Lalji Dusadh vs Emperor

Mullick, Ag. C.J.

This case comes before us on a reference u/s 374, Criminal P.C., by the Sessions Judge of Muzaffarpur and also on appeal by the prisoner Lalji Dusadh alias Lalji Mullah.

The appellant is alleged to have robbed and killed a young man named Abdul about 8 p. m. on 9th November 1926. For the robbery he was charged under Sections 392 and 397, I.P.C., and tried by a jury of five. For the offence of murder he was charged u/s 302, I.P.C., and tried by the Sessions Judge with the help of the above jurors sitting as assessors.

The unanimous verdict of the jurors in the trial for the offences under Sections 392 and 397 was that the appellant was guilty. The opinion of the assessors on the charge of murder was to the same effect.

The learned Sessions Judge, agreeing with the assessors, has sentenced the appellant to death for the offence of murder. Agreeing with the jurors he has also found the appellant guilty of the offences under Sections 392 and 397, but he has passed no separate sentence.

The appellant is thirty years of age. His home was in Mauza Mushari in the district of Muzaffarpur and he belonged by birth to the Mallah caste. About two years before the murder he was out-casted in consequence of an intrigue with a Dusadh woman named Kanchania who lived in mauza Madhopur in the same district and he became a Dusadh. He lived with her for two or three months in Madhopur and then emigrated to the district of Dinajpur taking her with him and one infant child. Later his mother joined him with his other child and thereafter for five or six months in 1926 he worked as a labourer in the service of one Anjor Sahai in mauza Nashipur in the district of Dinajpur.

The deceased Abdul was twenty-five at the time of his death. He came to Dinajpur when he was quite a child and worked there for about twenty years. He was a Goala by caste and the name given to him by his parents was Munia, but he became a Mussulman later on and took the name of Abdul. He lived at Nashipur and worked first as a grass-cutter and then as an agricultural labourer.

On 8th November, Lalji, with his wife, mother and two children, started from Dinajpur for Madhopur. Abdul accompanied them and the evidence is that Lalji told him that he would get him married as he had no wife. At about 11 a.m. on 9th the party arrived at Shekra station which is ten miles from Madhopur. There was some trouble about Abdul''s ticket. Apparently it could not be found and the result was that he had to leave his bundle behind containing some brass utensils, a chaddar, some clothes and some rice.

We have no evidence as to the subsequent movements of Abdul till about 9 p.m. when he arrived bleeding from several wounds on the head and body at the bathan (cattle pen) of Hitan Missir of Salaha which is about one mile from Madhopur. Adhin Goala, who has a neighbouring bathan and had come out to feed his cattle, saw Abdul go and sit in Hitan Missir''s bathan. Adhin''s cries brought Hitan Missir to the bathan. The chaukidar Chauhuddi was next fetched and other people came. Whether Abdul was able to make any coherent statement is a matter of controversy in this case and will be discussed later. The president panchayat, Ramphal Tewari, was then fetched and drew up a short report which he handed over to Chauhuddi. Chauhuddi arrived at the Muzaffarpur police station at 7 a.m. on 10th and laid an information before the Writer Head Constable Sudhist Narayan Singh who was in charge. The head constable arrived at Salaha about 8 a.m. and found that Abdul was dead. He sent the body to Muzaffarpur for post mortem examination and was engaged the whole day in making investigations.

On the bank of a circular piece of water called a "man" 250 paces from the bathan of Hitan Missir, the head constable found large patches of blood and a bundle containing two nets, some cotton thread, a penknife, a razor, a medicine bottle and a dhoti. Near the bundle was a small stick made of jute wood. It is in evidence that the nets belonged to the appellant Lalji.

On 11th November the Sub-Inspector of Muzaffarpur took charge of the case and the appellant was arrested about 1-30 p.m. In consequence of a statement made by him, his wife Kanchania delivered up to the Sub-Inspector Rs. 39 and gold coin of the Muhammadan period in India which she was carrying upon her person. Also, in consequence of information given by the appellant, the "man" was searched, and in water about thigh deep a heavy hasua was found.

On the 13th the appellant was produced from jail before a Deputy Magistrate at Muzaffarpur in order that his confession might be recorded. The appellant, however, did not make a confession, but he made an exculpatory statement in which he admitted that he had come with Abdul to Shakra and had then walked with him as far as the village of Titra (four miles from Shakra) where he had parted company with him. According to the appellant Abdul said that he was going to Muzaffarpur, but it does not appear that Abdul had any home of his own at Muzaffarpur. The appellant says his mother halted on 9th November in the house of a Dusadh at Titra. Where he and his wife slept on the night of the 9th there is nothing to show, but on the 10th he slept at the house of Sirtaj Singh of Madhopur.

