Patna High Court
Raghunandan Koeri vs Emperor on 13 September, 1920
Equivalent citations: 59IND. CAS.858, AIR 1920 PATNA 616
JUDGMENT Sultan Ahmed, J.
1. The prisoner was charged under Section 302 of the Indian Penal code with the murder of one Musammat Bissandeyi, his younger brother's widow, also of her son, Ram Sakal, aged eight-nine years, an the 22nd April about midnight. He was also charged for having committed arson in the house where Bissundeyi was living on the same occasion. The trial was with the aid of two Assessors, one of whom was of opinion that the evidence did not prove the case against the accused on any of the counts, while the second. Assessor was of opinion that the evidence supported both the charges of murder and arson against the prisoner. The learned Sessions Judge, agreeing with one of the Assessors and disagreeing with the other, convicted the accused under Sections 302 and 436 of the Indian Penal code and sentenced him to death. This sentence has now some up to this Court for confirmation under Section 374 of the Criminal Procedure Code and the accused has also filed an appeal from jail.
2. The prosecution story is briefly as follows. The prisoner, who is a widower, become a Sanyasi some time ago, and used to pass his days as a Sadhu. On the death of his younger brother, Jeo Nandan, about six or seven years ago, the prisoner became a secularist again and began to live in his house jointly with his son, Sakaldeep, and his brother's widow, the deceased Bissundeyi, and her son, Ram Sakal. His elder brother's widow, Musammat Tetri, with her son used to live separately from them, but in the same house. As time went on people began to support the prisoner of his having an intrigue with Musammat Bissundeyi, and about 2 1/2 years ago his caste men excommunicated him and his family. Sakaldeep, shortly before the occurrence convened a panchayati for the revision of the order of excommunication passed by the panches in order to prepare the way for his marriage. The panches decided that Raghunandan, the prisoner, and the deceased woman, Musammat Bissundeyi should be turned out of the prisoner into effect at once and both the prisoner and Bissundeyi left the house two or three days after the woman came to see her young son, Ram Sakal, who seems to have been crying for his mother, and the caste men allowed her to live in the house for the sake of the boy but on the strict condition that she must abandon the accused. While the woman was living in the house, the prisoner used to go to visit her, but she used to reject his proposals and used to abuse him. On the evening of the night of the occurrence, Sakaldeep and Ram Sakal took their usual meal. Bissundeyi went to grind her satoo. Tetri also went to grind grams and the boy, Ram Sakal went to his mother, Bissundeyi: Sakaldeep and Tetri's son slept in the sehan out side the house keeping the sudder door of the house open for the absents inmates Tetri, and Bissundeyi. Bissundeyi is said to have returned to the house some time later and Tetri returned home shortly before midnight When she tried to open the entrance door she found that closed from inside She called "Sakal, Sakal" but there was no reply. Sakaldeep, who was sleeping in the sehan, waked up on Tetri's call and asked Tetri not to brother but to sleep for the night in the outer osara Tetri did so. After a while Tetri was roused up by the sound of the latch (killi). She saw the prisoner coming out of the house by the entrance door and proceed west and then north. Sakaldeep also saw his father going south to north but did not see him come out of the house. He called out of the house. He called out to him "Babu, Babu," but the accused did not listen to his call and went away northward. Immediately after this, Sakaldeep noticed that the inner osara was on fire and shouted out "fire, fire." The neighbours came up and extinguished the fire, and, while the fire was being extinguished, it was found that the boy Ram Sakal was dead with his throat cut. Bissundeyi was also found lying deal in the adjoining kothra. Constable Ram Sagar came in immediately while the fire was being extinguished, and he saw the boy's corpse lying down. He then hastened to the nearest out-post. After this Santo Singh, Jamadar in charge of the out-post, came together with constables Ram Pach, Chedi Mian and Ram Sagar. The Jamadar then sent Ram Sagar with one Sheo Deni to the thana to lodge the first information and he sent Chedi and Ram Pach with one Radhey Mahto to find out the prisoner, who was reported by the people there to be the murderer. The prisoner was found lying in the house of one Foujdar Ahir, where he had taken his lodging after having been turned out of the house under the orders of the panches. Then the first information was lodged at the thana by Ram Sagar about 2 o'clock. Sheo Deni, who had accompanied Ram Sagar to the thana, was also examined at the same time. The Sub Inspector arrived at the place of occurrence at about 3-30 A.M. There he examined the Jamadar, Santo Singh, and the three constables and then examined Sakaldeep and Kabir, Manjoor Radhey and Deni. Kabal was examined at 8 o'clock the next morning and Musammat Tetri was examined on the 24th at 10 k. M. Santo Singh and the Sub-Inspector of Police, who visited the place of occurrence later, found blood marks on the floor and on the osara wall close to the Khatia. He also found a garashee smeared with fresh blood and some cloth soaked in blood in Bissundeyi's room. He also found some scratch marks on the accused person. The accused was wearing a dhoti and a chadar at the time of the arrest, which were subsequently sent to the Chemical Examiner for analysis and report. The accused was, on these facts, sent up for trial and convicted and sentenced, as I have stated above.
