Patna High Court
The State vs Ruplal Koeri And Anr. on 7 November, 1952
Equivalent citations: AIR1953PAT394, AIR 1953 PATNA 394, ILR 31 PATNA1037
JUDGMENT Narayan, J.
1. This is a reference for the confirmation of the sentence of death passed on Ruplal Koeri and Gobardhan Koeri. The condemned prisoners have preferred appeals which have been heard along with the reference. While the appellant Ruplal was charged under Sections 302 and 326 the appellant Gobardhan was charged under Section 302/109, Penal Code.
2. The prosecution case, as accepted by the learned Sessions Judge, may briefly be stated as follows. Accused Ruplal was originally a resident of village Gouchari, and the deceased Ramsaran Koeri was a resident of village Khutaha, Khutaha and Gouchari being adjoining villages. Accused Gobardhan is a resident of village Pasraha which is about four miles from Khutaha. Ruplal had incurred the displeasure of his co-villagers. He had enticed away the wife of one Mauji Mahto of village Gouchari, and the village people held a panchaiti in which the deceased Ramsaran, being the mukhia of his caste-men, took the leading part. As a result of the panchaiti the woman who had been enticed was sent to her father's place. The village people, however, had become so much annoyed with Ruplal that hip house was demolished and his homestead land was ploughed. The father of Ruplal had to bring a criminal case against Ramsaran and others on account of the demolition of the house, but the case could not proceed as the police submitted a final report. Ruplal had ultimately to leave his village, and he began to live in Pasraha in the house of the other accused Gobardhan who had married his sister.
3. The occurrence took place at about sunset time on 21-2-1952, and on that date the deceased Ramsaran along with his first cousin Adhik Koeri (P. W. 4) had gone to village Pasraha to negotiate with Jhaksu of village Pasraha for the marriage of the son of Adhik with the daughter of Jhaksu. In the afternoon they started for their own village, and- when they came near village Mallia which is about one mile from Khutaha and three miles from Pasraha they had to pass over a footpath which was situate between rahar fields. When they came inside the rahar field they noticed the two accused Ruplal and Gobardhan sitting in the rahar field at a short distance from the rasta or the footpath. The two accused ran towards them, and while Gobardhan caught hold of Ramsaran Ruplal began striking him with a chhura. He gave Ramsaran a few chhura blows, and when Adhik tried to save him Ruplal struck him as well with his chhura, Adhik sat down after receiving the chhura blow, and then Ruplal pierced his chhura into Ramsaran's neck, as a result of which Ramsaran dropped down dead. The two accused then ran away. Adhik had raised a halla, and shortly after the two accused had run away two persons of village Mallia brought the accused Gobardhan under arrest. Other persons also arrived at the scene of occurrence, and before all of them Adhik narrated how Ramsaran had been killed and how he had been injured by the accused. Adhik was taken to the police station on a khatia, and he lodged the first information report at 9 P.M. on the same date. The officer in charge of the Gogri Police station after recording the first information report sent Adhik to the Khagaria hospital and. examined the person's who had come to the thana along with him, Gobardhan who had been brought by the chaukidars to the thana was put under arrest. He was wearing a 'doria' half-shirt which contained a mark which looked like a blood mark. The half-shirt was seized by the Sub-Inspector, and he then started for village Mallia which is about three mile's from the police station. The Sub-Inspector arrived at the place of occurrence at about 10 P.M., and when he went to the rahar field he found the dead body of Ramsaran lying there. He found certain quantity of blood near the dead body which was lying at a distance of six steps only from the footpath. Some rahar plants also appeared to be stained with blood and other rahar plants were found damaged, At some distance from the rahar field was another field over which kurthi had been, grown, and there were some trampling marks in that kurthi field. The Sub-Inspector scraped the blood-stained earth, and he sent this blood-^tained earth along with the blood-stained leaves and the blood-stained shirt of Gobardhan to the Chemical Examiner. The report of the Chemical Examiner was that they were all stained with human blood. In spite of search the accused Ruplal could not he found, and processes under Sections 87 and 88, Criminal P. C. had to be issued against him. After the investigation was complete charge-sheet was submitted against the two accused.
4. The post-mortem examination on the body of the deceased was held by the Civil Assistant Surgeon of the Khagaria hospital at 4 P.M. on 22-2-1952, and on that very date he examined the injuries on the person of Adhik.
