a short report which he handed over to Chauhuddi. Chauhuddi arrived at the Muzaffarpur Police Station at 7 A.M. on the 10th and laid an information before the Writer Head Constable, Sudhist Narayan Singh, who was in charge. The Head Constable arrived at Salaha about 8 A.M. and found that Abdul was dead. He sent the body to Muzaffarpur for post mortem examination and was engaged the whole day in making investigations. 11. On the bank of a circular piece of water called a "man" 250 paces from the bathan of Hitan Missir, the Head Constable found large patches of blood and a bundle containing two nets, some cotton thread, a pen-knife, a razor, a medicine battle and a dhoti. Near the bundle was a small stick made of jute wood. It is in evidence that the nets belonged to the appellant Lalji. 12. On the 11th November, the Sub-Inspector of Muzaffrpur took charge of the case and the appellant was arrested about 1-30 p.M. In consequence of a statement made by him, his wife Kanchania delivered up to the Sub-Inspector Rs. 39 and gold coin of the Muhammadan period in India which she was carrying upon her person. Also in consequence of information given by the appellant the "man" was searched, and in water, about thigh deep a heavy hasua was found. 13. On the 13th the appellant was produced from Jail before a Deputy Magistrate at Muzaffarpur in order that his confession might be recorded. The appellant, however, did not make a confession but he made an exculpatory statement in which he admitted that he had come with Abdul to Shakra and had then walked with him as far as the village of Titra (four miles from Shakra) where he had parted company with him. According to the appellant Abdul said that he was going to Muzaffarpur but it does not appear that Abdul had any home of his own at Muzaffarpur. The appellant says his mother halted on the 9th November in the house of a Dusadh at Titra. Where he and his wife slept on the night of the 9th there is nothing to show, but on the 10th Abdul says he slept at the house of Sirtaj Singh of Madhopur. 14. It appears that the Police found Kanchania in the house of her father at Madhopur on the 11th and, on information given by her, Lalji was found in a kharour (field of high grass) in Madhopur about half a mile or a mile from that house. 15. I do not think that there is any reason for doubting that the deceased Abdul came with Lalji from Dinajpur where they had been working together and that he was last seen in his usual health at Shakra Station about 11 A.M. on the 9th November. 16. The "man" on the bank of which the blood was found is on the way from Shakra Station to Madhopur. It is on the boundary between Mamas Baikutpur and Salaha and is about one mile from the house of Kanehania's father. It is 6 or 7 miles from Shakra and 2 or 3 miles from Titra where the appellant says he halted for a little time with Abdul. There are no houses anywhere near. The blood on the ground has by analysis been found to be human. 17. The witnesses Adhin and Hitan who next saw Abdul live in Salaha. Those who came afterwards live either in Salaha or Baikutpur or Madhopur. 18. Girdhari and Anjor, the two Dinajpur witnesses, identified as Lalji's the two nets found in the bundle which wag discovered near the blood patches on the bank of the 'man'. It may be said that one cannot rely on this identification as there do not appear to be any special marks, but, on the other hand, the accused was originally a fisherman by caste and would be expected to know how to make nets and there is nothing to show that the two Dinajpur witnesses are deposing falsely. Girdhari and Anjor also establish that the gold coin handed over to the Police on the 11th by Kanchania belonged to Abdul. It is an old Badshahi coin and not likely to be easily mistaken. Girdhari deposes that Abdul told him that he had bought it from a man called Kalhu Nonia for Rs. 26 and that he wanted to sell it; also that he had bought it to have it threaded to wear round his neck. Anjor also identifies the coin. The man Kalhu Nonia from whom the coin is alleged to have been bought has not been found. 19. With regard to the hasua found in the "man" on the 11th both Girdhari and Anjor identify it as the appellant's. They say that, although it is an ordinary hasua, they recognize it by the handle and by the blade and that Lalji used to cut bamboos with it in Dinajpur. It is a heavy weapon and capable of causing the injuries from which Abdul died. 20. These injuries were five severe wounds on the head and two slight wounds on the right shoulder. The Civil Surgeon deposes that death was due to shock and hemorrhage caused by the wounds, especially those which caused the fracture of the skull. 