It appears that the police found Kanchania in the house of her father at Madhopur on the 11th and on information given by her Lalji was found in a kharour (field of high grass) in Madhopur about half a mile or a mile from that house.

I do not think that there is any reason for doubting that the deceased Abdul came with Lalji from Dinajpur where they had been working together and that he was last seen in his usual health at Shakra station about 11 a.m. on the 9th November.

The "man" on the bank of which the blood was found is on the way from Shakra station to Madhopur. It is on the boundary between mauzas Baikutpur and Salaha and is about one mile from the house of Kanchania''s father. It is 6 or 7 miles from Shakra and 2 or 3 miles from Titra where the appellant says he halted for a little time with Abdul. There are no houses anywhere near. The blood on the ground has by analysis been found to be human.

The witnesses Adhin and Hitan, who next saw Abdul, live in Salaha. Those who came afterwards live either in Salaha or Baikutpur or Madhopur.

Girdhari and Anjor, the two Dinajpur witnesses, identified as Lalji''s the two nets found in the bundle which was discovered near the blood patches on the bank of the man. It may be said that one cannot rely on this identification as there do not appear to be any special marks but on the other hand the accused was originally a fisherman by caste and would be expected to know how to make nets and there is nothing to show that the two Dinajpur witnesses are deposing falsely. Girdhari and Anjor also establish that the gold coin handed over to the police on the 11th by Kanchania belonged to Abdul. It is an old Badshahi coin and not likely to be easily mistaken. Girdhari deposes that Abdul told him that he had bought it from a man called Kalhu Nonia for Rs. 26 and that he wanted to sell it; also that he had bought it to have it threaded to wear round his neck. Anjor also identifies the coin. The man Kalhu Nonia from whom the coin is alleged to have been bought has not been found.

With regard to the hasua found in the "man" on the 11th both Girdhari and Anjor identify it as the appellant''s. They say that, although it is an ordinary hasua, they recognize it by the handle and by the blade and that Lalji used to cut bamboos with it in Dinajpur. It is a heavy weapon and capable of causing the injuries from which Abdul died.

These injuries were five severe wounds on the head and two slight wounds on the right shoulder. The Civil Surgeon deposes that death was due to shock and haemorrhage caused by the wounds, especially those which caused the fracture of the skull.

Except the statement of the deceased which is alleged to have been recorded by the President Panch, Ramphal Tiwari, there is nothing to show where the deceased lived. In this statement it is recorded that he stated that his home was at Madhbalia, thana Masrakh, district Chapra. If that is correct then Shakra was not the station where Abdul would in the ordinary course have alighted and there is no reason why he should have gone to Muzaffarpur. It will be remembered that the appellant in his statement before the Magistrate on the 13th November said that he last saw Abdul in Titra when Abdul said that he was going to Muzaffarpur. I think this statement is only partially correct and that Abdul was with him up to the time of the assault. There is no evidence to show where the appellant spent the night of the 9th and I think the prosecution might with advantage have called Kanchania even though she is the appellant''s wife. The appellant stated in his statement before the committing Magistrate on the 22nd December 1926 that he went to Sirtaj Singh on the 10th. This man might also with advantage have been called and so also Ramdhani, the father of Kanchania. If the prosecution did not consider that these witnesses could be relied upon to speak the truth, they should have asked the Court to examine them and the witnesses could have been cross-examined by both sides.

The trial was also defective in another respect. I find that the inquest report which the writer Head Constable drew up immediately on arrival at the bathan of Hitan Missir states that the name of the deceased was not known. As the evidence given in Court is that before he died the deceased gave his name, his father''s name and his address to the President Punch, the writer Head Constable should have been asked the reason for the omission in the inquest report. He should also have been asked why, if it was known then that Lalji was the man who had committed the murder, no attempt was made to arrest him on that day. The Writer Head Constable appears to have been very active in examining witnesses in the neighbouring mauzas for he deposes that he did not return to Muzaffarpur till midnight. The prosecution should also have given evidence as to when the Dinajpur witnesses were examined for the first time by the police so as to show that the dying declaration alleged to have been made by Abdul could not have been fabricated to accord with any information obtained from these witnesses.

The above omissions on the part of the prosecution have thrown considerable doubt upon the genuineness of the dying declaration made by the deceased and the learned Judge has not relied upon any of them; but I think there is internal evidence to show that the witnesses who depose to them are not intentionally giving false evidence. (The judgment then discussed the evidence and proceeded.) But apart from the statements by the deceased the circumstantial evidence is quite sufficient to support the conviction.

