Patna High Court
Jagwa Dhanuk And Ors. vs Emperor on 26 June, 1925
Equivalent citations: 93IND. CAS.884, AIR 1926 PATNA 232
JUDGMENT B.K. Mullick, Acting C.J. 1. The appellant Bhaghambar Rout alias Bhagwa is the father of the appellant Jagwa Dhanuk. It is alleged that these two appellants with the third appellant Rama Rout murdered a shop-keeper and money-lender named Ramdhani on the night of Thursday, the 12th February 1925. Ramdhani's home was in Mouza Dariapur but he had a shop at Gangto which is about three miles off by road. About 3 A. M., on the morning of Friday, the 13th February, Ramdhani left his shop telling his brother Gobind aged 16 that he would be back about 10 a. m. He was not seen again but his body was found in course of the day at a cremation ground at which there is a temple of Mahadeo and which lies in a jungle on a hill about four miles from Gangta. It was obvious that he had been murdered and information was given about 6. p. m. by Nasir Khan, chowkidar, to the Sub-Inspector of the Kharagpur Police Station. The Sub-Inspector arrived at the place of occurrence on the morning of the 14th. In consequence of certain information obtained from a zemindar named Babu Sailendra Nath Kar, who was spoken of in the trial as Sailu Babu, suspicion fell upon one Dallo Kumhar. 2. On the 16th February, Dallo was placed before the Superintendent of Police who had come to direct the investigation. It is said that he then made a statement the contents of which are not in evidence. On the 18th Dallo made a full statement in the nature of a confession to the Investigating Sub-Inspector Satya Kinkar Mukherji. He took the Sub-Inspector immediately afterwards to the cremation ground and showed him the way by which the deceased went with the three appellants and himself from the house of Ramuat Lauriya to the cremation ground. Dallo pointed out the in arks made by the iron shod heels of the deceased's shoes in a wet barley field belonging to one Bansi Rant. According to Dallo, the appellants were habitual thieves who disposed of their stolen property through the deceased and on the night in question Ramdhani had been decoyed by the appellants from his shop on a promise by the appellants that they would give him a considerable quantity of gold and silver. Dallo pointed out to the Sub-Inspector two hollows in the ground where the stolen property was said to have been concealed. He states that at the first place which is near a place marked on the Sub-Inspector's map as the Surdun Bandh, no property was found and that, therefore, one of the appellants said that it had probably been removed by the other members of the gangand that it would be necessary to go to the Mahadeo temple and to search the tank on the hill. The deceased was then taken to the tank and there he was attacked by Jagwa with a sindh katti (a piece of iron used by Indian burglars) by Bhagwa with a knife and by Ramu with a Santoli pharsa. Ramdhani was killed instantly and a sum of Rs 84, which was found on his person, was taken by Bhagwa. Thereafter Ramu took the handle off the head of the pharsa by knocking it against a stone and threw it away. Dallo pointed out the jungle into which the handle had been thrown and the evidence is that there the handle was found. Dallo also pointed out the place on the hill where Bhagwa gave Rs. 25 out of the Rs. 81 to Ramu. He himself was offered Rs. 5 which he refused on the ground that it was insufficient. Then a quarrel arose and the appellants prepared to assault him. He then ran away and he pointed out to the Sub-Inspector the route along which he returned. 3. After the discovery of the above facts from the confession of Dallo, the Sub-Inspector arrested Dallo and the appellants. On the same day he searched the houses of the appellants and found hidden away in an earthen pitcher in the house occupied by Bhagwa and Jagwa and by Naku, the brother of Bhagwa, a knife which was identified by Dallo as the weapon with which Bhagwa had inflicted the wound on the left side of Ramdhani's head. In the Committing Magistrate's Court Bhagwa admitted the ownership of this kuife but in the Sessions Court he denied it. I do not think there can be any doubt that the knife was found in his house and that it belongs to him. A short iron, weapon which might be ordinarily used for making holes in mud walls was also found in the same house; but Dallo says that this was not the sindh katti with which Bhagwa was armed. The pharsa, which Ramu is alleged to have used, has not been found nor has the sindh katti alleged to have been used by Jagwa. 