21. Except the statement of the deceased which is alleged to have been recorded by the President Panch, Ramphal Tiwari, there is nothing to show where the deceased lived. In this statement it is recorded that he stated that his home was at Madhbalia, Thana Masrakh, District Chapra. If that is correct, then Shakra was not the station where Abdul would, in the ordinary course, have alighted and there is no reason why he should have gone to Muzaffarpur. It will be remembered that the appellant in his statement before the Magistrate on the 13th November said that he last saw Abdul in Titra when Abdul said that he was going to Muzaffarpur. I think this statement is only partially correct and that Abdul was with him up to the time of the assault. There is no evidence to show where the appellant spent the night of the 9th and I think the prosecution might with advantage have called Kanchania even though she is the appellant's wife. The appellant stated in his statement before the Committing Magistrate on the 22nd December, 1926, that he went to Sirtaj Singh on the 10th. This man might also with advantage have been called and so also Ramdhani, the father of Kanchania. If the prosecution did not consider that these witnesses could be relied upon to speak the truth, they should have asked the Court to examine them and the witnesses could have been cross-examined by both sides. 22. The trial was also defective in another respect. I find that the inquest report which the Writer Head Constable drew up immediately on arrival at the bathan of Hitan Missir states that the name of the deceased was not known. As the evidence given in Court is that before he died the deceased gave his name, his father's name and his address to the President Panch, the Writer Head Constable should have been, asked the reason for the omission in the inquest report. He should also have been asked why, if it was known then that Lalji was the man who had committed the murder, no attempt was made to arrest him on that day. The Writer Head Constable appears to have been very active in examining witnesses in the neighbouring mauzas, for he deposes that he did not return to Muzaffarpur till midnight. The prosecution should also have given evidence as to when the Dinajpur witnesses were examined for the first time by the Police so as to show that the dying declaration alleged to have been made by Abdul could not have been fabricated to accord with any information obtained from these witnesses. 23. The above omissions on the part of the prosecution have thrown considerable doubt upon the genuineness of the dying declaration made by the deceased and the learned Judge has not relied upon any of them; but I think there is internal evidence to show that the witnesses who depose to them are not intentionally giving false evidence. In the first place none of them are men of the appellant's caste. It is contended that the appellant had to leave his village be cause he had become a Dusadh and had formed an intrigue with Kanchania; but that did not affect men like Adhin Gope, Hitan Missir, Ohauhuddi Gope, Dwarka Gope, Pirthi Kandu, Jag Lai Koeri, Bishun-deo Missir, Nabu chaukidar (a Mussulman) and the President Panch, Ramphal Tiwari. 24. Adhin and Hitan who were the first to question the deceased, depose that Lalji's name was mentioned then; but Chauhuddi chaukidar does not support this and in his information at the Police Station he does not mention Lalji at all but merely states that the deceased had said that he had been attacked by his companion who had snatched away his necklace. The learned Judge has explained to the Jury and the Assessors that probably Adhin and Hitan were speaking from inferences drawn from facts subsequently ascertained and were actuated by a mistaken zeal in the cause of public justice. 25. We know that Chauhuddi was at the Thana at 7 o'clock in the morning of the 10th so that he must have left home at the latest about 3 o'clock. He says in his first information that the President gave him the report at 11 P.M.; but he must have got it earlier because the President deposes that the second statement was made about half an hour after the first and in this document the President writes that it was recorded after the chaukidar had left. Abdul died after the President came home. There is no evidence as to the hour. Nabu chaukidar deposes that he was left in charge and that Abdul died soon after the President left. 26. The medical evidence shows that it was not impossible that the deceased might have lived for three or four hours; but that no definite opinion can be given. 27. I think the evidence shows that the first statement was recorded about 10 o'clock and the second about half past ten and that Chauhuddi chaukidar had by then already left with the first report. It is clear from the first information that Chauhuddi must have left for the Thana before the man died. The chaukidar was not asked when he arrived at the Thana. The first information states that it was recorded as soon as the chaukidar arrived, but it appears from the chaukidar s evidence that he must have arrived during the night or that he halted somewhere on the road. The chaukidar states that he left after the Panch went home; but this is, in my opinion, a mistake. I have no doubt that all that the deceased did say to those who came before the chaukidar left for the Thana was that he had been attacked