Emperor vs Remis Christian

Meredith, J.—This is a reference u/s 374, Criminal P.C., made by the learned Judicial Commissioner of Chota Nagpur for confirmation of the sentence of death passed upon Remis Christian whom he has convicted u/s 802, Penal Code, for the murder of his wife Leoni. There is also an appeal by the condemned man which has been heard together with the reference.

On 18th April 1945, the dead body of a young woman was found by some villagers lying on a village path running between the jungles of Katkahi and Karaku villages within the Chainpur police station of the Gumla sub-division of Ranchi. The head of the woman had been almost severed from the body by some sharp weapon, and was connected only by a piece of skin. There was much blood upon the ground at the spot. It is the prosecution case that the body was that of the appellant''s wife. The appellant is a resident of village Hesag, which is situated about four miles to the northwest of the spot where the body was found. The woman came from village Tilwari, which is situated about six miles to the east of that spot, and the path was the path which would be taken by a person going from one village to the other. According to the prosecution, Leoni had given birth to an infant a few months before the occurrence. The infant died and the woman became unwell, and she, therefore, went to the house of her parents at Tilwari. On 12th April the appellant went to fetch her, and he started back in the afternoon of that day to take her to his home. Evidence has been led to show that they went off together and were seen together not more than a mile from the place of occurrence. When within the jungle the appellant for some reason, which the prosecution has not attempted to establish, killed his wife with a balua (EX. 2), which he was carrying with him. Afterwards he hid the axe in a ditch under some leaves, and went on home, where he said nothing to any one. On the evening of 13th the dead body was discovered by the villagers. The Chaukidar (P.W. 1) was informed, and after inspecting the body for himself he went to the police station, and lodged information at 3 p.m. on 14th. The Sub-Inspector (p.w. 16) reached the spot at 5 p.m. the same day. He made inquiries, and as a result of certain information received he suspected that the appellant might be concerned in the murder. He, therefore, visited Hesag, and searched his house. That was on 15th. He took possession of a balua and a gamchha (wrapper) which he found there. This wrapper was subsequently sent for chemical examination, but no blood was found thereon. The balua was not gent as the Sub-Inspector saw no traces of blood. After this, the Sub-Inspector arrested Remis, and Remis, according to the prosecution, then stated to him that he would produce the balua with which the woman had been killed. He then went with the Sub-Inspector to the jungle, and in the presence of several witnesses taken by the Sub. Inspector he showed a spot 120 yards from where the dead body had been found, and he took out from under dead leaves in a ditch another balua (Ex. 2). This was subsequently sent for chemical examination, and human blood, besides some human hair, was found thereon.

On the night of 14th the Sub-Inspector had sent the dead body to Gumla for post mortem examination. On 15th he met the parents of Leoni, who told him that they suspected that the woman might be their daughter. He, therefore, sent them off to Gumla, where they arrived on 16th morning before the post mortem bad begun, and they identified the woman as their daughter both by her appearance and her clothing. They have given evidence to that effect at the trial.

It will be seen that the case against the appellant is purely circumstantial, and rests on the evidence that he was the last person seen with the deceased during her life, was seen going with her and carrying a balua near the spot, that he never did anything to take any steps to trace his wife who certainly did not reach home with him, and finally that he confessed that he could point out where the weapon was with which the woman had been killed, and subsequently did point out that weapon.

The appellant''s defence was that he knew nothing about the matter. He had been falsely implicated at the instance of Silvanus Prachar (p.w. 5), because he had resiled from the Christian faith. There is a Christian mission at village Chechali not far from where the dead body was found, and to this Silvanus was attached. Beyond this the appellant put forward no positive case. He did not definitely assert that his wife was alive, or that the dead body could not be hers. What he did say when questioned by the learned Judge was:

I did not kill. Having renounced Christianity I became separate. Hence Silvanus and others implicated me in the case. They brought balua and kept it. They did not give it to me.

I suspect that the last sentence is a mistake for "I did not give it to them," as otherwise it appears meaningless.

