Bajrangi Lall and Others vs The Empress

The five Appellants have been convicted by the Sessions Judge of the murder of one Sham Sunder Lall and have been sentenced to transportation for life. The Assessors expressed opinions in favour of their acquittal. It seems that the deceased, the son of Nowbut Lall, a witness, living at Chandipur, was on very intimate terms or as some of the evidence shows had an intrigue with a widow Koshila Koer, the sister-in-law of Bajrangi Lall, one of the Appellants. He was in some way connected with Koshila whose father lived at Raikor at no very great distance from Chandipur. Sham Sunder Lall appears to have had some reputation for curing small illnesses, and accordingly it would seem that Koshila took her boy to him for treatment. She left Bajrangi''s house with the boy and stayed for a time with her father and then went to and stayed several days in the house of Nowbut Lall in which was also Sham Lall. She then left Chandipur to return to Raikor apparently accompanied by the deceased Sham Lall. She was there a few days, afterwards met by Bajrangi Lall who took her to his own house also accompanied by Sham Lall. Some scandal seems then to have reached the father Nowbut Lall, through Rughoo Singh, a resident of another village, and he sent Eughoo Singh to bring Sham Lall home. This failed, whereupon Nowbut Lall went himself to Bajrangi Lall''s house and brought Sham Lall, his son, first of all to Eughoo''s house and then home to Chandipur. About two days later Sham Lall left his father''s house at about 1 prahar of the day saying that he was going to Monghyr for work. His father also says that he was in the habit of going there for work, having a sub-contract in the Railway there. His movements after that date are not clear, but his body was found on the 4th of February in some water under a Railway culvert at Jessowlie about 11/2 miles from Babhunor where Bajrangi lives. The body was apparently first seen by Fagu, a chowkidar, who gave information to the Police describing it from its appearance as being that of a beggar. The Head Constable Khuswakt Rai was directed to make an enquiry, and at the same time it would seem Lila Tewary, a constable, was also sent to Babhunor The body was sent for a post mortem and was returned to Barail, a village close to Jessowlie, where it was exposed for identification. About this time it would seem that Khuswakt Rai had heard some rumour that a murder had been committed by some one in Babhunor. It is unfortunate that the source of this information is not given, for, from the evidence it is extremely doubtful how it was obtained. If there had been evidence on this point, it would probably have formed an important link in the evidence for the prosecution. The Sub-Inspector was first deputed to the spot, and the Inspector himself followed the body to Barail and thence proceeded on the 7th to Babhunor where he remained a portion of that day and the whole of the 8th taking up the investigation himself. About this time Jowad Ali, a chowkidar of Babhunor, gave some information which led the Police to believe that the deceased had been murdered in connection with some intrigue in the village of Babhunor but even that is left very uncertain. There was also a man Surja Lall who was mentioned as having identified the body of the deceased, but he has not been examined as a witness. At any rate information was given to Nowbut Lall, the father of the deceased, and on the morning of the 8th he identified the body as being that of his son Sham Lall, and it would seem that after this identification many inhabitants of Babhunor who up to this time had preserved what the Judge describes as a conspiracy of silence, came in and identified the body also. That they had the means of doing so in consequence of the visits of Sham Lall to the house of Bajrangi Lall is established. The Inspector tells us that when he went to Babhunor on the 7th he examined Koshila who denied all knowledge of the occurrence but when after the father had identified the body she with other residents of Babhunor was brought in also to inspect it she burst into tears and disclosed how the murder had been committed. Now the Judge has laid some stress on this incident, but we would observe that although Nowbut Lall and also other villagers must have been present there is no evidence corroborating this statement of the Inspector. It may be observed that in her first statement although Koshila described how the murder had been committed, she did not mention any names. The case was placed before the Magistrate on the 11th, and Koshila then made a statement before the Magistrate, describing how Sham Lall had been killed by four of the Appellants withholding the name of Bajrangi Lall, her brother-in-law. At the Sessions trial she was examined as the 2nd witness, and she denied the truth of the statement that she had made before the Magistrate. She complained that she had been compelled to recognise the corpse and to make that statement and that she had been shut up for four days in a house by the Police before she had been placed before the Magistrate and she added that she had been forced to say what she did through threats of the Inspector. The Sessions Judge made no enquiry regarding this charge brought by Koshila against, the Inspector, but he forthwith admitted under sec. 288, C. Cr. P., the evidence that she had given before the Magistrate. That evidence, we may say, is really the whole evidence in this case, and it is important therefore to consider how far it is entitled