Mt. Punia Goalin vs Emperor

Bennett, J.—The appellant Punia Goalin has been convicted by the learned Additional Sessions Judge, Monghyr u/s 302, Penal Code, of the murder of Gajo Gope, and sentenced to transportation for life. The appellant is a widow residing in village Barajor, 3 miles from Police station Jhajha, in the Jamui Sub-division of Monghyr district. She has had three children, of whom one Sukar Gope, aged 14-15 years, survives. The deceased Gajo Gope was her husband''s younger brother, and the appellant and the deceased lived in the same angan in which they each had two rooms. The case of the prosecution is that the appellant has been a widow for 2 to 2� years and that there was an intrigue and illicit connection between her and the deceased with the result that the deceased''s wife deserted him and acquired a new husband. The deceased had been endeavouring to force the appellant to marry him in Sagai form, but she had declined to do so and some 10 or 12 days before the incident a panchaiyati had been held at the instance of the appellant. The result of the panchaiyati was drawn up in writing, which is Ex. 3. That writing contains a statement thumb-marked by the deceased inter alia to the following effect:

I cannot have any kind of connection with my elder brother''s wife. If do I, I shall be unfaithful to my community and shall pay a fine of Rs. 51

On the evening of the 16-11-1944, Musammat Mohini (P.W. 3) a neighbour had asked the deceased to irrigate her land in the early morning and as he did not come to the land as promised, she went to the house some time between 9 and 10 A.M. on 17-11-1944, to fetch him. She found the door locked and some blood on the osara. She asked the appellant about it and the appellant said that she and her son, Sukar Gope had murdered the deceased and locked the body in the room. Mohini informed Mangan Mian (P.W. 4) and others and went to bring the chaukidar. Meantime, Mangan Mian (P.W. 4), Abdul Rahman (P.W.5), Talo Gope (P.W.12), Gafoor Mian (P.W. 14), Muhammad Rasul (P.W. 15) and Karamat (P.W. 16) went to the house and questioned the appellant, and she repeated to them that to save her honour she had murdered the deceased. The chaukidar Phagu (P.W. 1) arrived and she again stated to all those present that she and her son had murdered the deceased and then at his request the appellant unlocked the room in which he and the others found the deceased''s dead body severely injured. The chaukidar entrusted the body to Bansi (P.W. 13) another chaukidar, and Phagu went straight to the Police station where he lodged the First Information Report at 2-30 P.M. The Sub-Inspector Sukhdeo Narain Singh (P.W. 17) went to the spot. He found blood like stains over an area of 3 square spans on the deceased''s osara, and the deceased''s body in his west room. He held an inquest and despatched the dead body for post mortem examination. In addition to the blood stains, he found on the osara a blood stained bed and two small torn pieces of cloth. He also found that an attempt had apparently been made to remove a part of the blood stains on the ground of the osara with water. He inspected the appellant''s clothes and her person and found that her sari was blood stained in two places but that there was no signs of injuries on her body. He also examined the person and clothes of the appellant''s son Sukar, but found no sign of blood stains or injury. The Sub-Inspector then searched the appellant''s house and recovered from her eastern room an iron tangi and an iron khanti. The appellant''s sari, the khanti and a sample of the earth on the osara were later certified as being stained with human blood. The Sub-Inspector then arrested the appellant and her son Sukar and took them in charge.

A post mortem examination of the deceased''s body was held by Dr. Bharat Prasad at 2-30 P.M. on 18-11-1944. He found that the stomach and the bladder were normal and empty. He also found, firstly, a lacerated wound 1�x1" on the deceased''s left leg below the knee with a compound fracture of the first tibia and tibular bone and the tibia bone smashed into pieces with blood clots round it; secondly, 5 incised wounds all of them skin deep only on the deceased''s legs and feet; and thirdly 12 abrasions on different parts of his body including his head, face, neck, chest and stomach. In the post mortem report, death was stated to be due to shock and haemorrhage as a result of the combined effect of the injuries particularly the first injury above mentioned on the left leg which was grievous.

