Lokhono Sahu vs Emperor

Manohar Lall, J.—This is a jail appeal by three persons who have been convicted by the learned Sessions Judge of Ganjam Puri for an offence under S. 392 in a trial held with the aid of jury and with the aid of the same gentlemen acting as assessors for the allied offences under ss. 302/34 and 201/34, Penal Code. The gentlemen of the jury at the close of the trial returned a unanimous verdict of guilty under S. 392, Penal Code, and as assessors they were of unanimous opinion that the accused were not guilty under s. 302/34, Penal Code, but that they were guilty under s. 201/34, Penal Code. The learned Sessions Judge agreeing with the unanimous verdict of the jury and also accepting the unanimous opinion of the assessors has convicted the accused under S. 392, Penal Code, and sentenced them to seven years'' rigorous imprisonment each and to a fine of Rs. 25 each. He has acquitted all the accused for the offence under S. 302/34, Penal Code, but has convicted all the accused under s. 201/34, Penal Code, and sentenced them each to rigorous imprisonment for a term of one year and a fine of Rs. 25 the sentences are directed to run concurrently.

In order to appreciate whether there is any a substance in this appeal it is necessary to give the prosecution case in brief and also to indicate shortly the evidence which was led on behalf of the prosecution to establish that case. In village Mundamarai, police-station Aska, district Gunjam, the deceased Khalli Sahu and one Kalu Sahu were jointly carrying on the business of a grocery shop. In the morning of Wednesday, 18th February 1942, the two partners were discussing proposals to purchase commodities at Berhampur to replenish the stock in the shop which had fallen short. They decided that the deceased would go the following day early in the morning by an omnibus to Berhampur and two cartmen, Gopobondhu Das and Bhubana Goada, were sent in advance so that after the commodities had been purchased at Berhampur they would be sent back in these carts. It is stated that the accused Kalu Dakua, a barber by profession, went to shave the deceased Khalli Sahu at his shop and heard the conversation between the partners who had arranged to take with them a sum of Rs. 300 to make the purchases at Berhampur-this sum was kept in a box in the shop. The same evening at about 9 P. M. the accused Lokhono Sahu also went to that shop to make some purchases. Soon after this, the business of the day being over, the shop door was closed and the two partners went to their respective houses to take their evening meal. The two partners used to sleep in the shop in the night, but owing to some reason Kalu Sahu had recently engaged cine Bauri Sahu to watch the shop during the night on his behalf. On this particular evening Dasakathia performance was being held in the neighbouring village Damodarpur and therefore, Bauri Sahu went to witness it along with Ghono Subudhi and some other of the village after informing the deceased that he would be coming to sleep in the shop a little later about midnight. The deceased after taking his meal that night with his brother Narono Sahu went to the house of Lakshmi Narayan Das Revenue Inspector of some estate, in order to make some arrangement; to watch his house as requested by the Revenue Inspector who was hen on tour. On reaching that house the deceased found that the Revenue Inspector had already returned home and after having a little chat he went to answer the call of nature towards the canal side. After this the deceased left for his shop after informing the Revenue Inspector that he would be going to Berhampur the following morning. The deceased separated from the Revenue Inspector at about 11 P. M. Soon after this Bhimo Sahu, who used to watch the shop of one Kama Murty, while going to sleep in the shop noticed that the deceased was reading a part known as Birat Parva from- the book which is said to belong to the accused Tarini Sahu.

One Joyo Gowdo, another co-villager also saw that the deceased was reading with the aid of a lantern. But after he returned from answering the call of nature he found that the light was off and the door of the shop was closed. This was the last time that the deceased was seen alive. At about 12 P. M. Bauri Sahu came to the shop and finding the door shut called out to Khalli Sahu, but as he did not get any response he came back and slept in his house in the night. In the morning at about sunrise Bauri Sahu went to the shop and met the other partner Kalu Sahu who had already proceeded to the shop as usual at that time. Kalu Sahu found the door planks of the shop closed, knocked at the door and not getting any response peeped through the openings between the planks and saw a man lying down whom he took to be Bauri Sahu. He thought that Khalli Sahu might have gone out from the backyard to pass urine. He then asked Bauri Sahu who had by that time come to the shop to enter the house by the backyard and open the front door. Bauri Sahu went inside and found Khalli Sahu lying dead with a number of injuries on him. The box which is said to have contained Rs. 300 was found missing. Information of the occurrence was given to the Sub-Inspector at about 7 A. M. on 19th February 1942, who drew up the first information report, Exhibit 1.