The deceased came with the appellant as far as Shakra and started from that station in his company. He is not seen again, but his hasua is found in the "man" one mile from the house of the appellant''s father-in-law. The appellant''s bundle is found on the bank of the "man" and the earth close by is stained with human blood. Immediately upon arrest on the 11th the appellant makes a statement in consequence of which the deceased''s gold coin is found in the possession of the appellant''s wife and is given up to the police at his request and the accused''s hasua is found in the "man." Also the appellant gives no account of where he went after he parted company with the deceased and where he slept on the night of the 9th; and his statement that he left the deceased at Titra must be false.

The learned vakil for the appellant has attacked the evidence regarding the finding of the hasua. He says that Hira Dusadh, the man who got into the water and found the weapon, is at enmity with the appellant and put the weapon there. It is suggested that Hira is the headman of the Dusadhs of Madhopur and bears a grudge against the appellant for having misconducted himself with Kanchania. There is no evidence to support this suggestion. The evidence conclusively shows that when he was asked by the Sub-Inspector where the weapon was the appellant took the Sub-Inspector to the "man" and the weapon was found after some delay. The learned vakil objects to the admissibility of that part of the statement which refers to the weapon as the one used for attacking the deceased; but in my opinion Section 27, Indian Evidence Act, is quite clear upon this point. It is contended on the authority of some cases that the prosecution is only entitled to prove that the accused, in answer to a certain question, gave information which led to the discovery of the weapon; but common-sense requires that the discovery should be connected with and be relevant to the investigation. The omission to connect the weapon with the offence would render the provisions of Section 27, Indian Evidence Act wholly nugatory. The whole confession of a prisoner in police custody cannot of a course go in but where the confession includes a a statement that a weapon was used for committing the offence charged that part of the confession can certainly go in if it leads to the discovery of the weapon. The most recent case on this point is In Re: Sogiamuthu Padayachi and Another, .

For the same reason evidence could have been given to show that the appellant stated immediately upon arrest that he had given the deceased''s gold mohur and money to his wife. But as the record stands at present all we have got is that the appellant made a certain statement and that in consequence of that statement the gold mohur and Rs. 39 were given up by Kanchania.

But even on the record as it stands the discovery of the gold coin in Kanchania''s possession taken with the other evidence in the case conclusively shows that the appellant was the person who caused the death of the deceased.

The learned vakil has also taken a point that it was not permissible to the Grown to have the statement of appellant recorded u/s 164, Criminal P.C. on the 13th as the statement was not a confession. The answer to this is that the accused was sent up to have his confession recorded and that he gave the police to understand that he would make a confession. After a night in jail he changed his mind, and when he appeared before the Magistrate it was open to him to say that he would make no statement; but he did not follow this course; he was warned and notwithstanding that he proceeded to make a statement. This statement is certainly evidence of conduct.

A further legal point is taken with regard to the dying declarations. It is contended that so far as the charges for the offences under Sections 392 and 397 are concerned the dying declarations are not admissible under. Section 32(1), Indian Evidence Act inasmuch as the cause of the deceased''s death does not come in question in the trial of those charges. It is contended that on this point the Indian law is the same as the English law and that a dying declaration as to the cause of death is only admissible when the causing of death is the subject of the charge. I cannot agree with this view The words of Section 32 are very wide and it is not necessary that the charge should be one of homicide. The evidence as to the cause of death was relevant to the charge of robbery and consequently the cause of death, that is to say, the assault committed by the appellant came in question in the trial. Before the Indian Evidence Act was enacted it was held in Queen v. Bissorunjum Mookerjee [1866] 6 W.R. Cr. 75 that there was no necessity in India for following the very narrow rule of English law and that a dying declaration could be used as evidence in a charge of rape. One of the illustrations to Section 32 of the present Indian Evidence Act expressly provides for such evidence where the charge is not culpable homicide but rape.

Moreover, in this case the dying declaration was also admissible u/s 8, Indian Evidence Act, as a part of the res gestae. A statement made by the deceased immediately after the robbery regarding the robbery and also regarding the assault committed in the course of the robbery was admissible though the person who made it cannot be called to depose to it on oath. The truth in Sections 8 and 32, Indian Evidence Act may overlap in some cases, but they provide for different and distinct conditions. A statement, for instance, which would not be admissible u/s 8 may be admissible u/s 32.

The result, therefore, is that in my opinion the assessors and the jury were right in the view which they took of the guilt of the appellant. The appellant is guilty both of robbery and murder. Having regard to the injuries there can be no doubt that it was his intention to cause such injuries as would in the ordinary course cause death. His motive was robbery and he appears to have attacked his victim from behind without giving him a chance of protecting himself. I agree with the learned Sessions Judge that the sentence of death is the only possible sentence and the order of the learned Judge must, therefore, be confirmed. The convictions for the offence under Sections 392 and 397 are also affirmed but it is unnecessary to pass any separate sentence for this offence. The appeal is dismissed.

Wort, J.

I agree.