The case for the defence was that the appellant was not guilty of the charge against her, and that the alleged confession was a myth, that, in any event, the evidence of the alleged confession was inadmissible because the evidence showed that there was one and only one confession alleged against her which was made to the chaukidar, a police officer, and therefore, in any event, inadmissible in evidence, that the deceased bad never wished to marry the appellant but only desired to have an illicit affair with her which the appellant had declined, that it was physically impossible for the appellant and for her son, Sukar to have inflicted the injuries found on the deceased and that from the circumstance brought out in evidence, it appeared that the deceased was murdered by some other person in the early morning after he had relieved nature either outside the house or on his verandah and thence removed to the west room in which he was found.

The importance to the case for the prosecution of the alleged extra-judicial confessions, first to Mohini (P.W. 3) and then, before the arrival of the chaukidar, to the other prosecution witnesses and again to all of them after his arrival, is obvious. Indeed, the learned Government Advocate finally conceded that, apart from the confessions, there was a reasonable doubt of which the appellant should be given the benefit.

It was stated before us that the appellant was defended at the trial by a young and inexperienced Advocate appointed in that behalf by the Crown and that, whilst performing his duty to the best of his ability, he failed to elicit and place certain evidence in the favour of the appellant which would have been elicited and placed by a more experienced colleague. In particular learned Counsel for the appellant contended that the depositions before the committing Magistrate of Chaukidar Phagu (P.W. 1), of Mohini (P.W. 3) and of Abdul Rahman (P.W. 5) should have been admitted in evidence u/s 288, Criminal P.C., and he applied for them to be admitted by this Court, as additional evidence. In answer to this application the learned Government Advocate drew our attention to the case in Nanhu Mahton Vs. Emperor, and the cases therein referred to and discussed. This Court in admitting additional evidence of this particular nature, is, of course in the same position in law, so far as the provisions of Section 288, Criminal P.C., are concerned, as is a presiding Judge thereunder. I. do not think that there is any difficulty in the interpretation of Section 288, Criminal P.C. The section provides that the duly recorded deposition of a witness before the committing Magistrate taken in the presence of the accused, may, in the discretion of the presiding Judge, if such witness is produced and examined at the trial, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872. The effect and purpose of the words "Subject to the provisions of the Evidence Act, 1872" is clearly to place such evidence on a par with any other tendered evidence and avoids such evidence being given any preferential standing. Thus, the general provisions of the Evidence Act, for instance, that evidence must be relevant must be fulfilled. Similarly, any particular provisions of the Evidence Act applicable to this class of evidence must also be complied with. So, for instance to the extent that it is desired to use the deposition to contradict the evidence of the witness at the trial, the provisions of Section 145, Evidence Act must be complied with. But, the object of admitting such a deposition at this stage of the proceeding may properly be to admit evidence upon a point not examined to at the trial either to supplement or explain the later evidence of the deposing witness or to contradict some other witness or witnesses, and there is nothing in the Evidence Act 1872, which requires that in such a case the attention of the deposing witness should have been called thereto, or therefore, to interfere with our discretion to admit the deposition u/s 288, Criminal P.C. When evidence is admitted for some such purpose at the trial the proper course is no doubt, to put the material passages to the witness and the failure of the presiding Judge to call the deposing witness''s attention thereto, may substantially weaken if not destroy the evidential value of the depositions, but that, as was pointed by Aikman J. in Emperor v. Dwarka Kurmi (06) 28 All. 683, is another matter. An appellate Court in deciding whether to exercise its discretion to admit such additional evidence on ''appeal has to consider whether in the particular circumstances of the case, the fact that the relevant passages cannot be brought to the notice of the witnesses, substantially weakens or leaves open to doubt the evidential value of the deposition. If it does, then the application to admit the additional evidence should ordinarily be refused. The Court will, of course, be most astute to detect any such doubt when the additional evidence is to be used to support a conviction.

