Patna High Court
Ghanshyam Singh And Ors. vs Emperor on 26 April, 1927
Equivalent citations: 107IND. CAS.305, AIR 1928 PATNA 100
JUDGMENT Mullick, J.
1. This is an appeal against an order made by the Sessions Judge of Chapra sentencing the appellant Ramkhusi to rigorous imprisonment for ten years for an offence under Section 304 of the Indian Penal Code. The appellant, Ghanshyam, has been sentenced to rigorous imprisonment for three years and a fine of Rs. 300 for an offence under Section 304 read with Section 109 of the Indian Penal Code. The appellant Ramautar has been sentenced to rigorous imprisonment for one year for an offence under Section 323 of the Indian Penal Code.
2. The case of the prosecution is that Ghanshyam, who was the President of the Panchayat of Mauza Sabalpur, set out about 1-30 on Saturday, the 27th November last, for the house of a Kayasth named Ramlagan who resided in another part of the same village. Ghanshyam was accompanied by his relatives, Ramautar and Ramkhusi, who resided in the same house with him, Ramkhusi was armed with a spear and Ramautar and Ghanshyam were both armed with lathis. It is said that owing to the conduct of Ramlagan, which will be presently explained, Ghanshyam was annoyed and intended to punish Ramlagan that day. The evidence as regards the previous acts of Ramlagan is this: Ramlagan has a nephew called Ramchandra, a boy of 9 or 10 years of age. Ramlagan alleges that this boy has come under the influence of Audh Behari Singh, the son of Sheodhar, and of Baliram, the younger brother of Ghanshyam Ramlagan did not approve of Ramchandra's association with these two youngmen and had been objecting for some time. Shortly before the 25th November Ramchandra disappeared from home. On the 25th November Ramlagan went to the fair at Sonepur which is close to Ghanshyam's house. There he found Ramchandra in the company of Baliram and Audh Bihari. An altercation took place between him and these two young-men and he alleges that he gave them a beating.
3. It is suggestsd that Ghanshyam was annoyed at Ramlagan's impertinence and that he intended on the 27th November to take revenge upon him.
4. There are four eye witnesses in this case, Deoki Singh, Sukhan Singh, Rambaran Singh and Rambadan Singh, and they all depose to seeing Ghanshyam and his two companions coming from the direction of Ghanshyam's house and meeting the deceased Pardip, also a Babhan of the same village but apparently belonging to a separate faction.
5. It is alleged by these men that Pardip made some slighting remark about Ghanshyam and twitted him about his abusing his authority as the President of the local Panchayat. Pardip next abused Ghanshyam in foul language who thereupon ordered his companions to beat Pardip. Ramautar then struck Pardip with his lathi and Ramkhusi delivered a mortal blow with his spear. It appears that owing to some peculiarity of conformation the deceased Pardip had his liver on the left side instead of the right and Ramkishun's blow penetrated his liver and intestines and caused almost instant death.
6. The evidence further is that the village chaukidar Bhajan arrived on the scene almost immediately afterwards but was unable to obtain from Pardip any account of who had caused his injuries. It is said that Pardip was alive but speechless. A stretcher was brought and, according to some witnesses, Pardip died before being placed upon the stretcher, and, according to others, he died on the way to the Police Station. Under the orders of Bhajan, Roshan Dusadh another chaukidar of the village then started for the Police Station which is about three miles from Sabalpur. Roshan arrived at the Police Station about 2 o'clock and made a communication to the Sub-Inspector which was recorded as a first information, although whatever he knew about the occurrence was mere hearsay.
7. In the meantime, Deoki Singh and Sukhan Singh set out with the body of Pardip Singh for the Thana and arrived there some time about 4 o'clock.
8. The Sub-Inspector, after having recorded Roshan's information, set out on horseback for Sabalpur and arrived there about 3-30 P.M. He stayed there for about half an hour and then went back to the Police Station in order, as he says, to take the dying declaration of Pardip in case he should be alive. He arrived at the Police Station about 4 p.m. and found that Pardip was dead and that Deoki and Sukhan were there with the body. At 5 p.m. he took the statements of Deoki and Sukhan and then learnt for the first time that Ramkhusi had killed the deceased with a spear thrust under the orders of Ghanshyam and that Ramautar also had joined in the assault. The Sub-Inspector immediately hurried back to the village and proceeded to the house of Ghanshyam. He did not find any marks of violence in the house; but on the way to that house he noticed at the house of Sheodhar Singh, the gomashta of the village, traces of an attack of some kind. He then went to the house of a chaukidar named Raja Singh and there took down the statement of Ramautar who had several injuries upon his person. In consequence of what Ramautar said, he next sent for Sheodhar and took down a statement from Sheodhar containing a more or less detailed account of an attack upon his house by a large number of villagers. At 7 or 7-30 p.m. he took down the statements of Rambaran and Rambadan. The investigation was continued for many days after that and the result was that the Police rejected the account given by Sheodhar and accepted the account given by Deoki, Sukhan, Rambaran and Rambadan and sent up the present appellants for trial.
