Nawal Kishore Rai and Others vs Emperor

Shearer, J.—This is an appeal by eleven men who were prosecuted in connexion with the murder of one Rama Singh. Nine of them have been convicted as principals and have been sentenced to undergo transportation for life; the remaining two have been convicted as accessories after the fact and have been sentenced to undergo rigorous, imprisonment for seven years each. Rama Singh was a constable and was in charge of an outpost at Puraini, a village in North Bhagalpur seven miles from the Kishanganj police station. On the night of 21st March 1936, there was a burglary in the house of one Ramji Gossain of Puraini. Rama Singh discovered that one Meghraj Koeri, a registered member of a criminal tribe, had been absent from his house that night, and he therefore sent for him and interrogated him. Meghraj Koeri appears to have said something to Rama Singh which led him to suspect that four other men, among them the two appellants, Singheshwar Gossain and Deo Gossain, had been concerned in the burglary. He, therefore, sent for these men and attempted to extort from them a confession. In this he was unsuccessful, and eventually, he dismissed them and sent Meghraj Koeri alone to the police station in charge of a chaukidar. It is said that Singheshwar Gossain and Deo Gossain went and complained to the appellant, Nawalkishore Rai. The latter is a petty zamindar and a Brahmin, and, therefore, a man of some standing, or at least influence, in the village. Now, some two years or so previously the house of Nawalkishore Rai had been raided and he had been taken into custody on suspicion of having been concerned in some burglary or dacoity. He was detained for some weeks and, when eventually he was released, he lodged a complaint against the Sub-Inspector and a number of constables and chaukidars. Among the constables was Rama Singh. There can be no doubt but that Nawalkishore Rai was assaulted or maltreated when he was arrested. It is said that he was struck on the back with the butt end of a gun, and that it was Rama Singh who struck him. The case for the prosecution is that Nawalkishore Rai still cherished resentment against Rama Singh for what he had then done to him and that he seized the opportunity to suggest to Sanichar Gossain, Deo Gossain and other bad characters like them that Rama Singh should be murdered.

There was, it is said, a gathering at the Durga asthan at which Nawalkishore Rai broached the matter, and, subsequently at about sunset or shortly afterwards, the men or most of the men who had met at the Durga asthan, assembled again at Nawalkishore Rai''s house. Among these men was the appellant, Sanichar Musahar, who happened to be a servant of the constable being employed by him to cut grass for his pony. This man it is said was persuaded to go to the out-post and tell Rama Singh that a number of men were engaged in gambling in a banswari belonging to one Adhik Marar. The constable, it is said, was induced by Sanichar Musahar to go to the banswari in the hope of surprising the gamblers and that, when he got there, he was set upon and most brutally done to death.

It is said that Nawalkishore Rai struck him with a pharsa on one of his legs and that the other men with him then combined and assaulted him with lathis. Finally, two bamboos were placed, one above the other below his neck, and pressure was applied to them until it was thought he was dead. Then in order to make certain that he was dead, Nawalkishore Rai cut the veins in his arms. Steps had already been taken to dig a grave in the adda of one Naubatlal Jha, some 700 or 800 yards away from the banswari. The dead body was carried there and deposited in the grave. Three days later, a cousin of Rama Singh lodged a first information stating that he suspected that Rama Singh had been murdered and later, certain persons, among them the appellant, Nawalkishore Rai, were taken into custody. They were, however, discharged as no satisfactory evidence was forthcoming either that Rama Singh had been murdered or that Nawalkishore Rai or anyone else had been concerned in the murder. It was not until four years later, on 24th September 1940, that any clue was obtained. On that day one Phagu Koeri went to the Sub-Inspector at Puraini and said that he wished to make a statement. The Sub-Inspector was about to proceed to Madhipura and took Phagu Koeri there with him. Next day the Sub-Inspector and the Inspector of Police both subjected Phagu Koeri to a lengthy interrogation and, eventually, obtained from him a statement. Phagu Koeri was produced before the Subdivisional Magistrate, but did not at once make a confession. The Sub-Inspector, however, went to Puraini on 29th September 1940 and acting on the information which had been given him by Phagu Koeri, succeeded in discovering the remains of Rama Singh. On 4th October 1940, one Dorik Jolaha made a statement to Magistrate, in which he said that he had seen Rama Singh killed and had also seen his body buried under the adda of Naubatlal Jha where it was eventually found. On 6th November 1940, Phagu Koeri submitted a petition to the Subdivisional Magistrate, asking that he should be permitted to make a statement. The Subdivisional Magistrate had him produced and he then made a lengthy and detailed confession. On 15th January 1941, another man Mahabir Gorhi, was taken into custody on suspicion of having been concerned in the murder. Three days later he too made a confession. Pardons were tendered to Phagu Koeri and Mahabir Gorhi, and both they and Dorik Jolaha were called to give evidence by the prosecution. In the Court of the committing Magistrate Mahabir Gorhi repeated the story which he had told in his confession, but in the Court of Session he repudiated it and said that it was an invention which had been put into his mouth by the Sub-Inspector.