In order to prove that the three appellants were actually concerned in this serious : crime the prosecution relied upon the evidence of Magotuni Beherani, a widow aged about 20 who states that at about midnight on 18th February 1942 she saw the accused Lokhono Sahu and Tarini Sahu going to the shop of the deceased (this woman is a neighbour of the accused who lives on the other side of her house, a lane intervening). She says that after this she entered her house, served her father his meal for the night. After this her father, Bhimo, left for the shop of Rama Murty where he used to sleep in the night. She then says that after finishing her meal, she spread her bed and went out this time with her youngest child to allow it to urinate. When she was about to get into her house, so is her evidence, she saw this time all the three accused coming, from the side of the shop of the deceased. These persons went up to her house and the barber accused had a box in his hand and stood on the steps of her house. The other two accused also came up and stood on the verandah and Lokhono requested her to keep the box in her house which she refused even though she was tempted that if she agreed to keep that in the house she would be allowed to share the cash which was in the box. She says she suspected something wrong because she found that the two palms and fingers of Lokhono were drenched with blood. She was anxious to know whose box it was and bow all the accused brought it, whereupon it is stated that Lokhono said that he had killed Khalli and so had secured the box. The woman refused to keep the box through fear. The accused thereupon slipped away with the box after warning her that if she disclosed the incident to anybody they would kill her as they had killed Khalli. The accused Lokhono had a shirt on his shoulder which she says fell down in her house but later on, in the course of the police investigation, this shirt was found wrapped up in the bed of this woman.

The prosecution have also adduced some further evidence with regard to the concealment of the box. Tarini Sahuani, aged about 80, states that on a Friday, that is to say, on 20th February 1942, Kalia, the barber accused came to her with a wooden box and asked her to throw it somewhere, but she refused. Thereupon he said that he would throw it in the backyard of a neighbouring house which was vacant and going to the backyard threw it there. She says that she told about this incident to her neighbour, Dukhi, the same evening. Dukhi, who is also a witness for the prosecution, supports her in this statement. Dukhi is related to the barber accused who is a son of her first cousin. It is suggested that the witness Dukhi Beherani is on terms of enmity with the barber accused. Such in brief is the prosecution evidence which directly implicates the three appellants.

In the course of the investigation the Sub-Inspector of Police in the presence of witnesses made a search of the houses of the three accused and of the house of Magotuni Beherani. On 20th February he directed the Assistant Sub-Inspector to search the house of Tarini Sahu and recovered from his house a book which the deceased was supposed to be reading on the fatal night and which appeared to have blood stains on the last two pages. On the same day the house of Magotuni Beherani was searched and the Sub-Inspector suspected that he found blood marks on the front door of the house. He also recovered a shirt which he thought contained blood marks-this shirt has been identified as belonging to the accused Lokhono Sahu. The Sub-Inspector seized scrapings from the western wall of the room of this woman as he thought they appeared to contain blood marks. The house of the barber accused was also searched because the previous evening the Sub-Inspector found his father leaving the house with a cloth on his person which he thought contained some blood stains. The next morning while the house was searched blood marks were suspected on the inner side of the door of his dando house and pieces from it were seized. The house of accused Lokhono was also searched and a red and green bordered cloth and an earthen pot were seized as they appeared to contain some blood marks. All these articles were sent to the chemical examiner for a report which is to the effect that no blood has been detected in the stains on the earth, wood scrapings, etc., or on any of the two red bordered cloth and the pieces of wood; but blood was detected in the stains on the wooden plank, on the portion of door, on the white torn half shirt, on the small portion of wood from the door, on the black bordered cloth, on the book and on the green plush red bordered cloth as well as on the stains on the clod of earth and pieces of earthen pot. The report of the Imperial Serologist was to the effect that the blood stains on items 18, 19, 23, 24, 25 and 26 (that is to say, scrapings of the door portion, earth, book, cuttings from the cloth and earthen pot pieces) were disintegrated and their origin could not be determined. Items 17, 21, 22, however, were found stained with human blood. These are cuttings from the wooden plank, cuttings from the door piece and cuttings from some pieces of cloth.