to any weight. In addition to this, there is the evidence of several witnesses of the village, who said that they were roused at about midnight by the shouts of Jowad Ali Chowkidar calling out that there was a disturbance going on in Bajrangi Lall''s house, that they thereupon went there and on hearing a noise, demanded admittance on which the door was opened and they then saw Bajrangi Lall and the four other Appellants and some say they also saw the body of a man lying in the room. They were apparently satisfied with this, for they all left and it does not appear that anyone of them was either told who the mart who was described as lying groaning in the room was or that they recognized him by his appearance. Some of the witnesses, however, have stated that they recognized Sham Lall by the voice. At any rate they all left apparently satisfied that a very severe assault had been committed on some one. Jowad Ali''s evidence is remarkable in this respect. He says that he asked Bajrangi Lall where was the man he had killed and he said that he would go to the thannah, but Bajrangi Lall threatened him that if he went to the thannah, he would get up a case against him, and he said that the man who was beaten was shamming and had run away. We are asked with this statement before us to believe that Jowad Ali remained silent afterwards although he was one of the chowkidars of the village. The evidence goes to shew that in the first instance Jowad Ali was mute, and that after a little time and probably after some pressure he gave some information to the Police on which a clue was obtained to the identification of the body. But Jowad Ali is in some respects a very remarkable witness. He is a Mahomedan chowkidar, and although there were Hindu chowkidars in this village, it is he alone who stated that in consequence of an intrigue of the deceased with Koshila, Bajrangi Lall was excommunicated and that there was a meeting of the members of his caste to consider this matter. He also is the only witness (except Koshila in her statement to the Magistrate), who states that he saw Sham Lall at this village on the night of the occurrence and he states that he was sitting under a banian tree with two of the villagers and saw two men pass. He stopped and spoke to them and found one of them to be Sham Lall who was accompanied by a Sonar, and that the Sonar left and went to another quarter. Now it is remarkable that the Sonar has not been called as a witness, and except from Jowad Ali we hear nothing more of the two persons, who were sitting with him under the banian tree. We are unable therefore to place any reliance whatsoever on this statement of Jowad Ali. In fact we may say, the whole of his evidence is open to much suspicion. The case which is before us is therefore this :--There can be little doubt from the medical evidence that Sham Lall has been murdered in a brutal manner, nearly all his ribs having been smashed in. His body moreover was found under a railway culvert at about 11/2 miles from Babhunor, where, it is stated, he was murdered. There seems also some reason to believe that there was an intrigue between Sham Lall and Koshila, but from this point the evidence is open to the greatest doubt. Setting aside the evidence of Jowad Ali as to the presence of Sham Lall on that evening, we have only the evidence of Koshila before the Magistrate and also the evidence of some villagers who profess to have recognized Sham Lall by his voice when he was groaning. Now in respect of the evidence of these men, it is sufficient to say that they could have had very little opportunity of recognizing his voice at all, and we have no hesitation in saying that when they say they recognized the voice by the groans, they cannot be believed. We, have therefore to fall back upon the statement of Koshila made before the Magistrate. It is not denied that Koshila was kept for some days, about four days under Police surveillance. The Sessions Judge seems to consider that under the circumstances, the Police were perfectly justified in keeping her in this state. We cannot in any way agree in this opinion. There is no warrant for the Police to subject a witness to any unnecessary restraint whatsoever. The law enables the Police to send a witness, who shows an indication of unwillingness to attend the Court of the Magistrate, to custody, but beyond that they have no power over such persons. Sec. 171 declares that no witness on his way to the Court of the Magistrate shall be required to accompany a police-officer or shall be subjected to unnecessary restraint or inconvenience unless he refuse to attend or to execute a bond for his attendance. The control admittedly exercised over Koshila was, in our opinion, an unnecessary restraint or inconvenience in direct disregard of this section and certainly not justified under the explanation given by the Police and accepted by the Sessions Judge. It is impossible to accept evidence so obtained as that of a witness speaking voluntarily, and if it be said that the witness did not speak voluntarily before the Magistrate, but under the influence of the Police, it is impossible to say how far any of the statements can be accepted as true. No doubt the facts disclosed by the evidence of Koshila may in one view of the case seem probable and true, but it is impossible for us to act upon such an hypothesis:--It would be impossible to convict the Appellants solely on such evidence, for the evidence of the villagers who say that there was a disturbance in Bajrangi''s house really proves nothing.