The first question for examination is whether it was established beyond doubt that the dead body was that of Leoni, wife of the appellant. In my opinion, there can be no-doubt upon that point. Both the parents in evidence definitely stated that they recognized the body. The father is Pinas Uraon (p.w. 7), and he says he identified his daughter. The cloth-was about the same, the manner of wearing was also the same when he saw the corpse as when the girl left. His wife is P.W. 8, and she says:

We saw the corpse and identified it as that of the daughter. She was dressed just as she left. She wore a jhula, a chadar and Sari.

Unfortunately the clothing found upon the body has not been preserved, nor was it sent for chemical examination to ascertain whether it was blood-stained. Despite the fact, however, that the clothing was not produced for identification by the witnesses in Court, I consider there can be no reason at all for not accepting the evidence of the parents. Certainly the appellant''s wife seems to have disappeared, and there is ample evidence that she had been near the spot where the body was found, not long before the finding of the body. I consider there is no doubt upon the point of identification.

The next question is whether the woman was murdered. A suggestion has been made that the injury to the neck might have been post mortem. This is based upon a statement of the doctor, who was examined before the committing Magistrate but unfortunately was not examined before the Sessions Court, to the effect that owing to decomposition he could not be sure of the cause of death, and whether the injury on the neck was ante-mortem or post mortem injury can be confidently rejected. The post mortem report discloses that the heart was empty. The evidence of the Sub-Inspector and other witnesses is that there was a large quantity of blood upon the ground at the spot. Both these circumstances are quite inconsistent with the theory of post mortem injury. It does not need a medical expert to say that if the woman had died before her head was cut off the heart would not have emptied itself. Moreover, the doctor did say that no other injury was found upon the person nor did he find any indication of any disease. It is true that the girl''s mother said she was suffering from a swelling of the body and limbs, but that is not a thing likely to have caused sudden death. Apart from that, the whole theory is fantastic to my mind. Had the girl died from some other cause there could have been no possible reason why any one would have wanted to cut her head off, and leave the body lying where it was found. It has been suggested that it might be a case of human sacrifice, a thing which, though it is very rare, does sometimes still occur in the aboriginal tracts of Chota Nagpur. There is, however, nothing to support this theory, and it is inconsistent with the theory that the injuries were post mortem, because sacrifice would not be made by cutting off the head of a dead body. In my opinion, despite the failure to examine the doctor at the trial, there can be no doubt that the woman was murdered.

The remaining question is whether it has been established that it was the appellant who murdered her. The theory that some one might have murdered the woman for the sake of robbery must be rejected, because the evidence is that silver ear-rings were found in the ears; nor is the woman likely to have had much in her possession worth stealing. I consider that the theory of murder for the sake of robbery must certainly be rejected.

Before I proceed to deal with the evidence, I should like to say a word about the appellant''s defence. It seems to be quite without substance. There is nothing in the evidence of Silvanus Prachar to suggest that he has any animus against Remis. On the contrary, this witness stated in cross-examination:

It is a fact that when he was arrested Remis was beaten.... The Sub-Inspector Saklu Bhagat and Juel Christian beat the accused. Even a lathi was used.

If Silvanus had been instrumental in getting a false charge brought against Remis on concocted evidence he would have been the last person to make a statement like this. On the other hand, there is no evidence on the record to suggest that Remis has ceased to be a Christian. On the contrary, the only witness questioned on the point, Dasain Uraon (P.W. 14) said in cross-examination: "It is not a fact that Remis has given up Christianity, and does not attend our church. He does." ''

[10] A point of law has been raised by Mr. Rai Parasnath, who has argued the appellant''s case with great ability. He has urged that the statements of the appellant with regard to the production of the axe were not admissible u/s 27, Evidence Act. These statements were actually taken from the Sub-Inspector in the following form. He said:

I recovered from his house a gamchha and a balua. He said ''I shall give you the balua with which the woman has been killed. Come with me''. He took us--myself, Silvanus Prachar, Hazari Sahu, Jamadar Singh of Kathhi, Dasain Mahto--to the jungle near the place where the corpse was found. He removed from a ditch, after removing the leaves, a balua. This is the balua with which the woman has been killed," he said, "I found blood marks on the balua and some hairs sticking near the sharp edge.