I do not think that the above considerations conflict with the previous decisions of this Court in Lachhmi Lal Vs. Emperor, or in Nanhu Mahton Vs. Emperor, . In both those cases depositions had been admitted at the trial which were contradictory of and were used to contradict the statements of the deposing witnesses at the trial and the provisions of Section 145, Evidence Act had been illegally disregarded. In so far as the head notes to those two cases, which are taken from the judgment of Coutts J. in the former case, purport to lay down any general test of admissibility irrespective of whether the deposition is in fact used, to contradict the deposing witness, they were obiter to the actual decisions and to that extent, they are, in my respectful opinion, contrary to the plain wording Section 288, Criminal P.C.

As I understand it, therefore, the position is this, that before the deposition of a witness before the committing Magistrate is admitted in evidence at the trial u/s 288, Criminal P.C. if the purpose, as it usually is, is to contradict the evidence of the deposing witness at the trial, the provisions of Section 145, Evidence Act, 1872, must, as a matter of law, be complied with or the admission will be illegal; and, if the purpose be any other purpose and the deposition whether or not in fact contradictory of the deposing witness is not used to contradict him, the provisions of Section 145, Evidence Act need not in law but should, as a matter of common sense and prudence, be complied with lest the evidential value of the deposing be weakened or destroyed. Such a deposition can be admitted in appeal for any purpose other than to contradict the deposing witness although the provisions of Section 145, Evidence Act have not been complied with; whether or not it should be so admitted, is a matter which, in the exercise of its discretion, the appellate Court will decide according to the circumstances of the particular case.

Of the three witnesses whose depositions have been tendered as additional evidence for the defence in this appeal the attention of the Chaukidar Phagu (P.W. 1) and of Mohini (P.W. 3) was sufficiently drawn to the passages therein on which it is now thereby sought to contradict them and they are, therefore, clearly admissible. The attention of P.W. 3 was not drawn at the trial to the previous contradictory statement in her deposition and for the purpose of contradicting her, therefore, the deposition is inadmissible. Those parts of her deposition which are not contradictory of her evidence at the trial are, however, admissible in our discretion, both for the purpose of supplementing and explaining her own evidence and for the purpose of contradicting other witnesses and as both I and my learned brother are of opinion that nothing she might have said if her attention had been specifically drawn thereto at the trial could materially affect any inference we may now draw from the contradiction between her deposition and the statements of the other witnesses, the fact that it was not drawn to her attention at the trial, is not, in the particular circumstances of this case sufficient in itself to persuade us not to exercise our discretion. So far as her deposition is contradictory of her evidence at the trial, we think that the failure to bring it to her attention substantially weakens its evidential value and we shall not use those portions of her deposition for any purpose.

There are considerable discrepancies in the evidence adduced at the trial as to the order and time for arrival at the appellant''s house of the prosecution witnesses to the alleged extra, judicial confessions and as to the manner in which the latter alleged confession made in the presence of the Chaukidar was elicited and as to whom they were made. Those discrepancies are materially and substantially enhanced by reference to the depositions in question. The issues raised thereby were and are vital to the appellant''s defence. For this reason, it being our duty to use every proper method to arrive at the truth and because we were averse to ordering a retrial unless clearly necessary, the depositions have been admitted in this appeal. Before leaving this point, I would respectfully suggest to the learned Additional Sessions Judge that he himself should have noticed the discrepancies between the depositions of these witnesses and their evidence at the trial. The presence of counsel for the defence does not absolve the Court from its primary and fundamental responsibility to ensure that all proper and necessary steps are taken to arrive at the truth.