by his companion and that a gold haulduli was snatched from his neck. A "haulduli" is a necklace of stones and a gold haulduli is obviously a misnomer for a gold coin worn as a locket; but the chaukidar had to make the best of what the deceased said and it was either his mistake or the deceased's. The chaukidar also states that by his conversation the deceased appeared to be a man from another part, but that he could not state his name and address. I think the chaukidar spoke the truth in his information to the Police and that up to that time Lalji's name had not been mentioned. This is further corroborated by the written report sent by the President in which the President says merely that the wounded man could not give any satisfactory reply to his questions. 28. The second report written by the President has been attacked by the defence as a pure fabrication. This report shows that the deceased gave his name as Abdul and his father's name as Somer Ali, and his home as Mauza Madhbalia, Thana Masrakh, District Chapra, and that the deceased had been possessed of Rs. 62 and one mohur worth Rs. 26 and that his assailant was one Lalji whose house was in the District of Muzaffarpur. 1 cannot believe that a man of the President's standing and so many disinterested witnesses could have deliberately assisted in the fabrication of a piece of false evidence such as this. The President's explanation is that the man was given a drink of water after the chaukidar left and then revived sufficiently to give these details. If these details had not been given I do not see why Lalji was arrested at all on the 11th. It certainly seems to be a fact that on the 10th the President told his chaukidars to keep Kanchania under observation and if he knew nothing then about Lalji's connection with the deceased his action cannot be explained. Further, the Writer Head Constable himself deposes that he got the second report at "10 o'clock in the morning on arrival at the village. The value of the gold mohur is put down as Rs. 26 in the second report audit is extremely unlikely that the President put down this figure out of his own head; the same applies to the figure Rs. 62 which was given as the amount which Abdul brought from Dinajpur. The pries of the gold mohur was not known to any one except the two Dinajpur witnesses and they appear to have been examined by the Police long afterwards. It is also difficult to see how the President got the deceased's father's name and address unless it was given by the deceased himself. There is a village called Majhaulia but no village called Madhbalia and Majhaulia is now no longer in Thana Masrakh. If the President had fabricated the document he would not have made a mistake about the name of the village and the Thana, The circumstances show that the information given in the second dying declaration was obtained from the deceased. 29. There is, of course, the fact that the Writer Head Constable did not put down the name of the deceased in the inquest report and also the fact that the did net arrest Lalji on that day. In the absence of any explanation, the only conjecture that I can make is that he did not trust the accuracy of the second report and of the witnesses who supported it. 30. In my opinion the learned Judge has erred on the side of over-caution and both the reports drawn up by the President are genuine. 31. But, apart from the statements made by the deceased, the circumstantial evidence is quite sufficient to support the conviction. 32. The deceased came with the appellant as far as Shakra and started from that station in his company. He is not seen again but his hasua is found in the "man" one mile from the house of the appellant's father-in-law. The appellant's bundle is found on the bank of the "man" and the earth close by is stained with human blood. Immediately upon arrest on the 11th the appellant makes a statement in consequence of which the deceased's gold coin is found in the possession of the appellant's wife and is given up to the Police at his request and the accused's hasua is found in the "man." Also the appellant gives no account of where he went after he parted company with the deceased and where he slept on the night of the 9th; and his statement that he left the deceased at Titra must be false. 33. The learned Vakil for the appellant has attacked the evidence regarding the finding of the hasua. He says that Hira Dusadh, the man who got into the water and found the weapon, is at enmity with the appellant and put the weapon there, It is suggested that Hira is the headman of the Dusadhs of Madhopur and bears a grudge against the appellant for having misconducted himself with Kanchania. There is no evidence to support this suggestion. The evidence conclusively shows that when he was asked by the Sub-Inspector where the weapon was, the appellant took the Sub-Inspector to the "man" and the weapon was found after some delay. The learned Vakil objects to the admissibility of that part of the statement which refers to the weapon as the one used for attacking