5. The accused had pleaded not guilty, and their contention was that the case against them was maliciously false.
6. The learned Sessions Judge as well as the assessors were of the opinion that both the accused were guilty. Though Gobardhan had been charged only under Section 302/109, he was convicted not only under Section 302/109 but also under Section 302/34, Penal Code, and because a sentence of death was inflicted on him under Section 302/34, no separate sentence was passed against him under Section 302/109, Penal Code. And Ruplal also, because he was sentenced under Section 302, was not separately sentenced under Section 326.
7. The conviction rests on the testimony of a single eye-witness namely Ahik Koeri, and the Counsel for the two accused rightly submitted that the evidence of this witness has to be scrutinised with great care. The most important criticism advanced against this witness is that he is a servant of one Budhu Ram Marwari, and it has been pointed out that not only he but P. W. 1 Sarafat Mia and P. W. 2 Kamal Markandey who are said to have arrested Gobardhan are also the servants of Budhu. But, I do not think the defence can gain anything by stressing this apparently strange coincidence when it has not been established by them that Budhu Ram has been ill-disposed towards either of the accused. The presence of Adhik who himself had received injuries at the place of occurrence cannot bs doubted. When his injuries were examined by the doctor at 12-30 P. M. on 22-2-1952 they were found to be about 18 hours old. The accused Gobardhan had been produced by the chaukidars before the Sub-Inspector at 9 P. M. on 21-2-1952 when the first information report was lodged, and Gobardhan's own statement shows that he had been captured by a Muhammedar and Kamal Markandey. He has admitted thai he was arrested by them when he was going along a track which he describes as "ekpareya rasta". The circumstance's thus go to support the prosecution story quite substantially, and there is no reasonable ground for discarding the evidence of Adhik Koeri (P. W. 4), Sarafat Mia' (P. W. 1), Kamal Markandey (P. W. 2) and Kiro Markandey (P. W. 3). The learned Counsel appearing for Gobardhan drew our attention to the order-sheet of the Sessions Judge dated 23-7-1952 which makes mention of a petition filed by the accused to the effect that though Adhik was not prepared to admit that he had engaged any lawyer in the case, two lawyers were assisting the Public Prosecutor. In this petition it was stated that Budhu Ram was really financing the litigation. This will not be a necessary ground for discarding the testimony of Adhik, and, as I have already said, the position of the defence does not improve in the least by urging that Budhu Ram had taken Some interest in this case.
8. The next criticism advanced against the evidence of Adhik is that though he says that Ramsaran left the village of Jhaksu at about 5 P. M., Jhaksu's own statement is that he left his hou'se at about 2 P. M., and that from his house they went to another village on their way home. Jhaksu is an old man aged 60 years, and both he and Adhik appear to be illiterate witnesses, inasmuch as their thumb-marks had to be taken against their respective depositions. At any rate these village people do not generally keep clocks or watches, and it will be a bit too much to expect that they can give a correct idea of time. There is no discrepancy as to the time of the occurrence, and the simple fact that the information could be lodged at 9 P. M. in spite of such serious occurrence and in Spite of the fact that Adhik must have been in complete distress after this event, lends considerable support to the prosecution version that the occurrence took place at about sunset time in. village Mallia. When Gobardhan was asked if he had seen the dead body of Ramsaran in the rahar field his reply was that one Mian (meaning Sarafat) and Kamal Markandey had caught hold of him and taken him near the dead body. He, as his admission shows,, was at that time going to a mahanth, and it seems manifest that when he was examined by the learned Sessions Judge he had no intention of mentioning any other time as the time of the occurrence. And when it was suggested to Adhik that Gobardhan was caught while he was going to village Mohini it was not suggested that the time was any other time than the one stated by the prosecution. And when it was suggested to Adhik that he had dispute with Gobardhan or Ruplal he boldly refuted the suggestion and asserted that never in his life had he any dispute with accused Gobardhan or accused Ruplal.