The first fact that falls to be noticed in regard to the alleged confession is the delay in the making of the First Information Report. The informant Chaukidar Phagu (P.W. 1) stated that he was called to the appellant''s house at 10 A.M. The steps he then took should certainly not have occupied more than one hour. It would not have taken him more than one hour to reach the police station 3 miles away. He did not reach it until 2-30 P.M. That leaves 2� hours unaccounted for. The intrigue between the deceased and appellant, if any, would have offended the neighbours, who similarly would have resented any attempt by deceased to force his attentions upon the appellant. The possibility, therefore, that the crime was committed by one or more third, persons as avengers or rescuers of the appellant must be borne in mind. If the crime had been so committed the neighbours might very well have been anxious to save such person or persons from the consequences of his or their act, and the natural and obvious way-out was for the blame to be put, either with or without her connivance, upon the appellant who had the best excuse. The interval of 2� hours would have allowed of such an arrangement. The next point is that in his First Information Report the Chaukidar said that in the first place Mohini (P.W. 3) informed him that somebody killed Gajo Gope and placed him in his house. Before the committing Magistrate, he said "Mt. Mohini informed me that somebody had probably killed Gajo Gope as he was traceless." In his evidence-in-chief he supported his statement in the First Information Report but in cross-examination denied that anything had been said before the committing Magistrate about deceased being traceless. In his three statements, therefore, this witness necessarily implies that when Mohini (P.W. 3) first gave information to him she knew nothing about the identity of the person or persons who had killed the deceased. The next point is that in the First Information Report this witness stated that Rahman Mian (P.W. 5), Mangan Mian (P.W. 4) Gafoor Mian (P.W. 14) were present when he questioned the appellant. To the committing Magistrate he stated that he took Rahman (P.W. 5), Mangan (P.W. 4), Rasool (P.W. 15) and Karamat (P.W. 16) with him to the appellant''s house. In his evidence at the trial, he says, he found these persons there when he arrived at the house. His statement to the committing Magistrate, if believed, would exclude the possibility of any prior confession to these witnesses.

In the First Information Report and in his statement to the committing Magistrate, the Chaukidar said that he himself questioned the appellant. He was not examined on the point at the trial. If he questioned the appellant then any confession she then made would have been made to him and not to those generally present. Mohini (P.W. 3) said in evidence at the trial that when she first went to the house, she questioned the appellant, who thereupon told her that she and her son Sukar had killed the deceased. This statement is not consistent with the Chaukidar''s statements as above noticed, nor as will be seen, is it consistent with the statement of P.W. 5 to the committing Magistrate, nor, in another sense, is it consistent with the statement of the other prosecution witnesses who made no mention of the appellant''s son in recounting her alleged confession to them. Mohini (P.W. 3) said to the committing Magistrate "I spoke to Mangan Mian (P.W. 4), Rahman Mian (P.W. 5) and the Chaukidar and then they came to the deceased''s house and I also came." At the trial Mohini said "I gave information to Mangan Mian and then to the Chaukidar. The latter came to Gajo''s house. Rahman and others came." Her evidence, therefore, agrees generally on this point with that of the Chaukidar to the Committing Magistrate and also excludes any confession, except the alleged one to herself, prior to the arrival of the Chaukidar. So far as any statement made by the appellant after the arrival of the Chaukidar is concerned, Mohini said at the trial "The room was unlocked at the instance of the Chaukidar Punia also said she had committed murder as her honour was at stake." To the committing Magistrate, she made the following statement not in consistent with her evidence, namely "The Chaukidar questioned Punia and she said she had put Gajo inside the room and locked the door." So this witness also implies that appellant''s statements at that time were in answer to the Chaukidar''s questions. Mangan Mian (P.W. 4) was only tendered as a witness in the committal proceedings. At the trial, he said he heard an outcry by Mohini that Gajo had been murdered by the appellant and that Rahman Mian (P.W. 5) was with him at the time. This statement is inconsistent, as has already been noticed, with the evidence of the Chaukidar and also, as will be seen, with the [evidence-in-chief of Rahman Mian (P.W. 5). Mangan Mian (P.W. 4) then went on to state that he went to Gajo''s house and found Gafoor, Rasul, Talo and Karamab there and that before the Chaukidar came the appellant told them all that she had murdered Gajo as her honour and modesty were at stake. Apart from its inconsistency with the statements of the Chaukidar and, as will be seen, of Abdul Rahman (P.W. 5) to the committing Magistrate, this statement is also inconsistent with that of Mohammad Rasul (P.W. 15) who said that Mangan Mian (P.W. 4) was already at the deceased''s house when he arrived. Abdul Rahman (P.W. 5) stated in chief at the trial that he was going to the mosque for Friday prayers when the Chaukidar Phagu came and told him that Gajo had been murdered and asked him to come and see Mohini (P.W. 3) in the angan and that they went to Gajo''s house. A little later in his evidence he said that the Chaukidar arrived 10 or 15 minutes after he got to the angan and that before the arrival of the Chaukidar the appellant confessed to those present that she had murdered the deceased. These obviously contradictory statements were not elucidated by the learned Additional Sessions Judge but in the reading thereof, I formed the impression that the first statement proceeded from the witness''s memory and the second as an afterthought of something he thought he ought to say, and this impression is confirmed by reference to his statement to the committing Magistrate as follows:

On the Friday, I was going with Mangan Mian when Muaammat Mohini told us that there was a lot of blood on the osara of Gajo Gope and that we must go and see it. When the Chaukidar was called by her, we all went to the house of Gajo Gope.

This statement, if believed, would, like that of Chaukidar Phagu, exclude any confession prior to the arrival of the Chaukidar. In regard to the manner in which the alleged confession to the Chaukidar, was elicited this witness made inconsistent statements, informing the committing Magistrate that ''he questioned Mt. Punia'' and the trial Court that the Chaukidar put a question. Talo Gope (P.W. 12) said "Gajo was murdered by Punia. I knew it on the hulla of Mohini. I went to Gajo''s house. On arrival of the Chaukidar Punia said she murdered Gajo". It is significant that the witness does not mention any confession prior to the arrival of the Chaukidar. Gafoor Mian (P.W. 14) said at the trial.

There was a hulla that Gajo had been murdered. I went to his house. Rahman and Mangan were enquiring from Punia why she had murdered Gajo. She said her honour was affected and she murdered him. The Chaukidar had not come at that time. Some 10 or 15 minutes later the Chaukidar came.

This witness did not speak to any statement subsequent to the arrival of the Chaukidar, who in the First Information Report stated that this witness was present when he, the Chaukidar, questioned the accused. Neither P.W. 15 nor P.W. 16 gave evidence at the committal proceedings. They repeated a somewhat parrot-like statement that the appellant confessed to the murder about 10 minutes before the Chaukidar came. Both of them are contradicted by the Chaukidar''s statement to the committing Magistrate that he took them with him to the house.

In my opinion, the discrepancies and contradictions in the above statements are such as in the circumstances of this case raise a reasonable doubt as to whether any extra-judicial confession was made by the appellant prior to the arrival of the Chaukidar and as to make it more probable than not, as indeed is also inherently probable that the alleged confession made in the presence of the Chaukidar was made to him and in answer to his enquiry. That a Chaukidar is a Police Officer for the purposes of Section 26, Evidence Act, 1872, was decided by a Divisional Bench of this Court in Emperor Vs. Mt. Jagia, . It is impossible for this purpose to distinguish between the meaning of the words "Police Officer" when used in the two Sections 25 and 26, Evidence Act, and that decision, with which I should say I respectfully agree, is [therefore binding upon me. It follows that no evidence could be given of the alleged confession made to the Chaukidar. For the purposes of our decision therefore, no question of any confession arises.