Mr. Parasnath has cited, "In re Singampilli Yerranna" AIR 1941 Mad. 306, in which it was observed:

Under Section 27 oases where a discovery is made in consequence of information given and a disclosure by an accused accompanying a statement must be distinguished. Where an accused makes a statement to a police officer describing the murder and the part played by the other accused and almost simultaneously produces earrings identified as those worn by the deceased, the discovery of the ear-rings cannot be said to have been made in consequence of the information given by the accused, and, therefore, the statement is inadmissible in evidence u/s 27.

The proposition of law here laid down is, if I may say so, quite obviously correct. The statement is only admissible u/s 27, if it can be shown that the discovery had been made in consequence of that statement. The ruling applies to the second statement which has been recorded as having been made after removing the balua from under the leaves. Quite clearly for the reasons given that statement ought not to have been admitted. The error, however, is immaterial if the first statement is admissible, because the second statement does not add anything to the first. The important question, therefore, is whether the first statement: "I shall give you the balua with which the woman has been killed. Come with me" was rightly admitted. Here the point that arises is whether by reason of the statement of Silvanus that the appellant was beaten this statement must be excluded u/s 24, Evidence Act; whether in fact Section 27 is subject to Section 24, or, on the contrary, Section 24 is subject to Section 27.

In the first place, I should say that there cannot have been any severe beating of the man, and I am inclined to think that Silvanus was trying to help him. The reason is that Remis was produced before the Magistrate on 17th April, only two days after the Sub-Inspector had arrested him. The Magistrate has recorded in his order-sheet "The accused does not complain of any ill-treatment at the hands of the police." On the following day, the 18th, the accused was produced before another Magistrate with a view to having his confession recorded. He did not confess, but there also he made no complaint of any ill-treatment. Certainly, on the 18th, he could not be under police influence. He was not prepared to do what it is alleged the police had been trying to make him do. Therefore, if he had really had any complaint on the score of ill-treatment he would, I think, certainly have made it. If he had really received any severe beating, there must have been bruises on his body which he could and no doubt would have shown to the Magistrate. I am of opinion in such circumstances that if there was any beating it must have been very little. We will assume, however, that there was some sort of compulsion which would bring in the operation of Section 24. It seems to be well settled that Section 27 is to be regarded as a proviso not only to Section 26 but also to Sections 24 and 25. There has been recently a direct decision of a Bench of this Court upon this very point. I refer to Mathura v. Emperor AIR 1946 Pat. 210. In this case Manohar Lall and Das JJ. held that Section 27, Evidence Act, 1872, controls Sections 24, 25 and 26 thereof. If, therefore, a confession comes within the purview of Section 27, it is admissible in evidence even if it is hit by Section 24 of the Act. Ordinarily, this decision would be binding upon us, but to some extent it must be regarded as obiter, since the confession in question was held inadmissible upon a different ground. Reference has, however, been made in that decision to a number of previous cases in?which the same view has been taken. These include two Pull Bench decisions of the Allahabad High Court and two Calcutta decisions. In Queen-Empress v. Babu Lal (84) 6 All. 509 the Full Bench, Mahmood, J. dissenting, held that Section 27, Evidence Act, is a proviso not only to Section 26 but also to Section 25. Oldfied, J. in the course of his judgment, said:

Had the proviso been intended to be a proviso to Section 26 only, it would not have been put in the form of a separate section, but as part of Section 26.

The other Allahabad case is Emperor v. Misri (09) 31 All. 592. That was a case hearing directly upon Section 24, as it was found as a fact that the police officer had made a promise to the accused prior to her pointing out the ornaments to the effect that if she produced the ornaments she would be let off. The learned Judges said:

Learned Counsel who appeared for the accused wished us to limit the force of Section 27 and to read it as qualifying only Section 26 and not Sections 24 and 25. We see no ground for such limitation, and we hold that that section is a qualifying section to the three sections which immediately precede it.