The case for the prosecution rests, in the main, and indeed, so far as most of the appellants are concerned, in its entirety, on the evidence of Phagu Koeri, Mahabir Gorhi and Dorik Jolaha. Mr. Srinarain Sahay for the appellants has made no very serious attempt to deny either that these three men were all concerned in the murder or that the remains which were disinterred by the Sub-Inspector on 30th September 1940, were the remains of Rama Singh. On these two points the evidence, in my judgment, is wholly convincing.

The assistant surgeon who conducted the post mortem on the remains and who is to be congratulated on the very great care which he took in examining thorn, was in a position to say, quite positively, that the man had been struck with some sharp-cutting weapon, such as a pharsa, on one of his legs, that pressure had in some way been applied to his neck and that he had boon struck a number of heavy blows with lathis or similar weapons on the head and other parts of the body. The confession which Phagu Koeri made to the Sub-Inspector is not, of course, before us, but no attempt was made in the very lengthy cross-examination to which he was subjected to show that, in this confession he had not given some account of the manner in which Rama Singh had been done to death and that the account which he gave was not corroborated substantially by the evidence of the assistant surgeon. In other words, it must.

I think, be assumed that, several days before the skeleton was discovered, Phagu Koeri had been in a position to say how the man had been killed. That is a circumstance which goes, quite conclusively, to show that he was concerned in the murder. The Sub-Inspector said that when he went to Puraini on 29th September 1940 he sent for Dorik Jolaha and that Dorik Jolaha took him to the adda of Naubat Lal Jha and showed him where to dig. The area which Dorik Jolaha then pointed out to the Sub-Inspector was a comparatively small area, and it is therefore quite certain that Dorik Jolaha knew exactly where Rama Singh had been buried. No doubt Phagu Koeri said that, before going to Kishanganj he had told two men where the grave of Rama Singh was. He did not say that he had also told Dorik Jolaha and one cannot perhaps, wholly exclude this possibility. Nevertheless, the conduct of Dorik Jolaha in taking the Sub-Inspector to the adda of Naubat Lal Jha and showing him, more or less precisely, where the grave of Rama Singh was, is a circumstance sufficient to corroborate him and his other two accomplices and make it reasonably certain that he was one of those who were there when Rama Singh was killed and when his dead-body was buried.

When the other man, Mahabir Gorhi, was arrested, his left arm was found to be broken and deformed. The assistant surgeon who examined him found ulcers on it and expressed the opinion that these ulcers were caused by dead bones or broken pieces of a dead bone. At the trial, Mahabir Gorhi said that his arm had been broken as a result of a fall from a jehal tree. This accident had, he said, occurred not very long prior to his arrest. The assistant surgeon was however in a position to say positively that the injury on Mahabir Gorhi''s arm was a long-standing one. There is evidence that, soon after Rama Singh was murdered, Mahabir Gorhi disappeared from the village and that, when he returned, he gave an explanation for the injury on his arm to his co-villagers, which was not the explanation he put forward at the trial. The conduct of this man in disappearing for a period of about twelve months immediately after the commission of the crime and in giving successive explanations, all of which are untrue, of how he came by the injury on his arm, is, in my view, more than sufficient to show that he did in fact take part in this murder.