9. The four assessors distrusted the prosecution evidence and found all the accused not guilty.
10. The learned Sessions Judge in a careful and elaborate judgment has come to a different conclusion and has sentenced the accused as stated above.
11. Now before us the evidence of the four material witnesses has been examined very carefully and subjected to very destructive criticism by the learned Counsel for the appellants.
12. But after having considered all the matters brought into prominence in the course of the cross-examination of the prosecution witnesses in the lower Court and in the address of the learned Counsel before us, I think on the whole that the learned Sessions Judge has taken a right view of the evidence. The fact is that in this case the accused have too unwisely relied upon the abstract doctrine of the burden of proof. They had a definite counter-case which they put forward before the Police on the very evening of the day of the occurrence. It was a clear-cut case capable of precise proof. Ghanshyam was a well-to-do man and was the head of the village. Sheodhar, the man who was attacked, was the gomashta of the landlord. The village consists of a thousand houses and Ramlagan, the leader of the Kayasths, represents a very small minority. It was the easiest thing in the world for Ghanshyam to produce conclusive evidence before the trial Court of the attack upon Sheodhar's house and of the manner in which Pardip came by his death. Instead of that the appellants have relied upon suggestions, indications and improbabilities for the purpose of discrediting the sworn testimony of the eye-witnesses. It is true that the prosecution must prove their case in the first instance before the accused can be called upon to make their defence; but when evidence has once been given on oath by witnesses who profess to have seen the occurrence and who directly implicate the accused and ascribe particular acts to them, I do not think it will avail the accused merely to rely upon a discrepancy here and a discrepancy there or upon the absence of adequate motive or on indications that there may be exaggerations in the prosecution story. I think in this case something more was expected of the accused and they should have called witnesses to prove on oath that Pardip was attacked not on a path near the houses of the witnesses Rambadan and Rambaran but in the house or outside the house of the gomashta, Sheodhar. The fact is that there is only one version before us of which there is any legal evidence, and cross-examination has not materially shaken it.
13. As to what Sheodhar's account was, we have no idea whatever. It is said that the first information was allowed to be read out at the trial, but we have no knowledge of the contents of that information. I thought perhaps that we should be able to gather from the statements of the accused what their precise case was; but I find that in his examination in the Sessions Court on the 12th February Ramkhusi was asked why he had been implicated by the witnesses who had deposed against him. His answer was: "They have falsely implicated me out of malice. I shall make further statement in writing." He also stated that he was not in the village at all on the day of occurrence; but no evidence has been given to prove alibi.
14. Ramautar also was asked the following question: "Would you at all like to say if Pardip was struck with a bhala to your knowledge?".
15. Answer--"No, Sir."
16. Then he was asked: "Did you appear as a witness for Sheodhari Prasad before the daroga and supported Sheodhar's story by saying that you had witnessed Pardip being struck with a bhala?".
17. Answer--"I will not say anything further orally. Whatever I have to say I will submit in writing."
18. Ghanshyam was asked: "Is it a fact that you admitted your presence at the occurrence and supported the case of Sheodhar made to the daroga as his witness who had seen such an occurrence?".
19. Answer--''No, Sir, I shall file a written statement."
20. The written statements filed do not give any details. They merely state that the accused have been falsely implicated owing to enmity and that the real truth as to the cause of Pardip's death and the place of the occurrence has been suppressed.
21. In this unsatisfactory state of affairs I think that unless it can be shown beyond all doubt that the witnesses for the prosecution have broken down, their testimony is entitled to be accepted as a substantially true account of the occurrence.