4. The post mortem examination on the body of Ramdhani was made on the 15th February and it was then discovered that there were two wounds on the head which had been caused by a sharp instrument: 58 Ind. Cas. 929 : 47 C. 671 : 21 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr. L. J. 849. an incised wound 21/2 inches long by 1/3 inch, down to the bone behind the right ear and 75 Ind. Cas. 67 : 46 B. 958 : 25 Bom. L. R, 214 : A.I.R. 1923 Bom. 71 : 24 Cr. L. J. 867. a punctured wound inch by 1/2 inch by 1 inch deep in the left temporal region above the left car. The Police had apparently assumed that the wound on the right side of the head had gone right through to the other side, but the post mortem report shows that there were two separate wounds and that they were probably made by different kinds of weapons, the first a sharp cutting weapon and the second by a sharp pointed weapon. The skull at the back of head was extensively fractured and it was obvious that the head had been severely battered with a heavy blunt weapon. 5. The post mortem report is sought by the prosecution to be used as corroboration of Dallo's statement. It is urged that after his arrest on the 18th February Dallo was taken to Monghyr where he was kept in prison and that on the 26th he repeated his confession before Rai Krishna Bahadur, Deputy Magistrate, which was recorded under the provisions of Sections 164 of the Cr. P.C. 6. It is suggested that Dallo had no knowledge of the post mortem report and that the striking agreement between his account and the post mortem report in contrast with the original Police view is strong corroboration of the truth of his statement. 7. When placed upon their trial the appellants pleaded not guilty and alleged that a false case had been instituted against them by Sailu Babu who was the master of Dallo and had enmity with the zemindar of the appellants. 8. The four Assessors at the trial were unanimously of opinion that the appellants were guilty and the Sessions Judge of Monghyr agreeing with them has found the appellants guilty of an offence under Sections 302 of the Indian penal Code and sentenced them to death. 9. The case turns upon the evidence of the approver Dallo. He was offered a pardon on the 19th March and he was examined as a witness for the prosecution in the Court of the Committing Magistrate. There is no inconsistency between his confession of the 26th February, his deposition before the Committing Magistrate on the 19th March and his deposition in the Sessions Court. He states in his deposition in the Committing Magistrate's Court that he was produced before a Hakim who asked him if he had committed the murder with his own hands and as he denied it and began to relate the story which he is now telling the hakim declined to write and sent him away. This obviously refers to the Superintendent of Police before whom Dallo appeared on the 16th February. The Sub-Inspector tells us that on that date he made short notes of what Dallo stated but the notes have not been proved. 10. According to Dallo's evidence his association with the appellants commenced sometime about the middle of the year 1924. He had been borrowing money from a thief named Shyamlal Kahar who, in June 1924, advised him to associate with Jagwa if he wanted money. He states that in consequence of this he went with Jagwa and three others to the house of a Kunjra in Mouza Karikle and that Bhagwa burgled the house and brought out three bundles while he and the remainder of the party stood outside. Evidence has been given by Titu Kunjra that on the 1st November 1924, he reported a burglary at his house. 11. A point has been sought to be made by the learned Counsel for the appellants as to the discrepancy regarding the time of the burglary. Dallo says that it was about mid-night, but the First Information Report shows that it was about 4 a. m. The information recorded is not very clear and it would seem that the intention of the informant was to say that the burglary was discovered at 4 a. m. when the women of the house woke up. 12. According to Dallo, Jagwa would give him nothing out of the proceeds of this burglary. He also deposes to hearing about another burglary committed by Bhagwa and his gang in the District of Bhagalpur out of which he got nothing. He states that he was constantly asking Jagwa for his share but without success; and about January 1925, Jagwa informed him that he would be paid out of a burglary which it was contemplated to commit at the house of one Basdeo. Basdeo, however, had previously helped Dallo with small sums of money. Dallo partly through pique and partly out of gratitude gave warning to Basdeo and Basdeo removed his valuables from the house. This is corroborated by Basdeo's evidence. 13. With regard to Ramdhani, Dallo's statement is that the first dealings which he saw between him and any of the appellants was two days after the burglary at Titu's house when Ramdhani came to Jagwa and paid him a sum of Rs. 50 : he also says that four or five days later he again came to Jagwa's house and paid him Rs. 25. Dallo states that after this in order to silence his importunities Jagwa told him that Ramdhani owed him Rs. 5,000 or Rs. 6,000 on account of gold and silver made over to him and that when Ramdhani paid up, Dallo also would be duly paid; that he, Jagwa, Bhagwa and Ramu in the month of Kartick became exasperated at Ramdhani's delay in settling and that they conspired together to kill him and that he spent the whole of one night in Ramu's house with the three appellants because Ramdhani was coming there with money; but Ramdhani never came. 14. Next, in Falgun, that is in February, Dallo was again told by Bhagwa that Ramdhani was coming to Ramu's house on the following Thursday. It was agreed that advantage should betaken of that visit to kill Ramdhani and accordingly Dallo again went to Ramu's house. 