3. There is to eye-witness to the occurrence The case rests entirely upon circumstantial evidence and I now propose to consider in detail the evidence which has been adduced on behalf of the prosecution, and see if this evidence a satisfactorily establishes the guilt of the accused.
4. The evidence mainly consists of (1) Tetri and Sakaldeep's statements.
(2) The evidence of prosecution witnesses Nos. 12, 14, 18 that the prisoner had been turned out of the house by the decision of the punches due to there having been an intrigue between them.
(3) The evidence to show that one evening the accused followed her, and being exasperated on account of her refusals to allow him to have anything to do with her, prepared to throw her into a well where she had gone to draw water.
(4) Scratches on his person found after his arrest by the Police.
5. It will be observed that if the statements of Tetri and Sakaldeep are not accepted the convictions of the accused, in spite of the other evidence, which I have summarised above, will be an impossibility.
6. The learned Government Advocate, however, has argued with great emphasis that the evidence of Tetri and Sakaldeep must be accepted, I, therefore, firstly proceed to consider the evidence of Musammat Tetri, Her evidence, in short, in her own language, so far as the occurrence is concerned is as follows:
After taking my meal that evening I went to Ram Kissen's house to grind wheat as labourer. I fed my son, Ram Asray, and advised him to sleep on the khatia, which I had stretched for him in the outside, until I came back, I also told him that Sakaldeep, his cousin, will sleep by his side, Bissundeyi and her son were in the house when I left for Ram Kissen's house. I returned home that night at about 10 P.M. I found the sudder darwaja bolted from inside, I sailed out Ram Sakal, None responded from inside. I, therefore, asked Sakaldeep what to do. He said like this, "do not bother, sleep for this night in the osara lying to the east of the door." An hour after, I heard the sound of the unbolting of the door. I got up then I saw Raghunandan, the accused.
7. The first question that arises for consideration is, whether Tetri did, as a matter of fact, go out of the house that evening, and whether she, on her return, finding the door bolted from inside, slept outside in the osara and then saw the accused come out of the house, It is remarkable that the prosecution have not examined Ram Kissen, in whose house she is said to have gone to grind the grains, and no explanation has been given why this important piece of evidence to corroborate Tetri has not been placed before the Court. It is next to be observed that when Ram Sagar and Santo Singh, the Jamadar, arrived at the place of the occurrence, Tetri was not found by them. If she had been there, it is difficult to conceive that Tetri would not have made the statement to them that she had seen the accused run out of the house. It is again remarkable that Sakaldeep, who was examined by the Police that night, does not mention of them, nor indeed does say even in the Court of the Committing Magistrate that Tetri was there and had seen the accused come out of the house. It is only reserved for Sakaldeep to say for the first time in the Court of Sessions that Tetri slept outside in the osara, not having gained entrance into the house, and that she saw the accused come out of that house. There is evidence, however, of prosecution witnesses Nos. 12, 14,16, 18 and 20, who say in Court that they met Tetri immediately after the alarm was raised by Sakaldeep and that Tetri told them that she had seen the accused some out of the house and run from south to north. This evidence, however, is unworthy of credit, inasmuch as it appears from the evidence of the Sub Inspector, the Investigating Officer, that when he examined these witnesses on the night of the occurrence soon after, they did not state to him that Tetri had told them that she had seen the accused come out of the house and run towards the north. Under these circumstances, it is impossible to believe Tetri's story. The story that Tetri saw the accused coming out of the house, saw the light of day for the first time on the 24th, when she was examined by the Police. It is, therefore, impossible, under these circumstances, to accept her story, and her evidence must be rejected as extremely suspicious and unreliable.
