Emperor vs Girdhari Teli

Harries, C.J.—This is a reference u/s 374, Criminal P.C., made by the Judicial Commissioner of Chota Nagpur for confirmation of a death sentence passed upon Girdhari Teli. The latter has also appealed against his conviction and sentence, and it will be convenient to dispose of both the reference and the appeal in this judgment. Girdhari Teli, together with his three sons, Chowa Teli, Bandhu Teli and Behari Teli, were tried by the learned Judicial Commissioner of Chota Nagpur assisted by three assessors upon a charge of murdering one Kali Teli on 19th August 1939, in the village of Marudih.

Two of the assessors were of opinion that Girdhari was guilty of murder, whereas the third assessor was of opinion that Girdhari had killed Kali but he did not think that Girdhari had any intention to kill. Two assessors were of opinion that Bandhu and Chowa had joined in the assault on Kali but could not say whether they intended to kill Kali or not. These two assessors were not satisfied that Behari took any part in the assault and would give him the benefit of the doubt. The third assessor was not satisfied that either Chowa or Behari was present at the assault and would give Bandhu the benefit of the doubt as he himself was beaten. The learned Judicial Commissioner was of opinion that there was some doubt in the cases of Bandhu, Chowa and Behari, and accordingly he acquitted them upon the charge of murder. He was, however, satisfied that the charge against Girdhari had been established beyond all reasonable doubt, and he therefore convicted him of murder, and as he could find no extenuating circumstances whatsoever he sentenced Girdhari to death.

Girdhari and the deceased man, Kali, belonged to the same family, Girdhari being the son of one Mahor Teli, whereas Kali was the son of Anup, a brother of Mohar Teli. The family of Girdhari had separated from that of Kali Teli, and it was the case for the prosecution that considerable ill feeling had arisen by reason of the fact that Girdhari had obtained possession of more than his fair share of the family property. It is the, case for the prosecution that a panchayati had been called by both Girdhari and Kali and that the panches had made an award and had actually divided some of the family property. Unfortunately however some property still remained to be divided, and it was a portion of this property that gave rise to the dispute which caused the death of Kali.

On the day in question, namely 19th August 1939, Kali, together with his nephew Aklu and servants, had gone to plough a field called Simrabad. After ploughing that field, Kali went at about 10 A.M. to another field called Kubri Mahua and cut the boundary ridge of that field to let out the water. As he was doing this, the four accused persons are said to have come up to him and Girdhari is alleged to have said "I will not allow you to plough this field, you are taking more than your share." Kali is said to have asked Aklu to bring a measuring pole in order to measure the land. Kali had also said that he was ploughing the land because he had always done so.

Aklu, it is said, went to his house which was about one hundred yards away and was returning towards the field when Girdhari struck Kali on the head with a pole axe, and immediately afterwards struck him another violent blow on the right side in the region of the abdomen, and as a result of these blows Kali was felled to the ground. The three sons of Girdhari are then said to have pressed Kali and caused his entrails to pro. trude through the gaping wound which had been caused on his right side. A number of people are said to have come op to the scene, whereupon Girdhari and his sons went away.

Aklu went to Police Station Deori, and at 11.30 A.M. he informed a constable that Kali had been attacked and severely injured by Girdhari. The senior officers of the Thana were not present, and accordingly Aklu''s statement was not recorded as a first information report. A constable was sent with Aklu back to the village to take the injured man to Mirzaganj hospital. It appears that a doctor had been sent for, who came and examined Kali. He was then in a moribund condition, and the doctor thought it advisable to record his dying declaration. In that dying declaration Kali says that he was ploughing his field at about 10 A.M. when he was attacked by six persons. Girdhari first of all came and struck him with a sword on his abdomen and then Chowa struck him with a phalsa on the back of the head. Then all four persons threw him down and got upon his person. Then they fled away, and the declarant became unconscious. It is to be observed that in his dying declaration Kali says that six persons assaulted him.

He only gives five names, and Bandhu he actually names twice. Later on he limits the assailants to four. It is quite clear from this dying declaration that it is a confused statement, and the evidence of the doctor who recorded it, Bhagwat Prasad Singh (P.W. 15), also makes it clear that Kali at this time was in a very precarious condition, and his condition might well lead to considerable confusion of mind. After examining the evidence of the defence and prosecution, his Lordship continued.]

If this prosecution evidence be accepted, there can be little doubt that the attack was a premeditated one; but I find it difficult to accept this evidence on its face value. No refereace is made in the first information report to Chowa''s wife giving Girdhari to pole-axe or to the fact that she was carrying a pole-axe concealed under a leaf umbrella. Further, it is to be observed that these witnesses did not mention this fact in the Court of the committing Magistrate.

It is true that their examination in that Court appears to have been perfunctory, but no mention of these important facts appear in their depositions. The learn-ed Judicial Commissioner pointed out that though these witnesses had not made such statements in the Court of the committing Magistrate the police diary showed that they had made such statements when they were first interviewed by the investigating officer. In my view, the learned Judicial Commissioner had no right to use statements by witnesses to the police in order to show that their evidence in the Court of Session did not introduce any new matter. Statements made to the police during investigation can be used in cross-examination to contradict a witness, but they cannot be used to corroborate that witness''s evidence; and they certainly cannot be looked at by a Court when no reference whatsoever has been made to the statements during the course of the case.