15. Now Titu reported his burglary on the 1st November, 1924, and so the conspiracy to which Dallo deposes must have been formed shortly afterwards. His suggestion is that the appellants were so dissatisfied at Ramdhani's prevarications that they determined to make an end of him and so intended to get him to come to Ramu's house and then to decoy him to a lonely place far the commission of the murder. The plan succeeded and Ramdhani came on the 13th February and the three appellants and Dallo started oil with him telling him that, the stolen property for which he had come was near the Mahadeo temple. 16. With regard to the various places pointed out by Dallo along the route, the corroboration is not of much value because Dallo was a resident of the locality and the places were familiar enough to him; but there is one place of evidence to which some reference should be made. Dallo pointed out to the Sub-Inspector the marks of the heels of Ramdhani's shoes in Bansi Rout's field about two miles from Ramu's house. Now, undoubtedly, two heel-marks were found and the Sub-Inspector states that they fitted Ramdhani's shoes exactly. Unfortunately the casts which he dug up were damaged while in the custody of the Committing Magistrate and the Sessions Judge and the Assessors were not able to satisfy themselves as to the correctness of the Sub-Inspector's conclusion. It is curious that no heel-marks were found in the bed of the rivulet which the party crossed and which is immediately to the east of the barley field; but that may be because it is sometimes the practice of people in this country to take off their shoes when they come to a river. 17. The learned Government Advocate, however, before us has declined to place any reliance upon the identity of the foot-prints, because the evidence shows that the route taken by Ramdhani is ordinarily taken by people who go from Lauriya to the cremation ground and that the precise number of foot-prints were not noted down by the Investigating Sub-Inspector. But the finding of the handle of the pharsa is undoubtedly good corroboration of Dallo's story; and if it is believed that he had no hand in himself putting the handle there, it cannot be doubted that he was one of those who took part in the murder of Ramdhani. 18. The next piece of corroboration of Dallo's story with regard to his association with Shyamlaland Jagwa and Bhagwa is provided by an information given by a chowkidar to the Police on the 26th September, 1924. An entry appears in the station diary to the effect that Jagwa, Bhagwa and Shyamlal, who were notorious bad characters, were associating together. This corroborates Dallo's statement that he was told by Shyamlal to take the help of Jagwa if he wanted to make money. 19. Next there is the statement of Ramdhani's brother Gobind and of Khem Lal Lohar who prove that Ramdhani left his home at 3 a. M. on the morning of the 13th February. There is no reason whatsoever for distrusting this evidence. It is to be noted, however, that Khema states that Ramdhani was travelling from west to east. His direction would be from east to west; but the evidence does not make it clear whether the road at the place where it passes Khema's house, does not make a curve and does not run from west to east. 20. There is also the evidence of Sheo Narain, the cousin of Ramdhani and Gobind, that the appellants used to deal with Ramdhani and used to go to his shop and that Ramdhani also used to go to them. 21. The learned Judge was very favourably impressed with Dallo's behaviour in the witness-box and he was satisfied that he was a witness of truth. He appears, however, to have admitted the evidence relating to Dallo's association with the appellants for the purpose of committing thefts and burglaries and of Ramdhani's association with the appellants as a Receiver of stolen property with considerable reluctance on the ground that it was evidence of bad character which was not admissible under any circumstances. The position appears to have been misconceived. Evidence of bad character cannot be given for the purpose of showing that the accused were of such a disposition that they were likely to commit the crime charged. But that prohibition does not in any way affect evidence which is required to prove a motive for the crime or which is otherwise relevant. Learned Counsel for the appellants has taken the same objection before, us and has relied upon Emperor v. Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 21 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr. L. J. 849. and Emperor v. Sher Mahomed 75 Ind. Cas. 67 : 46 B. 958 : 25 Bom. L.R. 214 : A.I.R. 1923 Bom. 71 : 24 Cr. L. J. 867. But these cases are not relevant to the point before us which is whether it was open to the prosecution to prove that Dallo and the appellants and Ramdhani had been engaged in offences against property and that the quarrel which arose out of their association was a motive for the murder of Ramdhani. 22. It may be asked why should the appellants have taken Dallo with them on the night of the murder. It is in evidence that the appellants knew that Dallo had played them false with regard to the projected burglary in Basdeo's house and Dallo himself admits that he had been beaten several times by the appellants on this account and that when the dispute took place about the division of the money found upon Ramdhani immediately after the murder his previous treachery was brought up against him. In these circumstances, argues the learned Counsel, it is impossible that Dallo should have been taken. The reply, however, is that either Dallo knew too much of the appellants to be left out or it was considered necessary to involve him still further in order that his mouth might be shut for good. We can only speculate but it is possible that the appellants thought that if Dallo joined in the murder it would not be possible for him to make any disclosure without endangering his own life. However, that may be the fact remains that the Assessors were satisfied that Dallo's story upon this point was correct. 23. Then it may be asked why should Dallo confess at all. Unfortunately we have no information as to what steps were taken on the 14th and 15th to induce him to appear before the Superintendent of Police, nor do we know what statement he made to him, nor do we know what happened on the 17th. But there is evidence that Sailu Babu was taking a very active part in assisting the Police and it is possible that it was on information supplied by him that the suspicions of the Police were attracted towards Dallo and the appellants Dallo is evidently a person of weak character and upon his own admission he was treated by his accomplices with contempt. It sometimes happens that a criminal's courage fails him in the end and that he without any pressure or inducement gives out the whole truth. 24. There is also corroborative evidence given by Aklu that Dallo was seen coming along the Dariapur road about sunrise on the morning of the 13th from the east and that he carried Aklu's bundle for him as far as his house. This is also corroborated by a party of musicians namely Digo, Rohan and Balo who were going along the road from west to east. 25. Finally there is corroborative evidence that Ramdhani was in need of money and that on the 13th he borrowed Rs. 19 from witness Muralidhar. He also borrowed Rs. 50 from one Saggam Singh, but there is some doubt as to whether this loan was made on the 12th or a day or two before. In the Committing Magistrate's Court Saggam Singh said that he had made the payment on the 12th but in the Session Court he, said that it was one or two days earlier. These payments corroborate Dallo's statement that the appellants were pressing Ramdhani for money and also his allegation that a sum of Rs. 84 was found in Ramdhani's purse immediately after the murder. 26. Finally there is one other item of corroboration to which reference should be made. Four small note-books and 12 sheets of loose accounts were found in Ramdhani's pocket. There are numerous entries, says the Sessions Judge, in these account-books and papers showing petty transactions between the appellants and Ramdhani and in the notebook, Ex. IV, there is an entry showing against the name of Ramu Rs. 95 13-9 as "chupka" and, Rs. 32-11-8 as "sagri". Now sagri means open account and chupka means secret account. It is suggested that this latter entry relates to money paid to Ramu for stolen property. With regard to Dallo there are no entries but Sheonarain states that Ramdhani told him that Dallo' owed 21 maunds of paddy. Against' Naku, brother of Bhagwa, the entries amount to a total of Rs. 48. 27. I am satisfied that the entry against Ramu showing Rs. 95 odd due on account of "chupka" corroborates Dallo's story that Ramdhani was the Receiver of stolen property from the hands of Ramu. 28. Having, therefore, given the evidence my most careful consideration, I agree with the learned Sessions Judge and the Assessors that Dallo was a witness to the murder. He himself does not admit that he struck any blow but simply states that he kept watch. Now self-exculpation is always a reason for suspecting an approver's evidence but here the corroboration in other respects was such and the general demeanour of the witness was so satisfactory that the Assessors and the learned Judge had no difficulty in accepting Dallo's testimony and I agree with them. 29. But the authorities show that it is not sufficient that the approver should be corroborated with regard to the actual commission of the crime itself for such corroboration merely shows that he himself took part in the offence. Experience requires that the approver should also be corroborated in material points as to the part played by his accomplices. Therefore, it is necessary to see what corroboration there is to show that the appellants before us took part in the offence in the manner alleged by the approver. 