8. I now proceed to consider the other evidence, that is, of Sakaldeep. His evidence is as follows:
While I went to sleep in the sehan. I shut the outer door, i.e., sudder darwaja, but without chaining or bolting it. Tetri came before midnight. Tetri shouted out from outside, calling out Ram Sakal to open the sudder darwaja. None responded The door was not opened. I woke up when she was shouting. She said to me that the door was not being opened. I told her to sleep at the door. She slept there. About one hour after this I saw my father coming from the south in haste. I did not see him coming out of the house. I called out "Babu, Babu." He did not respond. When I first saw him he was about 3 cubits south of me. He want about 2 1/2 cubits off from my khatia towards its west. The night was andharia but cloudless. I distinctly saw his face as it was starlit night, I sat up as soon as I saw my father coming and passing by.
9. In cross examination he said that, Tetri never slept before in the outer osara.... I had not had sound sleep after Tetri's hulla.... My half sleep was broken after the sound of father's footsteps.... I do not recollect whether I saw my father's face distinctly by the light of the stars.
10. To begin with, if the presence of Tetri is not believed, as I have held it cannot be believed, much of what Sakaldeep says must be discounted. If Tetri was not there at all, how would he be roused by any hulla? There is no doubt, however that he mentioned to the witnesses, who same to the place of the occurrence after he raised the alarm that he had seen his father run from south to north. But considering that it was a dark night and that he was sleeping immediately before, I am not fully satisfied that he actually recognised the person who passed by. Even assuming that this evidence is accepted, I consider that it would not be safe to act upon this single circumstance to convict the accused. In this connection I may quote a passage from Best's Theory of Presumptive Proof, pages 58 and 59, reproduced in his Law of Evidence, paragraph 470:
In dealing with judicial evidence of all kinds ignorance dogmatises, science theorises, sense judges, The right application of presumptive, as of other species of evidence depends on the intelligence, the honesty and the firmness of the tribunals. To convict (at least, in the capital cases), on the strength of a single circumstance is always dangerous; and it has been justly observed, that where the criminative facts of a presumptive nature are more numerous most of the erroneous convictions which have taken place, have arisen from relying too much on general appearances, where no inchoate act approaching the crime, has been proved against the accused.
11. Is the fact that the accused ran from south to north a sufficient circumstantial evidence to prove the guilt of the accused? Evidence of previous disputes may prove motive, but, in my opinion, that evidence does not very much improve the circumstantial evidence given by Sakaldeep. Lord Coleridge, in his remarkable summing up to the Jury in the trial of Dickman, dealing with circumstantial evidence, observed as follows:
Now, circumstantial evidence varies infinitely in its strength in proportion to the character and variety, the cogency, the independence, one from another, of the circumstances. I think one might describe it as a network of facts cast round the accused man that network may be a mere gossamer thread as light and unsubstantial as the very air itself. It may vanish at a touch. It may be that, as strong as it is in part, it leaves great gaps and holes through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its structure that no efforts on the part of the accused can break through. It may come to nothing. On the other hand, it may be absolutely convincing. If we find a variety of circumstances all pointing in the same direction convincing in proportion to the number and variety of those circumstances, and they are independent of one another although each separate piece of evidence as standing by itself may admit of an innocent interpretation, yet the cumulating effect of such evidence may be, I do not say that it is, over whelming proof of guilt,
12. Here, far from being a variety of circumstances one independent of another, there is only this evidence that the accused was seen running from south to north. It has not even been suggested, much less proved, that the instrument with which the murder was committed and which was found in the room of Bissundeyi, belonged to the accused. Far more important then the flimsy evidence of Sakaldeep is the conclusive fact that the accused was found sleeping in his own house when he was arrested and the clothes that he was wearing, having been examined by the Chemical Examiner, were not found to have any blood marks. I will deal with this point once again later.