In Amiruddin Ahmed v. Emperor AIR 1918 Cal. 88 a similar observation was made. The learned Judge who delivered the judgment said:

If (sic, however,) the question does arise, in that case I am of opinion that Section 27 qualifies not only Sections 26 and 25, but also Section 24. All three sections lay down general rules excluding confessions.... In Section 27 follows an exception. The reason for making or providing this exception applies alike to each of the three preceding general rules. If the exception had been intended to apply only to Section 26 or only to Sections 26 and 25 we should have expected to find this intention expressly stated or to find the exception, embodied in those two sections or in Section 26 alone.

In Durlav Namasudra Vs. Emperor, Rankin, C.J. as he then was, a Judge to whose opinion the greatest weight must be attached, said:

As my learned brother has pointed out, it has been decided by the highest authority that Section 27 is not a mere proviso to Section 26 but cuts down the operation of Sections 24 and 25 as well.

Mr. Parasnath relies upon the well-known Privy Council case in Pakala Narayana Swami v. Emperor AIR 1939 P.C. 52. In that case, however, the point under consideration was quite a different one, and though Lord Atkin in the course of his judgment made the observation that Section 27 seems to be intended to be a proviso to Section 26 he was not really dealing with the point in question, and certainly there was no decision upon that point.

I am of opinion that it must now be taken as settled, unless and until the Privy Council decides to the contrary, that Section 27 should be read as a proviso to Section 24, and controls it. Therefore, the fact that Remis may have been threatened or beaten does not prevent the application of Section 27.

As the evidence stands, the discovery was most certainly made in consequence of the statement. Mr. Parasnath suggests that the evidence has been deliberately presented in that particular form so as to secure the admissibility of the statement and actually the axe was not recovered in consequence of the statement. I cannot accept that contention. There is one thing which, to my mind, apart from the absence of evidence to support it, must rule it out. The Sub-Inspector had already recovered one axe from the appellant''s house, and he would naturally suppose, unless and until something appeared to the contrary, that this was the weapon used. It could only have been a statement made by the appellant that led him to look for a second axe which turned out to be the blood-stained weapon. I think, therefore, it is clear that this is a case where the statement has been properly admitted.

This evidence as to the appellant''s statement coupled with the evidence as to the recovery of the axe is a very strong circumstance pointing towards the appellant''s guilt. Mr. Parasnath points out that one of the witnesses who were taken to the spot and whose signature appears on the production list, namely, Kamil Minz (P.W. 15) said:

In my presence the accused did not bring any balua. I did not go with (he accused or the Sub-Inspector. There is no other Kamil Minz in my village.

This witness was simply tendered by the prosecution. His signature appears clearly on the production list, and is similar to the signature which he affixed to his deposition. It is, therefore, impossible to believe his statement. The suggestion that the Sub-Inspector by some improper means secured his signature on the production list does not at all appeal to me, nor was this point put to the witness. I think to suit his own purposes this witness has made a false statement. Besides the evidence of the Sub-Inspector with regard to the production of the axe, there is also the direct evidence of Hazari Sahu (P.W. 3) who says:

He (the appellant) brought out a balua from under dried leaves. This is the balua with which the woman was killed. It had blood marks and some hairs sticking to it.

Silvanus (P.W. 5) said: "The accused brought out a balua from a ditch by the side of the pathway, after removing the dried leaves." I think the production of the weapon by the appellant has been established.

Then with regard to the conduct of the appellant the girl''s father (P.W. 7) said:

He (the appellant) came again on a Thursday. They had food. They went away some time after midday. May be about 3 P.M. The accused had a balua and a gamchha with him. I sent the girl willingly. The girl was not keen on going. We asked her so go.... I thought that as my daughter had passed that way recently it might be she herself. So I and my wife went to Hesag to the house of Remis. Not finding the girl in his house, I asked him why. The son-in-law replied ''I walked ahead. She did not come with me.'' Then my fears were confirmed.

The girl''s mother (P.W. 8) said:

The girl''s name was Leoni. The accused is my son-in-law. The girl went away with him on Thursday about 4 or 5 months ago to his house. It was some time in the afternoon when they left. The son-in-law had a balua with him. On Sunday morning we heard that a girl had been found murdered in the Karaku jungle. We went to Remis''s house at Hesag to see ii the girl was not there. The girl was not in the husband''s house. We asked him about it. He replied "I do not know, and she did not come with me.