The defence of the accused was that they were innocent, that they did not kill the deceased nor did they carry off any box from the shop of the deceased, and they challenged the identity of the box. With regard to the evidence of Magotuni Beherani, Lokhono said in his examination that she is a woman of bad character and that owing to some dispute she is deposing against him. He denied that the shirt which was said to have slipped from him in the house of Magotuni Beherani belonged to him. Tarini Sahu also stated that the woman Magotuni and her father are on terms of enmity with him and, therefore, they are falsely deposing against, him. He admitted that the book which was recovered from his house belongs to him but denied that this book contained any stains of human blood. The barber accused admitted that the napkin and the door which were seized by the Sub-Inspector belonged to him, but denied that they were stained with any blood at the time of the seizure. He also denied that he took the box and requested Magotuni Beherani and Tarini Sahuani to keep the box for him.

I have already given the verdict of the jury and the opinion of the assessors. The evidence of the prosecution which I have summarised above leaves no room for doubt that if the evidence is accepted the accused would be guilty of the offence of robbery and murder. But the verdict of the jury and the opinion of the assessors appear to be irreconcilable when they have convicted the accused of the offence of robbery with violence but have acquitted these very accused of the charge of murder, the two offences depending upon the same evidence. But however perverse and difficult to understand the verdict of the jury may be, this Court has no power to interfere unless there has been a failure of justice due to any misdirection or no direction to the jury; I, therefore, proceed to consider the charge which the learned Judge delivered to the jury in order to find out whether the verdict was due to their misunderstanding the legal position or to their becoming confused in understanding the evidence in the case in the light of the directions which the learned Judge gave or which he should have given to the jury. As the accused and the Crown were unrepresented in this case, I took time to consider my decision and have read the charge of the learned Judge to the jury several times and have also perused the entire evidence on the record.

It is desirable that the Judge who delivers his charge to the jury should refrain from citing reported cases or well known text books to the jury. The jury should be told the law which they must accept as correct from the Judge in a short and concise manner. Further the question of the admissibility of evidence should be determined by the Judge himself as this is beyond the province of the jury. In the present case the learned Judge has freely placed before the jury the case reported in The King Emperor Vs. Barendra Kumar Ghose, . He has also quoted from Wills on Circumstantial Evidence, pages 6 and 44 of 1912 edition. The learned Judge in para. 39 of the charge observed as follows:

A. point was taken by the learned advocate for the accused that the statements made by witness 10 in this trial before you are inadmissible in evidence and should not have been at all accepted. Witness 9 for the prosecution is Tarini Sahuani. While setting out the prosecution case I have already stated as to what in substance the statements of Tarini Sahuani are. This witness further adds( that immediately after accused 3 left her she told of this visit of the accused to her neighbour Dukhi Sahuani who is P. W. 10. The learned advocate for the accused maintains that as Dukhi Sahuani states nothing more than what she heard from Tarini Sahuani, to admit the statements of Dukhi Sahuani will offend the principle of law that hearsay evidence is inadmissible.

The learned Judge then proceeds to give his reason why this objection by the learned advocate for the accused was incorrect and cites s. 157, Evidence Act. In my opinion this procedure was wholly indefensible. Once the evidence has been placed before the jury no further argument is admissible that the evidence is inadmissible. If the evidence was inadmissible, the learned Judge should have refused to place it before the jury. The stage at which objections ought to be allowed to be raised and decided about the admissibility of any pieces of evidence is when the evidence is going to he tendered or given. The jury ought not to be left to decide the objection as to the admissibility of any evidence. In several places in the charge, the learned Judge has cited various sections of the Evidence Act, for instance S. 3, illust. (a) to S. 114 and s. 157. In my opinion, this merely adds to the confusion of the laymen who have to act as jurymen and this should be avoided.

