Patna High Court
Jiubodhan Bhuian vs Emperor on 28 February, 1917
Equivalent citations: 39IND. CAS.991, AIR 1917 PATNA 475
JUDGMENT Chapman, J.
1. This case comes before us on a reference by the Judicial Commissioner of Chota Nagpur, under Section 374 of the Code of Criminal Procedure. There is also an appeal by Jiubodhan Bhuian. Three persons named Lochan Chamar, Bhajua Bhuian and Jiubodhan Bhuian were charged with the murder, or in the alternative with the abetment of the murder, of one Tibhia Chamar. Lochan Chamar has been acquitted; Bhajua has been sentenced to transportation for life upon the conviction of murder and Jiubodhan has been convicted of the murder and sentenced to be hanged.
2. The trial was with the aid of assessors. The assessors were both of opinion that the evidence was false and that the accused should be acquitted. The deceased Tibhia Chamar was shot in the evening of the 9th of September 1916, two gharis after sunset, as he was corning out of his house to go to his machan to watch his fields The evidence upon which the two convictions are based consists of the evidence of two persons who saw Jiubodhan and Bhajua together, Jiubodhan with a gun in his hand upon the night previous to the occurrence, of the evidence of another witness who saw them pass on the night of the occurrence, and of the evidence of Bhajua's father Ramjiwan, who says that on the night of the occurrence the accused Jiubodhan cams and fetched his son and that he saw them meet Lochan near the witness' house. Jiubodhan had a gun and that on Bhajua returning he informed the witness that Jiubodhan and Lochan had killed the deceased. There are also confessions by Lochan and Jiubodhan. In order to assess the value of this evidence it is of importance to carefully consider the history of the manner in which this evidence was obtained. The murder took place, us I have said, in the evening of the 9th September. The first information was carried to the Police Station, 18 miles away, by the village chaukidr on the 10th. At that time nobody was suspected. The first information merely recites that the murdered man was a professional wizard. The Sub-Inspector arrived on the evening of the 10th and ascertained that the widow of the murdered man did not suspect anybody of the murder. The Sub-Inspector was transferred and was succeeded by another Sub-Inspector named Parmeshwar Dayal on the morning of the 12th. He was not able to obtain any evidence either on the 12th or the 13th; on the 14th he obtained a statement from the malik of the village to the effect that he had overheard a quarrel between Lochan Chamar and the murdered man about 8 or 9 days before the murder. The malik who was examined does not appear to have been able to say what the quarrel was about. On the 15th, after midday, the Sub-Inspector obtained the evidence of two persons, named Soma and Bhutu, of a village Chhechani, a mile or two distant to the effect that on the night preceding the murder they had seen Jiubodhan and Bhajua pass, Jiubodhan with a gun. In the same afternoon the witness Jiubodhan Pattak of the village Sinjo, close to Chhechani, gave evidence to the effect that upon the night of the murder, he had seen Jiubodhan and Bhajua pass coming from the direction of the village where the murder took place, Jiubodhan with a gun in his hand. They passed along the path to the village of Baglar where Bhajua lives. Later that afternoon the evidence of one Sheonath Singh, a Barahil, was obtained, who stated that he had lent a gun to the accused Jiubodhan. That afternoon the houses of Jiubodhan, Bhajua and Lochan were searched and in Bhajua's house there were found a few shot. Thereafter Bhajua and Lochan were arrested on the 15th, On the morning of the 16th Jiubodhan was arrested and Bhajua, Lochan and Jiubodhan were sent into Daltonganj, a distance, by road of some 28 or 30 miles. On the evening of the 17th their statements, which amounted to a confession in the case of Lochan and Jiubodhan, were recorded by a Magistrate. On the 17th evidence of motive was obtained to the effect that Lochan had some years ago lost several of his children and that he attributed this to the supernatural powers of the deceased Tibhia and that there had been a punchayet in the village two years before on that account. Later still on the 21st of September, the evidence of Bhajua's father Ramjiwan was obtained, which was to the effect that Jiubodhan had come to fetch Bhajua on the night of the occurrence armed with a gun; that they bad met Lochan near the witness' house and that Bhajua, on his return, had reported that Lochan and Jiubodhan had shot the deceased. So far as the confessions are concerned the effect of them is very much weakened, if not entirely destroyed, by the evidence of the witnesses who say that the original statements upon" which Bhajua and Lochan were arrested were obtained by inducements given by the Sub Inspector to the effect that nothing Would happen to them if they gave information. There is also a d discrepancy both between the two confessions of Lochan and Jiubodhan and between those confessions and the evidence. Jiubodhan says that he was asked to murder Tibhia because Tibhia had destroyed Lochan's men and cattle. 