She added in cross-examination that they had seen the pair up to the boundary of the village, and had gone with them up to a kos.

Barku Uraon (P.W. 11) testifies that ha saw the accused and the daughter of Pinus going away by the road on a Thursday about four months ago. He was outside his village grazing cattle. It is true he did not see the father and the mother with them, but that might have been after the father and mother had returned.

Dinus Uraon (P.W. 9) said:

I know Remis. He was married at Tilwari. I had seen his wife. I saw them walking away across a jungle Kora-Sarua on Thursday about 4 months ago. It was some time before sunset. The woman was going ahead followed by the husband. He had a balua. This was about one mile to the south of Karaku jungle.

Taking all this evidence in conjunction with the appellant''s production of the bloodstained balua and the fact which is evident from the record that after he must have missed his wife he did nothing to bring the matter to the notice of the authorities I consider that it has been established beyond any reasonable doubt that the appellant must have been the murderer, and he had been rightly convicted.

There remains the question of sentence. The appellant is a young man, little more than a boy. The learned Judge gives his age as 21. He is an aboriginal, and such people cannot be judged entirely by the standards which are applicable to more civilized races. Such people are liable to sudden accessions of rage, when they are not perhaps entirely responsible for their actions. Apart from that, there is a hiatus in the case. We do not know what the reason was for the murder. We cannot be sure that there was not grave provocation. In these circumstances I am of opinion that it would not be proper to impose a death sentence, and that the ends of justice can be sufficiently met by imposing the lesser penalty. In the result, therefore, I would discharge the reference, but I would maintain the conviction and dismiss the appeal, merely altering the sentence to one of transportation for life.

Bennett, J.

I agree. A suggestion was made by and on behalf of the accused, Remis Christian that because of his renunciation of Christianity the witness Silvanus (P.W. 5) and others had deliberately manufactured a false accusation against him in this case and that they had deliberately buried an axe and foisted it upon the accused as being the axe with which the crime had been committed. In my opinion there is no such basis to that suggestion as would have enabled the learned Judicial Commissioner or as would enable this Court to reject or to doubt the evidence as to the manner in which this balua was in fact found. The suggestion rests upon no evidence, and as a possibility it appears to me to be nothing but a wild surmise. Once the evidence that the accused after his arrest in connection with the disappearance of his wife led the Sub-Inspector and at least two other prosecution witnesses, Hazari Sahu (P.W. 8) and Silvanus (P.W. 5), to the place where the balua was buried and there himself uncovered it and handed it over, is believed, there appears to me to remain no doubt on the three main issues involved in the ease. It would be a matter of extraordinary coincidence if in those circumstances the accused had led the Sub-Inspector to this axe, but the corpse had turned out to be the body of some person other than his wife. That consideration coupled with the positive evidence of the parents of the girl as to her identity leaves, in my mind, no possible doubt that the deceased was in fact the wife of the accused.

Similarly, it would be a matter of great coincidence if after the accused had led the Sub-Inspector to the balua as he did it had been found that the axe which he uncovered had not in fact caused the death of the wife of the accused. Similarly, having discovered this axe in the manner I have referred to, it would be an extraordinary coincidence again if it turned out that the murderer was not in fact the accused. The absence of any explanation whatever by the accused as to the discovery of the axe coupled with the evidence as to the movements of the accused and of his wife on the afternoon of the evening of 12th April 1945, and the evidence of the extraordinary unsatisfactory statements made by the accused to the deceased''s parents when questioned by them on the morning of 15th April 1945, as to the whereabouts of his wife, point, in my opinion, conclusively and beyond any reasonable doubt to the guilt of the accused and this even if the evidence of the statement leading to the discovery of the balua is excluded. In my opinion, therefore, the appellant was rightly convicted.

For the reasons given by my learned brother, I agree that the death sentence should not be imposed, and that the ends of justice will be met by a sentence of transportation for life. I am, therefore, of opinion that the conviction should be confirmed, but that the reference for confirmation of the sentence of death should be rejected, the appeal dismissed, and the sentence altered to one of transportation for life.