9. The third comment and probably the most substantial comment against the evidence of Adhik is that if his story is to be believed, Gobardhan's half-shirt will not have only one stain but many stains. It is true that Gobardhan's half-shirt was found to contain only one blood mark, though according to the prosecution story he remained catching the deceased to long as he was not felled to the ground. In this connection it is necessary to examine the entire statements of the witness as to the part played by Gobardhan. In answer to a Court question the witness stated that the "accused Gobardhan advanced towards Ramsaran and caught him from behind by his arm." His other statements are, (1) that the accused Gobardhan remained holding Ramsaran so long as accused Ruplal went on giving him blows; and (2) that Gobardhan caught Ramsaran and Ruplal began hitting him with a chhura. The first statement mentioned above actually reads as follows: "Accused Gobardhan remained holding Ramsaran so long accused Ruplal went on giving him blows after blows and ultimately drove his chhura into his neck."
The manner in which the last clause viz., the clause 'ultimately drove his chhura into his neck' has been recorded creates some doubt as to Gobardhan's holding Ramsaran till all the blows were inflicted on him. The assault could not have lasted long, and when according to the prosecution story Gobardhan had caught Ramsaran from behind the existence of only one blood mark is not such a strong circumstance as to lead us to hold that the evidence of Adhik is absolutely untrustworthy. In his evidence no doubt, Adhik has stated that Gobardhan had a lathi which he threw on the ground before catching Ramsaran, though there is no mention of this lathi in the first in formation report. But this is again a very minor discrepancy, inasmuch as no assault whatsoever is attributed to Gobardhan. Our attention was also drawn 1o the statement of Kiro Markandey that Adhik had stated before him that Gobardhan had caught both arms of the deceased, that Ruplal had driven a dagger in his 'panjra' and that when he had attempted to save the deceased Gobardhan had injured him with the dagger. It is really Ruplal who had inflicted the injury on Adhik, and Adhik nowhere has stated that Gobardhan had inflicted the injuries which were found on his person. The injury found on the person of Adhik appeared to have been caused by a sharp piercing weapon such as a dagger, and Adhik has nowhere stated that Gobardhan was carrying a dagger. The above statement of Kiro is either due to a confusion or for certain reasons could not be correctly recorded.
10. Lastly, Mr. Chakravarty who appeared for Ruplal before us submitted that the evidence of the prosecution to the effect that Ruplal was living at Pasraha and must have come from there to the place of occurrence on the day of occurrence is wholly incredible. And our attention has been drawn to the statement of Ruplal as recorded in the case-diary of the case which Ruplal's father had instituted after the demolition of his house and the ploughing of his homestead land. Though the Sub-Inspector appears to have proved the statement of Ruplal as recorded in the diary, his deposition does not show that Ruplal had actually stated before him that on the date of occurrence (of the previous Case) he was in the village Rahiama. I do not think that this entry in the case-diary of the previous case could be used in the manner in which it has been used. At any rate, even if on the date of occurrence of the previous case Ruplal was in village Rahiama, that cannot go to discredit the prosecution version in this case that on the day the occurrence giving rise to this case took place Ruplal was in Pasraha, Ruplal's own statement in this case is that the deceased Ramsaran and others had demolished his house and ploughed his homestead land Certainly, it is very improbable that he would have thereafter stayed in village Gouchari. The accused further admits that he often visited the house of his brother-in-law Gobardhan. Whether there is direct evidence or not for the purpose of proving that on that day Ruplal was in Pasraha, the circumstances are quite strong for the purpose of establishing that Ruplal could not stay at his village home, and it is the own admission of Ruplal that he visited his brother-in-law very often. On the whole, therefore, the correctness of the prosecution story that both Ruplal and Gobardhan were at the place of occurrence at the time of occurrence cannot be doubted even if no direct evidence is forthcoming for the purpose of proving that Ruplal was in Pasraha on that day. It is very significant that even against Adhik no ill-feeling had been alleged. Adhik's evidence cannot be discarded simply because he is the cousin of the deceased Ramsaran, and undoubtedly nothing has been elicited in his cross-examination which can raise the suspicion that he is a suborned witness. I have, therefore, no hesitation in accepting the evidence of Adhik, and if his evidence is accepted, the conclusion becomes irresistible that Ruplal had committed the murder of the deceased and Gobardhan had rendered him some aid in the commission of the crime.
11. The evidence of P. W. 1 Sarafat Mia is also quite reliable. He and Kamal Markandey had heard the shouts of Adhik and had seen the two men running away. They could succeed in arresting only Gobardhan, and after having arrested him they went to the place where Ramsaran's body was lying. They met the injured man Adhik at the place of occurrence who told him how the occurrence had taken place.