30. The amount of corroboration under this head as in deed in respect of all corroboration of an approver's evidence must depend upon the view which the Court takes of the approver's character and of his general demeanour in the witness-box. Here the Court and the Assessors have found that in regard to the time, place and manner in which the crime was committed the approver has told the truth. That finding must naturally affect the quantum of corroboration required as to the remainder of his story One must also enquire what motive the approver had for concocting a false story. On behalf of the appellants it is urged that Dallo was the creature of Sailu Babu. Of this there is no evidence. Then it is urged that Sailu Babu is at enmity with the zemindar of the appellants. Of this also there is no evidence, and the defence that Dallo was a ready tool in the hands of Sailu Babu has, in my opinion, been rightly rejected by the lower Court. 31. Coming next to the actual items of corroboration upon which the prosecution rely we have first of all the evidence as to the movements of Ramdhani on the Wednesday and Thursday preceding the murder. The evidence is that about sunset on the Wednesday Gobind was coming back from the family house at Dariapur to the shop at Ganta and met Ramdhani at Lauriya. Ramdhani was then on his way home. About 9 p. m. Gobind set out on the return journey to his house and met Ramdhani near Ramu's house and saw him talking to Ramu. Ramdhani told him to go on and that he would be coming later. That night Ramdhani never came home at all and Gobind on going to the shop in the early morning of the 12th (Thursday) found, Ramdhani there. At mid-day the appellant Bhagwa came to the shop and had some conversation with Ramdhani. Gobind was not permitted to hear the conversation because Ramdhani told him not to listen and sent him off to Dariapur to purchase some articles for the shop. About half a pahar before evening (which would beabout 4p.M.), Gobind returned to the shop and he and his brother took their evening meal together. At 5 a. M. on the morning of the 13th Ramdhani got up and said he was going out. Gobind asked him where he was going and Ramdhani merely said he would be back at 10 A. M. Neither Ramu nor Bhagwa gives any explanation of the conversation with Ramdhani. Of course having regard to the fact that both Bhagwa and Ramu were old customers this evidence is not conclusive of guilt, but so far as it goes it is corroboration of the approver's story that the intention of the appellants was to decoy Ramdhani somehow or other to the house of Ramu on the night of Thursday. 32. Next there is the finding of the knife. There is, however, this to be said that knives of this description are common. Dallo, however, does swear that this was the knife with which Bhagwa was armed and there is the fact that Bhagwa attempted to deny his ownership of the knife in the Sessions Court. Then Counsel has argued that it is strange that when the sindh katti which was used by Jagwa seems to have been thrown away or concealed, Jagwa's father should have been so careless as to keep the knife. That, of course, is an argument which has weight, but I think that upon the evidence the identification is sufficient. The knife is one which could be used for domestic purposes and possibly Bhagwa either did not wish to part with it or thought that even if found it would not raise any inference of guilt against him. 33. The third item of corroboration against the appellants is the finding of the notebooks and the account papers in Ramdhani's pocket. This indicates that Ramdhani set out that night in order to settle accounts with Ramu, Bhagwa and Jagwa. On the other hand it is argued that there are other entries in the account-books and it is quite possible that Ramdhani may have gone out to visit some of his other debtors. The cumulative effect of the whole of the evidence is such that the hypothesis must be rejected. Taken by itself no item may be conclusive, but when the whole evidence in the case is considered I think the corroboration is sufficient. 34. Having regard to the time when the journey was made and the precautions which according to the evidence of Dallo, were observed by the appellants much direct evidence of the association of Ramdhani with the appellants on that night could not be expected. The question is whether the above evidence connecting the appellants with him is sufficient to satisfy us that it would be safe to act upon Dallo's account I think after consideration of all the circumstances that the answer is in the affirmative. 