According to the prosecution, Dorik Jolaha was not a party to the conspiracy which resulted in Rama Singh''s death. It is said that when he went to the banswari of Adhik Marar, he knew nothing of what was impending and that he took no part himself either in the attack on Rama Singh or in the disposal of his dead body. When Phagu Koeri made his initial statement to the Sub-Inspector, he apparently said that Dorik Jolaha knew how Rama Singh had been killed and where his dead body had been buried. Dorik Jolaha was, as I have just said, one of the persons who showed the Sub-Inspector the dead-man''s grave, which makes it fairly certain that he did in fact see him buried there. It has not been suggested that Phagu Koeri has ever ascribed to Dorik Jolaha any active part in the commission of the murder, and that is somewhat curious if in fact Dorik Jolaha was as much guilty as himself. There is thus, I am inclined to think, a good deal of truth in the story of how Dorik Jolaha came to be in the banswari. It may well be that he was taken there by the constable and that, unless Sanichar Musahar found some opportunity of talking to him on his way to the place, the attack on the constable came to him as a complete surprise. But even if that is so, I find it impossible to believe that he remained throughout a mere spectator and that no one said or did anything to him that night to ensure his keeping silent. Also, it was a very dark night and, unless he went with the murderers of Rama Singh to the adda of Naubatlal Jha, he could not possibly have seen all that he says he did see there. One is, I think, driven to the conclusion that, when he saw Rama Singh attacked by Phagu Koeri and other bad characters like himself, he stood by and did nothing and then, later, joined them in disposing of the dead body. In that view of the matter, he was an accomplice and the learned Sessions Judge was correct in treating his evidence as no better than that of an accomplice.

The learned Sessions Judge was of opinion that Phagu Koeri, Mahabir Gorhi and Dorik Jolaha were all persons of the worst character, whose evidence was unworthy of credence, and, if the evidence of any one of them had stood alone, he would not have based a conviction on it. Against nine of the appellants, there was no evidence except that of the accomplices. Nevertheless, in convicting them, the learned Sessions Judge was under the impression that he was not deviating from the practice of the Courts both in this country and in England--a practice based on the experience of generations--not to convict on the uncorroborated testimony of an accomplice. In his opinion the evidence of each of the accomplices was sufficiently corroborated by that of the other two. In taking the view which he did, the learned Sessions Judge thought that he was supported by a decision of a Pull Bench of the Rangoon High Court in Aung Hla v. Emperor AIR 1931 Rang. 235. The learned Judges who were parties to that decision were not dealing with a case in which persons had been convicted on the uncorroborated evidence of several accomplices. They considered it necessary, however, to lay down certain rules for the guidance of the subordinate Courts. Among the propositions which they formulated were the following:

(5) That the evidence of an approver may be corroborated by the evidence of another approver, or by the confession of a person who is being tried jointly with the accused for the same offence implicating both himself and the accused; (6) that it is the duty of the Court to scrutinize with care such corroboration as that mentioned in (5), but that whether it is to be treated as evidence against the accused or not is to be determined by the Court, having regard to the circumstances of the case.

After formulating these propositions the learned Chief Justice, who delivered the judgment, proceeded to refer to the illustrations to Section 114, Evidence Act, and, in particular, to the following:

A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable.

In England a confession made by one prisoner is admissible in evidence as against e himself, but not as against any other prisoner who is being tried jointly along with him. In India, as a result of the provisions contained in Section 30, Evidence Act, the position is otherwise. Quite clearly the Legislature, in inserting this illustration in Section 114, Evidence Act, had in view the provisions contained in Section 30. It is unnecessary to consider what exactly the scope of that section is. It is enough to say that, in inserting this particular illustration in Section 114 of the Act, the Legislature did not say or intend to say more than this, that, in certain circumstances of a wholly exceptional character, a Court might be justified in convicting on the uncorroborated evidence of several accomplices. The illustration immediately preceding it is as follows:

A person of the highest character is tried for causing a man''s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself.