12. The eviedence thus establishes beyond all reasonable doubt that Ramsaran died as a result of the injuries which he had received at the hands of the accused Ruplal. The attack was a brutal one, inasmuch as the doctor found three very serious injuries on his person. Anyone of the injuries Nos. 5, 6 and 7 was sufficient to cause the death of the deceased, these injuries having been described by the doctor as follows:
"5. Penetrating wound 1 3/4" x 3/4" entering the left chest cavity just outer to the left nipple producing 1 1/4 into 1" deep cut on the left lung. The wound was directed inwards and backwards. There was about 8" of blood in the left pleural cavity.
6. Incised wound 3 1/4" x 2" x 2 1/2" across the left side of front of neck directed downwards cutting the big blood vessels and nerves of neck.
7. Penetrating wound 1 1/2" x 4" entering the right chest cavity on the upper part of right side of back, producing a 1/2" x 1/4" deep cut ' on the right lung. There was about 3 ozs. of blood in the right pleural cavity."
That there was strong motive for such a crime cannot be doubted. Fortunately for the prosecution and unfortunately for the appellant Ruplal, his own statement contains an admission of the facts which, as stated by the prosecution, constituted the motive for this dastardly crime. He has got a strong grievance against his caste-people because they did not allow him to marry. About Ramsaran particularly he says that he is one of the two persons who had outcasted him and had prevented him from marrying. This accused had gone to the length of purchasing a woman for the purpose of marriage, and he says that Ramsaran and Khusi had made that girl traceless. He admits that he was very much aggrieved by it and that then he kept the wife of Mauji Mandar. He adds that in the month of Shravan Ramsaran and Khusi assaulted him and sent the woman back to her father's house and that thereafter they demolished his house, made it 'din' and ploughed it. It is thus that the accused supports the prosecution version as to the motive for this great crime, and in face of what he has stated the adequacy of the motive cannot be doubted. Obviously, he felt determined to take revenge against Ramsaran, and taking advantage of the fact that Ramsaran had gone to Jhaksu's house, he along with his brother-in-law waylaid him. and the way in which the injuries were inflicted shows that the attack was a very cruel one. Ruplal is, therefore, clearly guilty under Section 302. Penal Code, and we must repel the contention of the learned Counsel Mr. Chakravarty that the circumstances of the case call for the imposition of the lesser penalty provided by Section 302, that is. transportation for life. In my opinion, death penalty is the only appropriate sentence in a case of this nature, and I would therefore uphold the sentence so far as Ruplal is concerned.
13. The next question is whether Gobardhan has rightly been convicted under Section 302, Penal Code. So far as he is concerned it was submitted that it was illegal to convict him under Section 302/34 when he had been charged only under Section 302/109. But, I think, it is now settled law that an accused may be convicted of substantive offence even if he is charged only with the abetment of that offence. It will not be correct to put forward as a proposition of law that On a charge of the abetment of a particular offence an accused cannot be convicted of that substantive offence. In each case what has to be shown is whether there had been any prejudice caused to the accused. Certainly, on a charge of abetment the accused cannot be convicted of a substantive offence if he has been prejudiced in his detence of a case based on a substantive charge. In -- 'Begu v. Emperor', AIR 1925 PC 130 (A) the charge was for murder, but their Lordships of the Judicial Committee upheld the conviction under Section 201, Penal Code for which no charge had been framed. Their Lordships had to consider SECTIONS 236 and 237, Criminal P. C. in this case, and while discussing Section 237 their Lordships referred to the illustration which has been given under this section. Viscount Haldane pointed cut that the illustration makes the meaning of the section quite plain and that a man may be convicted of an offence although there had been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. The case before their Lordships was not such a strong case as the case before Us in which for the purpose of proving abetment as well as for the purpose of proving the direct complicity of Gobardhan in the crime of murder, the same kind of evidence had to be adduced. This Privy Council case has been followed by the Supreme Court in --'Kashmira Singh v. State of Madhya Pradesh'. AIR 1952 SC 159 (B). It is unnecessary to multiply authorities on this point, but I should like to refer to a decision of this Court in --'Satyanarayana v. Emperor', AIR 1944 Pat 67 (C) which completely supports the view which I am taking. The conviction under Section 302/34 though Gobardhan was charged only under Section 302/109, is neither illegal nor improper, and in fact there is a further conviction under Section 302/109 as well, though no separate Sentence has been awarded under this provision.
