Lalita Devi vs Emperor

Ray, J.—The appellant, Lalita Devi has been convicted u/s 201, Penal, Code and sentenced to undergo rigorous imprisonment for a period of six years; she was acquitted of the charge of murder u/s 302, Penal Code.

The prosecution case was that on 3rd July 1946 the girl, Baohia, being the daughter of the appellant''s sister, was found missing. Her mother, Mombati (p. w. 7) was in search of her and was told on the way that she had gone towards the house of the accused. She thereupon came to accused''s house and asked about the whereabouts of her daughter and was told that she had been sent away by the appellant after her hair was dressed and she was given a tica of vermilion on her forehead. Mombati then states that at this time a young girl by name Agni came upon the scene and asserted that Bachia had been killed by the appellant. On this assertion being made, Mombati (P.W. 7) wanted to search the appellant''s house and the appellant bolted the door from inside, and while Mombati attempted to scale over the compound wall in order to reach the appellant''s room, she was struck with a lathi and brickbats. Later, a large number of villagers including Mombati''s husband, Geno Singh and her father-in-law, Kanhai Singh arrived. They sent for Bajo Singh, the appellant''s husband, on whose arrival and at whose orders the door was opened by the appellant, Thereupon a search was made and the Corpse of the deceased Bachia was recovered. It was found that the child had been cut at her throat just below the adam''s apple, the cut extending more to the right with a deep wound than to the left. Kanhai Singh went to the police station and lodged the first information report. The police after due formalities submitted charge-sheet against the appellant. The enquiring Magistrate committed her to the Court of Session with a charge u/s 201. The learned Sessions Judge added the charge of Section 302 but ultimately acquitted her of that charge.

The appellant and her husband, Bajo Singh, are the only inmates of their house which consists of rooms situated in a row running from east to west. There is a courtyard in the front of the rooms which is surrounded by compound walls on the east, north and west. On the eastern compound wall there is a door which, it is said, was bolted from inside against Mombati, the mother of the deceased girl. The corpse was found from a narrow space between the granary and the wall of the easternmost room. It was covered over with some straw of paddy. There was also found near about the body a dirty piece of white blood stained cloth, a blood stained pabusal (sickle) and skin of palm tree also containing blood stains. It is also stated that the Sub-Inspector found some blood stains on the floor of one of the middle rooms adjoining the eastern, most room. He scraped the earth and had sent them along with the sickle, the blood-stained straw, the white blood-stained cloth and the skin of the palm tree to the Chemioal Examiner who found human blood in all except the sickle and the scraped earth.

The learned Sessions Judge found as a fact; (l) that the appellant had assaulted Mombati either with brickbats or with stick or with both in order to prevent her from scaling over the wall and getting into her rooms, (a) that she and her husband were the only inmates of the house, (S) that the possibility that Bajo Singh {the appellant''s husband), who was an inmate of the house, might have murdered the girl could not be ruled out, (i) that the dead body had been kept concealed in the room for which the occupants of the room must be held responsible, (6) that Agni chokri who had given evidence before the police that the appellant had murdered the girl by cutting her with pahaaul had been gained over by the defence, (6) that it was only upon Agni chokri''s assertion of the appellant having committed the murder that she shut the door and bolted it from inside in order to prevent Mombati from entering into her house when Mombati wanted to do so in order to search the rooms, (7) that Mombati having been instrumental in getting the appellant, a young woman of IS or 16, married to Bajo Singh, an old man of 70, the accused felt exasperated and with an immature brain like hers engineered a plan like this for avenging the wrong done to her by her sister, and (8) that all these circumstances lead to an irresistible inference that the appellant by preventing the people from entering into her house in order to make a search for the de-ceased girl wanted time and opportunity for disposing of the dead body and thereby to cause disappearance of the evidence of murder with the intention of screening the offender. On these findings he found her guilty and convicted and sentenced her as above.

There can be no room for doubt that some of these findings cannot be sustained on the evidence on the record. [After considering the evidence, his Lordship concluded that the appellant did not commit the murder. His Lordship then proceeded. I would, therefore, entertain no suspicion against the appellant that she was implicated in the murder of the child. I have dealt with these circumstances at some length in spite of the appellant''s acquittal of the charge of murder for the reason that these circumstances have influenced the learned Sessions Judge''s mind in the direction of the accused''s guilt. As I have already said, to my mind, however, the circumstances do not at all give rise to any suspicion of the kind entertained by the Judge in the Court below.