In England the rule requiring the corroboration of accomplices does not apply to two classes of accomplices: (a) Informers i.e., persons who have joined in, or even provoked, the crime as police spies or the police who have assented thereto; and (b) co-defendants, where the offence is of a technical character rather than a moral character, e.g., non-repair of a highway, presence as spectators at a prize-fight, or actions for penalties (vide Phipson on Evidence, Edn. 7, p. 470). It would seem that, in inserting this latter illustration in Section 114, Evidence Act, the Legislature had in view the practice of the Courts in England in the latter class of case. That makes it, I think, clear that, in inserting the illustration which immediately follows it, the Legislature was also propounding a hypothetical case in which a conviction based on the uncorroborated testimony of accomplices might, in spite of the well-known and established practice, be unobjectionable. Now, it is one thing to say that a Court may, in wholly exceptional circumstances, convict on the uncorroborated evidence of an accomplice, or of two or more accomplices, and another to say that, where two or more accomplices are called to give evidence, the evidence given by any one of them may be sufficiently corroborated by the evidence of the others and by nothing else. ''Corroboration,'' in Wharton''s Law Lexicon, Edn. 13, is defined as ''evidence in support of principal evidence.'' The Judges in England frequently use the words ''confirmed'' or ''confirmation'' as interchangeable with ''corroborated'' and ''corroboration.'' Apart, however, from the derivation of the word and the manner in which it is ordinarily used in such cases in the Courts, I find it difficult to understand how it can properly be said that the evidence of one accomplice, who is himself unworthy of credit, can be corroboratedor confirmed or strengthened by the evidence of another accomplice, who is equally unworthy of credit. To say this is to say, or to come dangerously near to saying that evidence given on a particular point by two or more persons is necessarily of greater strength and cogency than evidence given by one person. It is, I imagine, for this reason that, when the suggestion has been made to the Courts in England that the evidence of two or more accomplices is in some way superior to the evidence of one accomplice, the suggestion has been vigorously repudiated. In Rex v. Noakes (1832) 172 E.R. 996 Littledale J. said this:

It is not usual to convict upon the evidence of one accomplice without confirmation; and in my opinion it makes no difference that there are more than one.

Again in Rex v. Gay (1909) 2 Cri. AR 327 the Lord Chief Justice said:

This Court will certainly not hold that the evidence of a number of accomplices needs any less corroboration than that of one accomplice.

These expressions of opinion were endorsed by Lord Reading C.J. in the well-known case in Rex v. Baskerville (1916) 2 K.B. 658. The manner in which the evidence of an accomplice is to be scrutinized and weighed has been indicated by Courtney-Terrell C.J. and Macpherson J. in Rattan Dhanuk and Others Vs. Emperor, . It can make no difference whether one accomplice or several accomplices have been called by the prosecution. In the latter case the Court must take the evidence of each of the accomplices separately and decide whether or not that evidence is worthy of credence and ought to be acted on without further corroboration. If it is satisfied that any one of the accomplices is so deserving of credence and here I desire respectfully to endorse the observations of Macpherson J., and to say that my experience coincides with his, and that Lachmi Bantar, the accomplice on whose evidence Rattan Dhanuk and some of his associates were convicted was one of the most remarkable witnesses who have ever appeared before me there is an end of the matter. If, on the, other hand, the evidence of each of the accomplices is unworthy of credence, the Court, before convicting any of the accused persons, must be satisfied that, as against that accused person, there is testimony independent of that of the accomplices which, in the words used in Rex v. Baskerville (1916) 2 K.B. 658, "connects or tends to connect him with the crime." I do not myself think that the learned Judges of the Rangoon High Court intended for one single moment to suggest that the evidence of two or more accomplices was in any way superior to the evidence of one accomplice. Indeed the learned Chief Justice in the course of his judgment, at p. 430 said this:

Suppose the only evidence against A B is that of two approvers each of whom testify that A B was one of those who fought in the battle, and it is proved that both of these approvers are on bad terms with A B. Obviously, the fact that unreliable and discredited testimony is given by two witnesses instead of one will not render, the evidence of either witness the more worthy of credit.