'Lochan, on the other hand, supports the prosecution case that he desired the murder of Tibhia because of the deaths of several of children. There is a farther discrepancy between the confession of Lochan and the evidence in regard to the question whether it was Bhajua who fetched Jiubodhan, or whether it was Jiubodhan who went and fetched Bhajua, as told in the evidence of Ramjiwan. Bhajua's statement to the Magistrate that Tibhia was on a machan when he was shot is untrue. This mistake is more 'consistent with a slip in reciting a prepared story than with forget fulness of an actual fact. Then in regard to the evidence independent of the confession, it is import-ant to notice that the evidence of Ramjiwan, the father, was not obtained until the 21st, some twelve days after the occurrence, after there had been evidence that his son had been seen on the night before the murder and on the night of the murder in the company of Jiubodhan who was armed with a gun. It was after the Police had found some shot in a box in the house of which Bhajua had supplied the key, and after Bhajua bad made a statement to the Magistrate in which he had admitted that he had accompanied Lochan and Jiubodhan. The evidence of Ramjiwan appears to be directed towards exculpating his son; the evidence must have been given under great pressure in the circumstances of the case, his son being in great peril at the time. This evidence is not entirely consistent with itself on the important question, in what circumstances exactly Bhajua made the statement to him on his return. It is also inconsistent, as I have pointed out, with the confession of Lochan. No motive is suggested why Jiubodhan should join in the murder of Tibhia. The suggestion in the confessions and on the part of the prosecution is that Jiubodhan was a shikari and was willing to undertake this murder upon payment, but that suggestion is not supported by any evidence. Ramjiwan has never spoken to Lochan and only came to know him by sight less than a year before, when Lochan started cultivation in the village in which Ramjiwan resides. The case for the prosecution also involves the supposition that Bhajua and Jiubodhan started in broad daylight, Jiubodhan armed with a gun, for the purposes of this murder. Ballar, where Bhajua resides with his father, is some four miles distant from Jaidu where the murder took place at two gharis after sunset. There is no particular reason for disbelieving the evidence of the witnesses who say they saw Jiubodhan and Bhajua together at night--Jiubodhan armed with a gun; but even so, it could not be said with absolute conviction that the witness Jiubodhan Pattak, who did not give his evidence until some six days after the murder, was right in saying that it was on the night of the murder that he saw the two pass. The evidence of these three witnesses is the only evidence to which, in my opinion, credence can be attached, and it is clearly insufficient to support a conviction, especially in regard to the fact that all the witnesses say that Jiubodhan was constantly about with a gun, being a shikari. I feel unable to rely upon the evidence of the father Ramjiwan given twelve days after the occurrence under such serious circumstances. The statement said to be made to him by Bhajua was not relevant against Jiubodhan. The evidence of the confession is vitiated by the fact that inducement was held out and the confession of Jiubodhan is not consistent with the case for the prosecution. It may be true that Lochan has this ground of enmity against Tibhia and that there was a village punchayet on that account, but there is nothing to connect either Bhajua or Jiubodhan with that cause of enmity, if it be true, and I am of opinion that the evidence is insufficient to support the conviction of murder. I would accordinly allow the appeal of Jiubodhan, set aside the conviction and sentence and direct that he be set at liberty immediately.
3. Bhajua has not appealed. It may be that he was deterred from doing so by the risk, which he may have thought, was involved of a sentence of death. If that be so, it might be a case for interference by the Local Government.
Roe, J.
4. I agree. If the confessions be disregarded, the evidence upon the record falls very far short of proof of the guilt of the accused and indeed would only raise in my mind a very vague suspicion that Bhajua may have had something to do with this crime. This suspicion might possibly extend to Jiubodhan, for the reason that either on the day before the occurrence or on the day of the occurrence itself Jiubodhan was seen in the company of Bhajua. I am of opinion that the confessions were rightly disregarded. In the first place, the statement made by Bhajua was not a confession at all and should not have been put on record under Section 164. In the second place, as I understand Section 164, Clause 3, a Magistrate is bound to question the accused closely as to his motives in making a confession, and if he fails to do so he has no jurisdiction to say that he is satisfied that the confession is voluntarily made. He has, therefore, no jurisdiction to record it as a Magistrate. It is in evidence that there was a Police Officer standing within sight and hearing of the accused at the time when the confession was recorded. In my opinion the confessions were made in the presence of a Police Officer and not having been taken in accordance with Section 164 are inadmissible in evidence, apart from the fact that they were, as the learned Judge has said, very possibly made with a view to please the Police and so escape the consequences of the suspicion attached to them. I venture to think that the casual manner in which Mr. Ksitish Chandra Sirkar approached the task of recording statements which were intended to result in the hanging of the parsons making them is most deplorable.