22. Now the first of these witnesses is Deoki Singh. This man says he was going to the house of Bhajan chaukidar to borrow a tarwa, which is a small basket attached to a plough for the purpose of distributing grain along the furrows made by the plough. His cross-examination shows that he has been previously convicted and that he has been a party in many civil and criminal cases; but there is nothing in the cross-examination which established beyond all doubt that this man could not have been at the place at the time of the occurrence. As a matter of fact he appeared before the Sub-Inspector at the earliest possible time and as Pardip had no wife or child, there was nothing unusual in his accompanying Sukhan who was a relation of Pardip's to the Thdna with the body. The witness has admitted in his cross-examination that at the time that he went to Bhajan's house for the tarwa, Bhajan's son was in the house and it is contended that this cannot be possibly true and that, therefore, his whole story must be false. Now, the day was a Saturday and Deoki says that the school closed early on that day. At one place he does say that the school closed at 4 P.M., but he qualifies this by saying that the school sometimes closed earlier. And it is a question whether the boy could have been at home at the time of the attack on Pardip. I cannot say that it is established beyond all doubt that the boy could not have left school earlier on that day than usual and been in his own house at the time that Deoki came to see his father.
23. Then as regards Deoki's statement to the Sub-Inspector, it is clear from it that Deoki knew about the dispute that had been going on between Ramlagan on the one hand and Ghanshyam's brother Baliram and Sheodhar's son Audh Behari on the other. The Sub-Inspector was cross-examined on the point and he said that he does not think that Deoki told him about the presence of Baliram at Sonepur on the 25th November; but Deoki asserts that he did tell the Sub-Inspector this and he is corroborated by the statement which he made to the Sub-Inspector at 5 p.m. Further he states that he heard Ghanshyam coming along with the two other appellants shouting that he would teach Ramlagan a lesson for having assaulted Baliram and Audh Behari.
24. The next witness is Sukhan Singh. This man was related to Pardip and he was going to his zemindar to get a settlement of some land and he deposes that Pardip abused Ghanshyam and that he was then assaulted. I have no doubt that the witness was present at the assault upon Pardip and it is to be noticed that he has the courage to admit that he chased Ramautar for some distance and struck him several blows with his stick.
25. It is contended on behalf of the appellants that Sukhan would never have dared to attack Ramautar in this manner; but Sukhan is a Babhan just as much as Ramautar is and although Ramautar was armed with a lathi and Sukhan only with a stick, I do not think Sukhan's statement must necessarily be rejected.
26. But the main objection advanced against the story of both Deoki and Sukhan is that they have introduced into their depositions details of the abuse that was uttered by Pardip against Ghanshyam. It is said that in their statement to the Police there was no mention of any abusive or filthy language. The Sub-Inspector, however, states that he did not consider it necessary to put down the actual words used and that he contented himself merely by making a memorandum to the effect that "hard words" were used by Pardip to Ghanshyam.
27. Sukhan was also subjected to a very rigorous cross-examination to show that he could not have passed along the path where Pardip was attacked in order to go to the zimindar's house; but I am not satisfied that the cross-examination had been driven home sufficiently. As far as I can see, it has not been shown that Sukhan should not have come by that path at the time alleged.
28. There are, however, two other witnesses who seem to me to stand on a much higher footing than Deoki and Sukhan and these are the two cousins Rambaran and Rambadan who occupied a house close to the tree near which the occurrence took place. These witnesses state that they had come home and were watering their cattle when the altercation between Ghanshyam on the one side and Pardip on the other began. No reason has been shown why they should have perjured themselves in this case. They are Babhans and it has not been shown that they have any special enmity against the accused. It is pointed put that if they had seen the occurrence chaukidar Bhajan would certainly have seen them there as soon as he arrived; but Bhajan states in his deposition that he saw 30 or 35 men and does not mention the names of Rambaran and Rambadan. The argument is inconclusive because Bhajan was not asked definitely whether these two men were present or not.
29. It is also argued that if these witnesses had been eye witnesses they would certainly have appeared before the Sub-Inspector either when he first arrived or during his second visit at about 5 or 5.30. This assumes that in this country witnesses will come forward to give evidence gratuitously out of a sense of public duty; but experience shows that here a person who has seen an occurrence will of ten leave the place as quickly as possible and that his first thought will generally be to say that he does not know anything about the case. As a matter of fact, Rambaran and Rambadan did appear before the Police at 7-30 P.M., and it has been suggested by the learned Counsel for the appellants that the reason for this was that they knew that Sheodhar had been examined and had implicated them and it was, therefore, necessary for them to give a counter-version for the purpose of meeting Sheodhar's case. In my opinion Rambaran and Rambadan were not concerned to account for Pardip's death, nor was there time to manufacture a false case. It is far more likely that if they had taken part in an attack on Sheodhar they would have denied all connection with Pardip. I do not think that sufficient reason has been shown for disregarding their sworn testimony in Court.