35. It may be said that Ramdhani was killed by foot-pads but that would not account for the finding of his body at the Mahadeo temple unless it was carried to that place from some other place where the murder was committed. The finding of the earring and the armlet are also inconsistent with such a theory. It was suggested in the lower Court, that Ramdhani was killed in the course of an intrigue. The answer is that there is nothing to suggest that he was a man of loose character. Further the simple answer to all these theories is, if Dallo is believed there is no place for any of them. 36. Finally the learned Counsel for the appellants who has evidently devoted much care to the preparation of the case and has argued it with fairness and ability has raised two points of law which require some discussion. 37. The first was as to the admission of the Dallo's statement to the Police on the 18th February. 38. Now only such portions of that statement have been admitted as led to the discovery of any fact. Section 27 of the Indian Evidence Act permits confessions to be admitted for this limited purpose. I think it must be admitted that Sections 162 of the Cr. P.C. of 1923 has altered the previous law so as to completely exclude statements made by witnesses during the course of an investigation, except for certain limited purposes not here material. The learned Counsel, however, argues that the prohibition also extends to the statements of the accused persons. Now comparing the corresponding provisions of the Code of 1882 and the relevant amendment made therein by the Codes of 1898 and 1923, I think it is clear that the statements of accused persons provided they do not amount to a confession are still admissible in law. To what extent the provisions of a special enactment such as the Cr. P.C. override the provisions of a general enactment such as the Indian Evidence Act must depend upon the language of the special Act, but reading the present Sections 161 and 162 of the Code, I think it is clear that the main object of the Legislature was to prohibit the use of the statements of prosecution witnesses as corroboration under Sections 157 of the Indian Evidence Act. The general provisions of the law with regard to the admissibility of statements made by accused persons like other admissions do not seem, in my opinion, to be affected. If it were otherwise, Sections 27 and 28 of the Evidence Act must be considered repealed. It surely cannot have been the intention of the Legislature to effect such a repeal by implication. It is important for the Court to know what was the defence made by the accused at the earliest moment. If Sections 162 is given the meaning which the learned Counsel new seeks to give to it accused persons would be most seriously prejudiced and the only object of Sections 163 of the Cr. P. C, would be to enable Police Officers to get clues for the purpose of investigating the charge. If that were the case the Court would be deprived of much valuable material for testing the truth of the case for the defence. To shut out corroborative evidence comprising statements made by defence witnesses during the investigating is prejudicial enough, but unless compelled to do so I do not think we ought to add to the prejudice by shutting out exculpatory statements by the accused; and if the amendment of 1923 does not operate to exclude such statements then Sections 27 of the Indian Evidence Act remains unrepealed. 39. The other point of law is that the confession recorded by the Deputy Magistrate on the 26th February is not legal evidence because the Deputy Magistrate who proved it read over his deposition himself and did not have it read over to him in the hearing of the accused. It is urged that the provisions of Sections 360 of the Cr. P. C, have been violated and that as the accused could not hear what the witness was reading there was no compliance with the law Although it has been held elsewhere that Sections 360 requires that the deposition of a witness shall be read over in the presence of the accused and that it is not sufficient to allow the witness to read it himself I do not think there is any authority in this Court to that effect. In the absence of any such authority I think that the deposition was legal evidence. 40. The result, therefore, is that upon a consideration of the whole of the evidence in the case we are not satisfied that there is any ground for interfering with the finding of the learned Sessions Judge. The case was tried with great care by the learned Judge and the Assessors who are all residents of the locality and well-acquainted with the conditions of life amongst the class to which the approver and the accused belong have come to the unanimous conclusion that the approver should be believed. In these circumstances the convictions must be upheld and the sentence of death which has been passed upon the appellants is affirmed. Jwala Prasad, J.
41. I agree.