We had occasion recently to notice in some cases an inclination on the part of Sessions Judges to act too readily under sec 288, C. Cr. P. There are several oases in this Court, and in the Allahabad High Court amongst which reference may fee made to Queen v. Amanulla 21 W. R. 49 : s. c. 12 B. L. R. App. 15 (1874) and Queen-Empress v. Dan Sahai I. L. R. 7 All. 862 (1885), and the rule therein laid down has always been accepted as settled law in this respect. The learned Judges in those cases have enjoined great caution on the part of Sessions Judges before acting under sec. 288. We shall refer again to those cases in considering the value of the statement made by Koshila to the Magistrate as evidence in the Sessions Court. In this instance, although the Sessions Judge had before him the statement of Koshila when her evidence had been improperly obtained by the Police, he, without any further enquiry on this point, brought on the record her statement before the Magistrate, and we further observe that in dealing with this case he, notwithstanding the explanation given by Koshila which had not been denied, has placed implicit reliance on the statement made by her before the Magistrate so as to convict the Appellants. He would, we think, have shown a better discretion if he had first made some inquiry by examining the Inspector of Police regarding the restraint and pressure said to have been put upon this witness so as to obtain this statement from her. Then again in respect of another witness Rughoo Singh, we observe that the Sessions Judge has also under sec. 288 brought on the record a statement made by him before the Magistrate. We can find no possible reason for this for although the Sessions Judge has stated that Rughoo Singh has in some respects contradicted his previous evidence the only difference that we can find is that he has made two statements at the conclusion of his deposition before the Magistrate which are not to be found in his evidence before the Sessions Court But it does not appear that this witness was ever asked regarding either of these matters, nor are these statements in any way in contradiction to anything that he has said in the Sessions Court. Then again we find that the Sessions Judge has admitted, under sec. 288, the evidence of the medical officer taken before the Magistrate. We can find no possible reason for this because this witness was examined in the Sessions Court and had shown no disposition in any way to resile from any statement that he had previously made. We observe also that the evidence of the medical witness taken by the Magistrate was not certified in the manner, directed by the orders of this Court, that is to say, there is no certificate to show that this evidence had been given in the presence of the accused. If it were intended to use the deposition under sec. 288, because it was not admissible otherwise, and under sec. 509 it would not have been so admitted and seeing that this witness was then under examination and had shown no inclination to vary the statements previously made, we can find no valid reason for the course taken by the Sessions Judge. The manner in which the Judge has expressed himself in his judgment as well as in several notes on the evidence of some of the witnesses seems to us to indicate that in a very early stage of the case he had formed a strong opinion against the accused and favourable to the prosecution. Several of the notes to which we refer are open to very serious objection, for instance, we may refer to a remark made on the evidence of Fagu Chowkidar, who first found the corpse and gave information to the Police. In answer to a question whether "they" that is, the various persons named "identified the body" the witness replied "yes, directly the father identified it they all began to identify it." To this the Sessions Judge adds the note "volunteered with the obvious motive of purposely destroying the case." We find, on the other hand, that this is not the only witness who made this statement, and we can find no reason at all for the imputation that this statement was made for the obvious purpose of destroying the case, nor can we find in respect of this witness Fagu anything to justify the Judge''s statement that he had tampered with the body before he reported its finding to the Police. It may be that the position of the clothes had been altered, but there is nothing to show that Fagu Chowkidar in any way touched them or that if their position was altered, this may not have been done by some one else. The Judge seems to have treated this case as if it had been a violent and unwarrantable attack on the, conduct of the Inspector. But whatever the result may be of the facts found in the case, we think that it was the duty of the Judge in the first instance to have considered how far the imputation of misconduct made against the Police had any foundation. We have already expressed our opinion on the point, that the Inspector was not justified in subjecting the most important witness Koshila to any restraint. In referring to this attack on the Inspector, the Judge thus expresses himself : "This feeling was emphasized by the direct attack on the Inspector, the only defence being that the case was entirely fabricated by him and I noticed a long row of Kayesth pleaders who came and sat in the Court when his cross-examination began." We think that this remark was altogether uncalled-for, and we also think that the remarks in regard to the verdict of the Assessors which cast a serious reflection on their impartiality was equally improper.

The conviction of the Appellants really depends on the evidence given by Koshila before the Magistrate and treated as evidence under sec. 288 in the Sessions Court. We would here refer to the case of Amanulla 21 W. R. 49: s. c. 12 B. L. R. App. 15 (1874). In that case Phear, J., pointed out that "the discretion which is so conferred is to be exercised upon substantial materials rightly before the Court, and reasonably sufficient to guide the judgment of the Court to the truth of the matter, and not upon mere speculation or conjecture;" and Morris, J., added that "a Judge may base his judgment on the evidence given before the Magistrate in the presence of the accused when there are special and particular reasons for considering that evidence to be honest and true and when that evidence is to a certain extent corroborated by independent testimony before himself." In the present case the learned Judge proceeded to point out there is nothing of this kind. There is really no one such substantive fact conclusively proved as can enable the Judge to say with confidence that the evidence given before the Magistrate was true as opposed to what was said'' before himself. Now we have already stated that we cannot accept Koshila''s statement, obtained after restraint at the hands of the Police for several days, as voluntary and therefore as reliable and true. But we can further find nothing that we can accept as reliable as corroborating that statement. There is nothing to establish the presence of Sham Lall in Babhunor at that time and beyond the evidence of the villagers that they heard sounds of beating and groans in Bajrangi''s house and the body of a man lying there, there is no evidence and we cannot from that evidence find that that person was Sham Lall. His body was found at a distance of about 11/2 miles and it may be that he met his death somewhere in that neighbourhood. We observe that a river flows close to the village, and it is remarkable that such a ready means of disposing of this body should not have been resorted to. On the whole we think that there is no sufficient evidence upon which the Appellants ought to be convicted and we accordingly direct that they be acquitted and released.