the deceased; but, in my opinion, Section 27 of the Indian Evidence Act is quite clear upon this point. It is contended on the authority of some cases that the prosecution is only entitled to prove that the accused in answer to a certain question gave information which led to the discovery of the weapon; but common sense requires that the discovery should be connected with and be relevant to the investigation. The omission to connect the weapon with the offence would render the provisions of Section 27 of the Indian Evidence Act wholly nugatory. The whole confession of a prisoner in Police custody cannot, of course, go in, but where the confession includes a statement that a weapon was used for committing the offence charged, that part of the confession can certainly go in if it leads to the discovery of the weapon. The most recent case on this point is In re Sogiamuthu Padayachi 93 Ind. Cas. 42 : 27 Cr. L.J. 394 : A.I.R. 1928 Mad. 638. 34. For the same reason evidence could have been given to show that the appellant stated immediately upon arrest that he had given the deceased's gold mohur and money to his wife. But as the record stands at present all we have got is that the appellant made a certain statement and that in consequence of that statement the gold mohur and Rs. 39 were given up by Kanchania. 35. But even on the record as it stands the discovery of the gold coin in Kanchania's possession taken with the other evidence in the case conclusively shows that the appellant was the person who caused the death of the deceased. 36. The learned Vakil has also taken a point that it was not permissible to the Grown to have the statement of the appellant recorded under Section 164 of the Code of Criminal Procedure on the 13th as the statement was not a confession. The answer to this is that the accused was sent up to have his confession recorded and that he gave the Police to understand that he would make a confession. After a night in Jail he changed his mind, and when he appeared before the Magistrate it was open to him to say that he would make no statement; but he did not follow this course; he was warned and notwithstanding that he proceeded to make a statement. This statement is certainly evidence of conduct. 37. A further legal point is taken with regard to the dying declarations. 38. It is contended that so far as the charges for the offences under Sections 392 and 397 are concerned the dying declarations are not admissible under Section 32(1) of the Indian Evidence Act inasmuch as the cause of the deceased's death does not come in question in the trial of those charges. It is contended that on this point the Indian law is the same as the English Law and that a dying declaration as to the cause of the death is only admissible when the causing of the death is the subject of the charge. I cannot agree with this view. The words of Section 32 are very wide and it is not necessary that the charge should be one of homicide. The evidence as to the cause of death was relevant to the charge of robbery and consequently, the cause of death, that is to say, the assault committed by the appellant, came in question in the trial. Before the Indian Evidence Act was enacted it was held in Queen v. Bissorunjun Mookerjee 6 W.R. Cr. 76 that there was no necessity in India for following the very narrow rule of English Law and that a dying declaration could be used as evidence in a charge of rape. One of the illustrations to Section 32 of the present Indian Evidence Act expressly provides for such evidence where the charge is not culpable homicide but rape. 39. Moreover, in this case the dying declaration was also admissible under Section 8 of the Indian Evidence Act as a part of the res gestce. A statement made by the deceased immediately after the robbery regarding the robbery and also regarding the assault committed in the course of the robbery was admissible though the person who made it cannot be called to depose to it on oath. The truth in Sections 8 and 32 of the Indian Evidence Act may overlap in some cases, but they provide for different and distinct conditions. A statement, for instance, which would not be admissible under Section 8 may be admissible under Section 32. 40. The result, therefore, is that, in my opinion, the Assessors and the Jury were right in the view which they took of the guilt of the appellant. The appellant is guilty both of robbery and murder. Having regard to the injuries there can be no doubt that it was his intention to cause such injuries as would in the ordinary course cause death. His motive was robbery and he appears to have attacked his victim from behind without giving him a chance of protecting himself. I agree with the learned Sessions Judge that the sentence of death is the only possible sentence and the order of the learned Judge must, therefore, be confirmed. 41. The conviction for the offences under Sections 392 and 397 are also affirmed but it is unnecessary to pass any separate sentence for these offences. 42. The appeal is dismissed. Wort, J.
43. I agree.