The principal witness in the case, as I have already indicated, was Magotuni Beherani. Her evidence is so extraordinary and apparently so unconvincing that one would expect that the learned Judge would give clear directions to the jury how to weigh this evidence. The evidence on the face of it appears to be no better than the evidence of an accomplice. This woman, according to her own story, was cognisant of the crime. The three accused came to her house with the booty in their hands which were then dripping with blood, their shirts were bloodstained, and still she did not give information of this to anybody else on the plea that she may be killed also. This woman stated in her cross-examination that on Thursday, 19th February 1942, the day before the search of her house, Karzi P. w. 17, came to her house and asked her if she knew anything of the incident but she told him that she did not know anything. Shortly after this another policeman questioned her in the same way and she told him also that she did not know anything about the incident. These statements have not been placed before the jury at any place in the charge by the learned Judge. Further, I do not understand how the shirt which was on the body of Lokhono would have fallen to the bed of this woman. The prosecution case is that the shirt was left in the house of this woman on the night of Wednesday and the shirt was recovered from the bed of the woman on Friday at about sunset. The woman said that she could not say how the shirt came to be rolled up in her bed. It appears to me that somebody might have created this evidence in order to produce an eye-witness. As I have said just now the evidence of this woman, if it is accepted at its face value, would appear to be no better than the evidence of an accomplice and therefore requires corroboration in material particulars. The learned Judge failed to warn the jury that they should not accept the evidence of this woman unless it was corroborated in material particulars. The evidence of this woman is extraordinary. She says that the two accused were going to the shop of the deceased before she gave meals to her father; her father on the other hand says that after he had finished his meals he went out (this is after the two accused were proceeding to the shop of the deceased) and saw the deceased was reading Mahabharat in his shop. I also find it difficult to believe that in February, Bhimo would be taking his meal at about 11 or 12 in the night, but however these matters were matters for the jury and this Court would have been powerless to interfere if the learned Judge had given proper directions to the jury.

While summarising the evidence as to the seizure and recovery of various articles from the house of the accused and of P. W. 8, in para. 33 of the charge, the learned Judge omitted to draw the attention of the jury pointedly to the fact that all the articles which were suspected by the police to contain human blood were not found to have contained human blood by the Imperial Serologist. A perusal of the charge in para. 33 would leave an impression in the mind of the jurymen that every article which is described therein contained human blood. I do not find any warning in the whole of charge that the jury should not accept the opinion of the Sub-Inspector that certain articles contained human blood merely because he suspected that the blood stains were of human blood unless that opinion was corroborated by the report of the Imperial Serologist.

If the charge to the jury is now read after keeping in view the misdirection and non-directions which I have mentioned above it is not surprising that the jury were hopelessly confused by the charge of the learned Judge. The result at which they arrived is contradictory and irreconcilable, namely that the three accused are guilty of the offence of robbery with violence (s. 392, Penal Code) and not guilty of the offence of murder (S. 302/34, Penal Code). The evidence to connect the accused with either of these offences is identical, namely the evidence of P. W. S, Magotuni Beherani. The learned Judge himself has accepted the opinion of the assessors that these accused are not guilty of the offence of murder and, therefore, he has not believed the evidence of Magotuni Beherani.

It will be noticed chat I have not given my appreciation of the evidence of Tarini Sahuani, P.W. 9, and Dukhi Beherani, P.W. 10. It may be argued that the evidence of these two witnesses also lends support to the evidence to connect the accused with the offences under Ss. 392 and 302, Penal Code. The evidence of Tarini Sahuani is only to this effect that one of the accused Kalu came to her with a box and when she refused to keep it be himself threw it in the backyard of a neighbouring house. This evidence is highly unbelievable, and even if it is believed, it merely implicates one of the accused, namely, Kalu. The attention of the jury was not drawn to this fact that the evidence of this woman even if it is supported by the evidence of Dukhi Beherani-against whom as I have already indicated accused 3 asserted that she is on bitter terms of enmity with him - merely affects accused 3 and yet the jury might have thought that this evidence was quite sufficient to corroborate the evidence of Magotuni Beherani so that they returned a verdict of guilty under s. 392 against all the three accused. I should observe here that the learned Judge in para. 36 of his charge to the jury gave them this direction: "Gentlemen, the law is that more heinous is the offence the more rigid or stricter the proof shall he." This is not the correct view of the law, but as this direction is in favour of the accused no criticism can validly be advanced on behalf of the appellants in this case. The law is the same. whether the offence is heinous or not, the standard of proof is exactly the same, namely that the evidence should be such as to lead a reasonable mind to a satisfactory conclusion that the offence has been brought home to the accused.