30. With regard to the witness Bhajan, it is to be noticed that he says in his examination-in-chief that he told Roshan chaukidar to go to the Thana and to tell the Sub-Inspector that a collision had taken place between the President's party and Sheodhar's party. That is nobody's case and is obviously false. On the contrary what Roshan did say was that a collision had taken place between the villagers on the one hand and the President and Sheodhar on the other. Bhajan does not explain now where he got his information. It is suggested by the learned Counsel on behalf of the Grown that Bhajan's evidence must be looked at with some suspicion as he was serving under Ghanshyam. I agree with this view and I do not think that his evidence can be accepted as satisfactory. The fact that he did not tell Roshan who had killed Pardip. or that Rambadan and Rambaran and Deoki and Sukhan had seen the occurrence does not, in my opinion, detract from the general value of the evidence of these four eyewitnesses. Deoki says that he told Bhajan that Ramkhusi was the man. Bhajan denies this. As Deoki was ready with this charge against Ramkhusi at the Police Station within three hours and as it does not appear that there was any time for his taking advice for the purpose of concocting a false story, I prefer to believe him rather than Bhajan. I also find that Roshan was present when Deoki and Sukhan made their statements to the Sub-Inspector and that Roshan made no attempt to set them right and to tell the Police that Pardip had been killed in an attack on Sheodhar's house.
31. The result, therefore, is that I agree with the learned Sessions Judge in believing that the four eye-witnesses are substantially speaking the truth in the Court.
32. It may be that the motive alleged was not adequate for so severe an injury, but it is impossible to speculate as to the sufficiency or insufficiency of motive for a criminal act. There may have been other matters of enmity between Ghanshyam on the one hand and Pardip on the other, or it may be that Ramkhusi acted under the excitement of the moment and delivered the fatal blow without thinking what he was doing. In this connection it has to be mentioned that Pardip was wearing wooden sandals. It is suggested that this part of the story is a fabrication; but we have the evidence of the Sub Inspector that as soon as he came to the place he found the wooden sandals on the road and that they were besmeared with blood. The fact that Pardip was wearing these sandals to some extent supports the case that he was not a member of a mob making a determined attack upon the house of Sheodhar.
33. As regards the damage to the house, the evidence is that the Sub-Inspector found that some tiles were dislodged from the roof and one of the pillars of the verandah was cut with a sharp cutting instrument and a picture in the verandah had fallen or been pulled down and the glass of the frame was smashed. He also found some blood marks upon the top of the plinth of the verandah about three feet from the ground. He suspected that in the yard in the front of the house there Were blood marks also; but the Chemical Examiner reports that no blood was found in the earth scraped from these places. But the bricks removed from the plinth showed that the smears thereon were human blood. The learned Sessions Judge thinks it possible that after Pardip received his injuries on the road a large number of villagers attacked Sheodhar's house and did the damage found by the Sub-Inspector. With regard to the blood, he thinks that it might have come from Ramautar's injuries. He also observes that between Sheodhar's house and the spot marked B upon the Police map there are no traces of any blood at all on the ground but that from B to G a distance of about 128 feet there were several patches, and that the theory that Pardip could not have been injured in Sheodhar's house gains some support from the fact that there are no blood marks between Sheodhar's house and the spot B. In my opinion the evidence in the case is consistent with the theory and on the whole we must hold the learned Sessions Judge's view of the guilt of the accused to be correct.
34. A point has been made with regard to the conviction of Ghanshyam. It is said that as he gave only the order to beat he cannot be held liable for the results of the act of Ramkhusi and that at most he can be convicted only of the offence of abetting Ramautar in voluntarily causing hurt; but having regard to the fact that Ramkhusi was armed with a spear and Ramautar was armed with a lathi and that Ghanshyam gave the general order to beat, I think it is a reasonable inference that he intended all the results that followed. Ramkhusi would not have attacked Pardip if it has not been for that order and this is the learned Sessions Judge's view and, in my opinion, it is correct.
35. The result, therefore, is that the convictions and sentences are affirmed and the appeals are dismissed.
Wort, J.
36. I agree.