13. I now proceed to consider some of the other evidence in the case and see if they, in any way, furnish materials on which we, as reasonable and prudent men, could uphold the conviction of the accused, Evidence has been given to prove that the Punches had outcasted both the accused and Bissundeyi. There is no sufficient reason to doubt this evidence. There is also evidence to show that when the deceased Bissundeyi came to live in the house with her son, the accused wanted to continue his amorous visits. There is also some evidence, which may be accepted, that the woman did not encourage him in his visits. All this evidence may furnish some motive for the crime, though, in my opinion, this evidence does not prove adequate motive for the double murder. Evidence has also been given to prove that about 15 or 16 days before the occurrence the accused wanted to push the woman into a well. Details of this incident are not given and the evidence on the point is only of Kabir Imam, which is not quite clear. The prosecution also relied upon the Scratches found on the person of the accused after his arrest, presumably to show that there was some struggle between him and the deceased woman Bissundeyi when she was attacked. The medical evidence shows that the injuries found on his person were four slight Scratch marks on the thigh and waist. The Doctor says that they may have been caused by friction with hard substance or by nail, This evidence, however, is most inconclusive and does not, in the least, advance the case of the prosecution and any inference drawn from it is convincingly negatived by the fast that no blood marks were found on his person or on the clothes that he was wearing. If there had been a struggle, as we are asked to hold upon these scratches, surely there would have been marks of blood found on his person and on his clothes. It has not even been suggested that there was time enough for the accused to change his clothes. Further, nothing incriminating was found where the accused was lying when he was arrested. Giving my very' best and anxious consideration to the evidence in the case, I am of opinion that the case has not been satisfactorily established against the accused. The fundamental rule by which circumstantial evidence is estimated, is that in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis, other then that of his guilt; and, while 1 do not hold as a proposition of law that quantum or value of evidence must depend upon the enormity of crime, yet I am inclined to follow distinguished and eminent Judges like Sir Mathew Hale, Lord Cockburn, Lord Chancellor Nottingham and Mr. Baron Legge, who held that "the fouler the crime was the clearer and the plainer the proof ought to be."
14. There is no doubt that a double murder has been committed, but, as has been rightly pointed out by Baron Park in Regina v. Tawell (1845) 2 C. & K. 309 note : 1 Woodall's Celebrated Trials 162 : See Will's Circumstantial Evidence, 5th Ed. (1912), pp. 313-317, that justice never requires the sacrifice of a victim and an erroneous sentence "may produce incalculable and irreparable mischief and destroy all integrity of tribunals and introduce a train of social evils as the inevitable result."
15. In conclusion, I am distinctly of opinion, that the evidence of Sakaldeep that he saw his father run from south to north in the dark night, while he had just got up from sleep, is not such as inspires confidence, and upon which we should act to convict the accused. Farther, I am of opinion that, even if that evidence is accepted, it is a circumstance which stands by itself uncorroborated and from which no inference that the accused committed the murder inside the house can be legally drawn. The present case is fully covered by the case given by Best in his "Law of Evidence," paragraph 301. He says:
A.B. is found murdered; and C.D., a man of bad character, is thought to have had an interest in his death; this might give rise to a conjecture that he was the murderer and if, in addition to this, he had, a short time before the murder, been seen near the spot where the body was found, the feeling in favour of his guilt might amount to suspicion.
16. This, at the very highest, is a case of suspicion, and I would, therefore, acquit the accused of the charges of murder and arson, for which he has been convicted, and direst that he be released forthwith.
Jwala Prasad, J.
17. I agree.