14. But the question still remains as to whether the evidence and the circumstances are such as to lead us to convict Gobardhan either under Section 302/34 or under Section 302/109. He had no deadly weapon in his hand, and even the lathi which he was carrying he dropped before catching hold of the deceased. But undoubtedly he did catch the deceased, and there is ample force in the contention of the learned Standing Counsel that so many injuries could not be inflicted by Ruplal unless he had been caught The question, therefore, arises as to whether the case comes within the principle laid down by their Lordships of the Judicial Committee in --'Mahbub Shah v. Emperor', AIR 1945 PC 118 (D). The principle is laid down in the following terms:
"Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of, an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
The prosecution certainly have not led evidence in this case to show that both Ruplal and Gobardhan had arranged a plan for committing the murder of Ramsaran and that whatever was done by Ruplal was done in concert pursuant to the pre-arranged plan. Considering the nature of the injuries and also considering the circumstance that both had come together and were lying in ambush for the deceased, there can be no doubt that Gobardhan had the intention of committing or aiding an offence at least as contemplated by Section 326, Penal Code. It is also true that several of the injuries were inflicted while he was catching hold of the deceased. In view of the statement of Adhik which runs as follows:
"Accused Gobardhan remained holding Ramsaran so long accused Ruplal went on giving him blows after blows and ultimately drove his chhura into his neck."
it may he doubtful that Gobardhan was catching hold of the deceased until the injury on the neck was inflicted, but there can be no doubt that the deceased was under his hold till the time when the other serious injuries were inflicted. The question, therefore, is whether in such circumstances Gobardhan can he deemed to have intended the commission of the offence of murder. As pointed out by their Lordships of the Judicial Committee in the case -- 'AIR 1945 PC 118' (D) care must be taken not to confuse same or Similar intention with common intention; the partition which divides 'their bounds' is often very thin. In this case also the evidence falls short of showing that the two appellants had entered into a plan 'to bring about the murder of Ramsaran, and it was impossible for Gobardhan to appreciate or realise the weight and the magnitude of the strokes which were being inflicted by Ruplal. At times it becomes difficult even for the actual assailant to measure his strokes, and for the other person present to know that the assailant was striking with the intention of killing the man (of course, without any preconcerted plan) is something almost impossible. "Common intention" is an intention to commit the crime actually committed, and each accused present can be convicted of that crime only if he has participated in that common intention. I see no reason to hold in this case that Gobardhan had the intention of committing the murder of or knew that Ruplal had the intention of murdering the deceased. It is quite possible that when Ruplal brought him he gave him to understand only this much that he would teach his old enemy Ramsaran a lesson by inflicting very serious injuries on his person. This possibility cannot be ruled out, and the circumstances in this case are not such as to bring the charge against Gobardhan within the principle as laid down by their Lordships of the Judicial Committee in -- 'Mamand v. Emperor', AIR 1946 PC 45 (E). Apparently, that case supports the view that Section 34 applies so far as Gobardhan is concerned, but in that case there was one very important circumstance, and it was this that it was the appellant No. 1 (of that case) who had strong grounds for entertaining feelings of enmity against Naman who had been killed, Though therefore the said appellant No. 1 was only grappling with one Gahra when the murder took place, he was found guilty of the offence of murder and sentenced to death. Here Gobardhan was only a helper of Ruplal and had 110 personal animosity against the deceased. So far as Gobardhan is concerned my conclusion, therefore, is that he can be convicted only under Section 326/34, Penal Code. I need not repeat that it is not only the neck injury which could have proved fatal but there are other injuries also which by themselves could prove fatal, and in the circumstances, the offence so far as Gobardhan is concerned cannot be less than an offence under Section 326/34, Penal Code.
15. For the reasons given above, I would accept the reference so far as the accused Ruplal Koeri is concerned, uphold the sentence of death passed against him & dismiss his appeal. So far as the appellant Gobardhan Koeri is concerned I would discharge the reference and allow his appeal in part. He is convicted under Section 326/34, Penal Code, and sentenced to undergo rigorous imprisonment for a period of seven years.
Ahmad, J.
16. I agree.