The learned Judicial Commissioner in this case appears to have taken the statements made to the police as substantive pieces of evidence which could be used by the prosecution. Eliminating the statements made to the police, there are two statements by each of the eye witnesses, one in the Court of Session and one before the committing Magistrate. In the Court of Session each witness mentions this incident of Chowa''s wife handing Girdhari the pole-axe, whereas in the Court of the committing Magistrate not one of the witnesses made reference to such an incident.

That being so, I am left in considerable doubt whether such an incident occurred. Further, I am very doubtful whether Girdhari ever shouted to Chowa''s wife to bring what he had instructed her to bring, that is the pole-axe. This might well be an embellishment added by Talo Koiri to his evidence in the Court of the committing Magistrate. I find it difficult to accept this part of the case as established beyond all reasonable doubt.

It is clear from the medical evidence that Aklu received a number of injuries and so did Bandhu. Bandhu had two lacerated wounds on the left side of his head and one lacerated wound on the right temporal region as well as an abrasion on the outer side of the front of the left elbow. Aklu had four injuries, a bruise on the left thigh, a scratch on the left shoulder, an abrasion on the upper part of the right side of the back and a bruise on the left little finger. Aklu in evidence attempted to account for the injuries on his body by stating that he went to Kali''s assistance and was struck on the left thigh by Bandhu.

He only mentioned one injury though in fact he had four. Aklu gives no explanation for the in-juries found on Bandhu. The fact that these injuries were caused, shows that the evidence for the prosecution is not entirely true, as no witness has stated that there was any kind of marpit between the parties. In my view the injuries to Bandhu and Aklu show that there was some scuffle and that in that scuffle they received the injuries found upon them. It is impossible to say whether such marpit took place be-fore or after Kali had been struck to the ground, but one thing appears to be tolerably clear that the assault on Kali took place during a heated quarrel.

In my view these circumstances tend to show that the attack on Kali was not a premeditated one but was one made during a dispute concerning possession of Plot No. 1503.

Even if that view be accepted, it in no way follows that Girdhari''s crime is any. thing less than murder. There is nothing on the record to show that Girdhari, was in any real danger and that he was entitled to use the pole-axe in defence of his own person. He certainly was not entitled to use anything in defence of property because he was the aggressor and had come to Plot No. 1503 which was in Kali''s possession. Even if there was a quarrel and abuse, there was no justification whatsoever for Girdhari using a lethal weapon such as a pole-axe, particularly when he himself was in the wrong and was the aggressor.

The blow might have been struck in a quarrel, but the circumstances are such that Girdhari cannot possibly pray in aid any of the exceptions to Section 300, I.P.C. The blows were extremely vicious and savage ones, and the person who struck them must have either intended to cause death or cause such bodily injury as would in the ordinary course of nature result in death. Even the most illiterate and ignorant person would realize that a savage blow with an axe in the region of the abdomen and spine was bound to cause death or injury which would result in death. In my view Girdhari, in striking these blows which caused Kali''s death, was guilty of the offence of murder and was rightly convicted u/s 302, I.P.C.

There however remains the question of sentence. If the attack had been a premeditated one, I should not have interfered with the sentence passed. However, holding as I do, that there was no premeditation and that the attack was made in a quarrel, I do not think that a sentence of death is necessary. In all probability Girdhari, enraged by what had occurred, picked up this axe and without any real thought attacked Kali with fatal results. In my judgment a sentence of transportation for life is sufficient in this case to meet the ends of justice. I would therefore discharge this reference and set aside the sentence of death bud would confirm the conviction u/s 302, I.P.C., and substitute a sentence of transportation for life for the sentence which I have set aside. To this extent, and this ex. tent only, I would allow the appeal..

Rowland, J.

I entirely agree. The incident on which the Judicial Commissioner rests his finding as to premeditation on the part of Girdhari, that is to say the story of how the axe was handed to him at his request by Chowa''s wife cannot be relied on for that purpose. It was not given in evidence at the commitment inquiry, is not referred to in the commitment order, and is not therefore a part of the prosecution case which the defence had notice that they had to meet. If it was intended to use this incident at the trial, the particulars of it ought to have been elicited at the inquiry. Failing that, the Public Prosecutor should not, without obtaining the special permission of the Court (for which the time to ask was when opening his case), have led evidence about it. Whether or no it was a "new story" from the point of view of the witnesses, it was new to the accused.

And it was not permissible to use statements made to the police during investigation to show that it was not a new story in the mouth of the witnesses. u/s 162, Criminal P.C., such statements can only be used for the purpose of contradicting the prosecution witnesses. As was said in Jhari Gope v. Emperor AIR (1929) Pat 268 there is nothing in the Code to justify the use of these statements by the prosecution for its own purposes and especially for the purpose of corroborating the statements made by prosecution witnesses in Court. The Section was recently under the consideration of their Lordships of the Privy Council in AIR 1939 47 (Privy Council) and their Lordships have clearly indicated their view that the provisions of the Section are to be strictly observed of which it behoves all the Courts in the mufassal duly to take note.