We are left with the evidence as to the appellant''s blood-stained sari, as to the the bloodstained khanti found in her room, as to her having unlocked the door of the room and as to the attempt to wash out the blood stains on the Osara. The blood-stains on the appellant''s sari appear to me as consistent with her innocence as with her guilt. Having regard to the quantity of blood on the floor of the osara, one would have expected her sari to be soaked in blood, if she had really taken an active part in the crime. The khanti no doubt belonged to her but I do not think that the finding of this weapon in her room nor the fact of her having unlocked the door nor the apparent attempt to wash out the blood stains on the osara lead in the circumstances of this case to any strong inference that she was the person who killed the deceased. In the F.I.R. we find mention of the fact that her sister''s husband had come to the village on the night in question and was not found there the next day. This man Khusroo Gope, was not arrested until a month later and it is a reasonable inference that he had absconded in the interval. It is reasonably clear that the deceased was killed in the early morning of 17-11-1944, since his stomach and bladder were found empty. There is little doubt that the weapon which caused his death was the blood stained iron khanti which inflicted the terrible wound on his leg, which broke both bones and smashed his tibia to pieces and no doubt ruptured the main artery in the leg. It is at least doubtful if his assailant intended to cause his death. It is certainly doubtful if the appellant, a woman, could have wielded the khanti with sufficient strength to cause such injuries. The number of injuries on the deceased''s body seem to indicate a number of assailants, but there is no sufficient evidence that the appellant was one of them. The fact that there was no sign of injury on her person is a strong indication in her favour. The blood stains in her sari may well have been caused quite innocently at a later stage. That some quarrel took place on or near the deceased''s verandah that early morning is clear and it is reasonably clear that the appellant must know what happened, but, there is certainly a reasonable doubt that she either committed or abetted the act which caused Gajo''s death. There may have been a planned attack upon Gajo, or he may have been killed by the appellant or by some third person or persona following an attempt by him upon her modesty which she resisted. It is all surmise and the evidence will not, therefore, sustain a conviction, either of murder or the abetment of murder or of any lesser offence. The appellant cannot be placed upon the horns of the dilemma, ''disclose what you know and perhaps incriminate yourself to some degree or else you illegally omit to give information.'' She cannot therefore be convicted of any offence.

I would allow the appeal quash the conviction and order the acquittal and immediate discharge of the appellant.

Meredith, J.

I agree. In my judgment, it has not been established that there was any confession other than that to the Chaukidar which was inadmissible. Without the confession the evidence is entirely insufficient to sustain a conviction.

Lest, however, these observations should wrongly convey the impression that the acquittal is on technical grounds, I would like to add that even had the confession been admissible I would still consider the appellant entitled to acquittal. I do not believe in this confession. No adequate motive has been established on the part of the woman. It is the prosecution case that there had been for years an intrigue between the appellant and the deceased, and the motive for the crime was merely that the deceased wished to convert the illicit connection into marriage. That is no motive. Alternatively it was suggested by the prosecution that there might have been no illicit connection and the deceased might have been pestering the appellant for it, and she might have committed the crime to save her honour. But the man was certainly killed not in the appellant''s room, but while sleeping in the verandah of his own room, probably in the early hours of the morning.

More important still, the crime was not a woman''s crime. The appellant seems to be a middle aged woman, by no means robust. The nature of the injuries suggests that the deceased must have been attacked by a powerful and muscular man. It is very difficult to, believe that an injury smashing to pieces the leg bones could have been inflicted either by the appellant or by her son, a boy of 14 or 15. The very numerous abrasions on the body of the deceased and marks on the throat also suggest a violent struggle, continued for some time. Yet it is not suggested by the prosecution that the appellant or her son had any injuries whatever on their persons.

The confession seems to me wholly unnatural. Even if we assume that the woman might be willing to confess her own guilt, why should she go out of her way to implicate her only surviving son, a young boy? The whole thing suggests to my mind that if the woman did make the statement alleged it must have been as a result of heavy pressure from some source unknown, compelling her to implicate her own young son and screen the real offender. We have here a dark and mysterious crime; a strange killing which the prosecution evidence wholly fails to explain. I have been through the police diaries, and must say that the investigation seems to me to have been regrettably perfunctory. Assuming that the woman made some sort of confession to the police, no attempt at all seems to have been made to verify it. It does not seem that the woman was ever asked to explain in detail if she committed the crime, how exactly she and her son managed to commit it, nor does she seem to have been asked to name her associates, if any, or to state the immediate cause of her conduct.

The impression left'' on my mind after a careful perusal of every scrap of material available in the case is that the prosecution story as presented does not in the least represent what really happened.