In the circumstances already dealt with, the only fact that remains is that the appellant is one of the two inmates of the house in which the dead body of the murdered child was found concealed, and further that in the absence of her husband she did not permit either Mombati, her sister, or any of the villagers to enter into her house in order to make a search. The, question arises whether these two circumstances put together would make out a case against the appellant of her having been an accessory at the commission of the murder. I will assume for this part of my judgment that she knew that the dead body of a murdered child had been concealed in one of her rooms. I must say that there may be no sufficient reason for this assumption because in view of the shortness of time between the alleged murder of Baohia and the time when a search was made for her she might not be expected to have been to that room which on its very nature is one not often likely to have been resorted to by her and I shall next assume that she prevented outsiders from going into her house in the absence of her husband in order to prevent its discovery. Here, one must have to assume that the dead body had been concealed either by her husband or by any other felon with the consent and connivance of her husband. Let us examine in this context whether on these assumptions of facts she could be held guilty of the offence u/s 201, Penal Code. It should be observed that there is absolutely no evidence that she had anything to do with the concealment of the'' dead body. Disappearance of the evidence of murder in this case in order to screen the offender must consist in removal or disposal of the dead body in a manner and to an extent so as to cause the evidence of murder disappear. If she has not removed the dead body from where the child was murdered and if she has not concealed the dead body under the straw and at the darkest corner of a solitary and almost unused room, the question arises what else she has done to cause the evidence of murder disappear. The concealment of the dead body in the manner and at the place was an accomplished fact by the time Mombafci appeared at the appellant''s door, and the appellant, let us assume, being actuated by the motive that she should not allow detection of her husband, did not permit an outsider to get into her house without at the time doing anything to the dead body or to the blood-stain-ed articles or to the blood-stained spot. If she has done this and nothing more, it cannot be held that she did anything to cause disappearance of the evidence of murder with the object of screening the offender. In considering this aspect of the case, it is to be remembered that it is quite plain on the evidence on record that she had been telling from the very beginning that she Would open the door or allow anybody to come into the house only if her husband permitted her to do so. Here the special relationship between a husband and a wife has also to be taken into consideration. Under the law she is completely privileged from disclosing any communication madritiy'' her husband to her during the of their marriage which was sub- at the time. It is the policy of the law as well that a wife should not be guilty of harbouring her felonious husband because the law conceives a legal unity between the spouse B. Are hold''s Criminal Pleading, p. 19:

A married woman cannot be treated as an accesory after the fact for receiving her husband, knowing that he has committed treason or felony, nor for concealing felon jointly with her husband: B. v. Mary Good : 1842) I.C.K. 185 : 174 E.E. 768

This common law principle was modified in England by the Criminal Justice Act of 1925 to the extent that for a wife''s action coercion from her husband is no longer presumed, but must be proved. Russell on Crimes (Edn. 9) p. 868:

A wife is not answerable for her husband''s breach of duty, however fatal, though she is privy to his misconduct, if no duty in cast upon her, and she is merely passive" R. v. Squire.

Applying this principle which is applicable to the conduct of a wife in relation to her husband''s crime, what has the appellant done in this particular case? She has not allowed outsiders to trespass into her house, which must be? in her keeping but under the domination of her husband, without the latter''s order or consent. Was she under law bound to invite outsiders and show to them the dead body of the murdered child? She was not bound to do so. She could, without committing any offence, keep mum over the matter, or could obey her husband''s command to the effect "Do not allow anybody to get into my house during my absence." As between the husband and the wife, the later ''a right of occupation is limited and she is not in" law entitled to introduce anybody into the house against the wishes of her husband. I shall observe that in this tenor of discussion I, in agreement with the learned Sessions Judge, am assuming that it may be that her husband had committed the murder and had concealed the dead body inside his house, and I go further and assume that he had also commanded his wife not to allow anybody to enter into the house lest his offence may be detected. If she simply followed her husband''s behest and refused to-give him away, either by disclosing the communication received by her from her husband by speech or by act, she committed no offence as she owes no duty in this respect, on the-contrary enjoys a privilege in the eye of law. I should quote a passage from an article on the legal unity of husband and wife published in the Modern Law Review, vol. 10, No. l, page 20:

First, a spouse is not a competent, or not a compelahle, witness against the other spouse in certain criminal cases. Second, spouses are not compellable to disclose communications between each other during marriage. These exceptions can be regarded as resting on grounds of policy, or on the repulsiveness of compelling evidence, not on the fictitious unity of the spouses. According to the text-writers, a husband and wife cannot be guilty of conspiring together. It seems fairly clear that this rule, if it exists, owes its origin to the doctrine of unity, or at any rate, to the doctrine of the wife''s subordination.

In the same article at page 26:

One other rule of the criminal law may be mentioned before passing on. A wife who hides her felon husband from justice is not guilty as an accessory after the fact to the felony, but a husband who hides his wife is. It seems that originally the rule was merely that a wife who receives her felon husband does not become an accessory; the generalisation that she could never be an accessory after the fact to her husband''s felony seems to be a later development. The rule may be justified as a concession to inevitable human feeling, though of course this justification would require that the rule should also work the other way round, which it does not. However this may be, the fact that the rule does not work in the same way for both sexes: seems to show that it is not a deduction from the idea of unified personality. If there is any technical doctrine behind it, it is the doctrine of the man''s protest over his wife, not the doctrine that the wife has no separate personality.

In what I have said above, I shall not be understood to say that if a wife cause a disappearance of evidence of a crime committed by her husband, she will not be guilty under the section. But what I have said is this that as a result of legal unity of spouses, and also a moral one, which it is the policy of the law to respect and maintain on humanitarian ground and for peace in society, if the wife refuses to disclose information that will lead to detection of her husband''s crime, or as in the present case she refused admittance into her husband''s house where she is living for fear of incurring her husband''s displeasure and out of regard for her husband''s domination over her, no inference should be deduced therefrom so as to ascribe to . her any criminal intention or motive.

Quite apart from her relationship as a wife, it can be supported on precedent that all that has been done by her in this case does not and cannot make her guilty of the offence of causing disappearance of evidence of a crime u/s 201, Penal Code. I should in this connection refer to the case of King-Emperor V. Rajan 1905 Cri. LJ 124 : 3 cri. L.J. 186. The head-note which has been correctly prepared reads:

Where accused, finding in her house the dead body of a girl who had been murdered by her son, locked the outer door without moving the corpse or concealing it, held, that she was not guilty of an offence of causing disappearance of evidence of a crime u/s 201, Penal Code.

In consideration of what I have said above, I am strongly of opinion that the prosecution has failed to bring the charge home to the appellant. Her appeal, therefore, is allowed, the order of conviction and sentence is quashed, and I direct that she be discharged from her bail bond forthwith.