The charge of the learned Judge to the jury consists of 22 typed pages. The charge is unnecessarily lengthy and, as I have stated above, appears to have confused the jurymen completely. It was, therefore, necessary that while concluding the charge the learned Judge should have briefly summarised the evidence against each of the accused. This he has proceeded to do in paras. 46 to 49 of the charge, but I regret to observe that the analysis of the evidence is such that it could have given no assistance to the jury. For instance, while summarising the case against accused l the learned Judge merely states that besides the evidence about recoveries and seizures as has been told by the Revenue Inspector, the Sub-Inspector of Police and the village Karji there are statements of P.Ws. 5 and 8. But P. W. 5 merely says that soon after 10 P.M. he saw Lokhono accused 1 cracking jokes with the deceased. This is no evidence at all that this accused was with the deceased after he shut up his shop, closed the doors and apparently retired to bed. Indeed the evidence of this witness might as well be taken to implicate himself as one of the culprits because a few lines afterwards this very witness says that he saw the deceased reading from a book in the shop. The learned Judge has not placed the evidence before the jury, who also had to act as assessors, under various headings which he should have done in this difficult case. For these reasons, I am of opinion that the verdict of the jury is vitiated and must be set aside.

Is there sufficient evidence then upon which we can direct a retrial? The learned Judge was required to give a proper judgment to satisfy the requirements of s. 367, Criminal P. C, when dealing with the charge under s. 302/34 and s. 201/34, Penal Code. He has given no reasons at all. All he says is that be accepts the unanimous opinion of the assessors. However, I agree with his conclusion that the accused on this evidence cannot he convicted of the offence under s. 302/34, Penal Code. The evidence of Magotuni Beherani is unbelievable and worthless. The evidence of Tarini Sahuani and Dukbi Beherani is also equally unconvincing and I place no reliance on this belated testimony. I disbelieve the case of the prosecution that accused l asked Tarini Sahuani to throw away the box in the backyard and on her refusal threw it himself in the backyard of her neighbor. I am also not satisfied that it has been proved satisfactorily that Rs. 300 was in the box and I think it is unbelievable that this accused would be carrying about the box in the manner suggested by the prosecution on the night of 18th February and on the evening of 21st February. I am also disposed to disbelieve the evidence of Tarini on the ground that it is inconceivable that while police investigation was going on accused 3 would think of going out of his house with the box to the house of Tarini and in such a suspicious manner as to fasten the guilt upon him when he was already suspected of having been a particeps criminis. For these reasons I would not direct a retrial.

With regard to the charge under s. 201/34, Penal Code, the learned Judge has not indicated in his judgment or anywhere in the charge to the jury what the concealment is which the prosecution seeks to prove in this case. Is it the attempted concealment to which Magotuni Beherani would not agree or is it the concealment in the backyard of the house of the neighbour deposed to by Tarini Sahuani? As I thoroughly disbelieve the evidence of Magotuni Beherani, the accused, in my opinion, should not have been convicted of the concealment of the box as deposed to by Magotuni Beherani. If the concealment consists in the circumstances disclosed by Tarani Sahuani, then I would observe in the first place that her evidence merely implicates accused 3 only. Further I am not satisfied that the concealment of this box, even if it is proved to have been concealed, is such a concealment as would come within the mischief of s. 201, Penal Code. But, in any case, I do not believe the & evidence of Tarini Sahuani at all. As to Dukhi Beherani she appears to have a special grudge against this accused. For the reasons which I have given at length, I would allow this appeal, set aside the convictions and sentences under ss. 392 and 201/34, Penal Code, and direct the accused to be set at liberty at once. The evidence is so worthless that I would not direct a retrial of the accused under s. 392, Penal Code.

Harries, C.J.

I entirely agree.