But, with very great respect, the language used earlier in the judgment, in formulating the two propositions which I have quoted, was not perhaps as precise as it might have been. It has been misunderstood by the learned Sessions Judge in this particular case, and, as it may be misunderstood again, I have thought it necessary to indicate what, in my opinion, is the correct position. As, in the view of the learned Sessions Judge, none of the three accomplices was a person whose evidence was deserving of credence, and, as against none of the appellants, except Nawalkishore Rai and Sanichar Musahar, was there other evidence of any kind whatever, the learned Sessions Judge ought to have acquitted them. Mr. Hasan Jan for the Crown has pointed out that, when Dorik Jolaha made his initial statement, Phagu Koeri was already in custody, and that, similarly, when Mahabir Gorhi made his initial confession, Dorik Jolaha as well as Phagu Koeri were under detention. There was, he contends, no possible opportunity for any one of them communicating with either of the others before he disclosed what he himself knew and that, if so, a conviction based on their uncorroborated evidence can be supported on the ground that the case is directly parallel to that indicated in the illustration to Section 114, Evidence Act, on which reliance was placed by the learned Judges of the Rangoon High Court. Several years had, however, elapsed before any of these accomplices were arrested, and, obviously, they had had ample opportunity to communicate with one another. Phagu Koeri admitted that, before going to the Sub-Inspector and making a statement, he had told at least two men of his intention to do so. It is true that he did not admit having said anything to Dorik Jolaha; but as the Sub-Inspector at once sent for Dorik Jolaha and Dorik Jolaha assisted him to discover the grave of Rama Singh, the probabilities are very great indeed that Dorik Jolaha not merely knew that Phagu Jolaha intended to make a confession, but knew also what, more or less, he proposed to say. The appeals of the appellants other than Nawalkishore Rai and Sanichar Musahar must, in my judgment, be allowed, the convictions and sentences imposed on them must be set aside, and they must be released and set at liberty forthwith.

I now turn to consider the evidence, on which the prosecution relied as going to corroborate the two approvers and Dorik Jolaha and show that Sanichar Musahar and Nawalkishore Rai took part in this crime. [After going through the evidence his Lordship proceeded.] Lastly, a large number of witnesses for the prosecution said that, very. shortly after Rama Singh was murdered, this appellant, Nawalkishore Rai, began to wear a red dhoti and that he continued to wear it for about a year, after which he sacrificed a buffalo and resumed his ordinary dress. This evidence has been subjected to a good deal of criticism mainly on the ground that the Sub-Inspector did not apparently discover this somewhat curious behaviour on the part of Nawalkishore Rai until a late stage of the investigation. The story was, however, a rather extraordinary one, and some at least of the persons who told it were respectable enough persons who would not appear to have had a motive for endeavouring to fasten the responsibility for this crime still more firmly on Nawalkishore Rai. The evidence as to the voice of Nawalkishore Rai having been heard that night over the screams of the murdered man and the story of his having subsequently taken to wearing a red dhoti may, by themselves, be small matters, but the discovery of bloodstains on his machan is not, nor is the evidence of Hardeo Sonar as to the incident at the Durga-asthan. In any case, when dealing with evidence relied on by way of corroboration, one must deal with it as a whole. As Cave J. said in In re Meunier (1894) 2 Q.B. 415:

It is impossible to deal with the point by taking separately each single fact stated, and saying it is a small matter, and does not amount to corroboration that may be so, but the whole of the facts taken together form a strong body of circumstantial evidence in corroboration.

The evidence of Phagu Koeri, Dorik Jolaha and Mahabir Gorhi was, in my judgment, satisfactorily corroborated as against this appellant, Nawalkishore Rai. I would accordingly confirm his conviction and sentence and dismiss his appeal. Before closing this judgment, there are two observations which I wish to make. One is that this was a most cruel and premeditated murder and the victim was a public servant stationed by himself in a most lonely place where his duty inevitably brought him into contact and collision with desperate and dangerous men. It may be that, on the day he met his death he had abused his position and done something he ought not to have done, and it may even be that, on other occasions, he had done the same before. But that cannot, in the smallest degree, mitigate the seriousness of the crime which was committed. I cannot myself imagine a case in which the extreme penalty of the law ought, quite certainly, to have been imposed, or one in which the reasons, given by the Court of Session for not imposing it, were so wholly unsubstantial. The other is that, when a pardon has been tendered, and the conditions on which it has been tendered have been broken, the matter is one of which the Court of Session should take very serious notice. It may be as well to recall how stern in dealing with such a matter, until comparatively recent times, was the common law in England. In 1Rex v. Rudd Cowp. 1114 is to be found the following:

A person desiring to be an approver, must be one indicted of the offence, and in custody on that indictment. He must confess himself guilty of the offence and desire to accuse his accomplices: he must likewise upon oath discover, not only the particular offence for which he is indicted, but all treasons and felonies which he knows of; and after all this, it is in the discretion of the Court, whether they will assign him a coroner, and admit him to be an approver or not: for if, on his confession it appears that he is a principal, and tempted the others, the Court may refuse and reject him as an approver. When he is admitted as such, it must appear that what he has discovered is true; and that he has discovered the whole truth. For this purpose, the coroner puts his appeal into form; and when the prisoner returns into Court, he must repeat his appeal, without any help from the Court or from any bystander. And the law is so nice, that if he vary in a single circumstance, the whole falls to the ground, and he is condemned to be hanged; if he fail in the colour of a horse or in circumstances of time, so rigorous is the law, that ha is condemned to be hanged; much more, if he fail in essentials. The same consequences follow if he does not discover the whole truth, and in all these cases the approver is convicted on his own confession.

It is no doubt as well that the rigours of the law have now been abated. But however much this may be, the law still does not contemplate that a self-confessed murderer, who has added to his crime the further crime of committing deliberate perjury in the hope of securing the acquittal of some of his own guilty associates, should be permitted to go out into the world again a free man without suffering any kind of retribution whatever for his sins. Even if, in consequence of his own neglect, Mahabir Gorhi is in danger of losing one of his arms, and I can find no evidence of this on the record, that is not a circumstance which ought to have weighed for a single moment with the learned Sessions Judge in discharging the duty which in this matter he owed to society.

Meredith, J.

I agree. I should like to add some observations upon the question of corroboration of the evidence of approvers. Illustration (b) to Section 114, Evidence Act, says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. To this there is an appendage. Below the illustration we find

but the Court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it.... As to Illust. (b): A crime is committed by several persons. A, B and C three of the criminals are captured on the spot und kept apart from each other. Bach gives an account of the crime implicating D and the accounts corroborate each other in such a manner as to render previous concert highly improbable.

The use of the phrase ''and the accounts corroborate each other'' has, I think, led to considerable confusion in Indian Courts and I should like to try and clear away that confusion if I can.

One accomplice cannot corroborate another. That is well settled. The oaths of two dishonest persons are no better than the oath of one. At the same time, in my judgment, Section 114, Evidence Act, with its illustrations, makes it clear that in India, where the law of evidence is statute law, the agreement of the testimony of several accomplices, in circumstances precluding the possibility of previous consultation with each other, is one of the circumstances which may sometimes justify the Court in acting upon the evidence of accomplices alone. I can see no other meaning in the insertion in Section 114 of the second instance of qualifying facts which I have quoted in regard to illust. (b) and which it is specified the Court is to have regard to before acting on the presumption that an accomplice is unworthy of credit. The insertion of this rider to illust. (b), in, my view, plainly imports that the law regards the correspondence of the statements in such circumstances as somehow strengthening the evidence of the accomplices.

How it does so is obvious. If one observer, for example, announces that he has seen a certain person amongst a body of rioters, describes his clothing, his words, and his acts in detail, the matter may still remain doubtful. The witness, even if honest, may have been mistaken; if dishonest, enmity may have led him to lie. But if several witnesses independently, and without any chance of having compared notes previously, tell the same story, with the same details regarding clothing, acts, and words, the probability that all are describing something they actually saw is greatly increased, and that even though none of the witnesses may be of unimpeachable veracity; for otherwise the agreement of the independent statements in detail becomes inexplicable.

The contradiction between the rule that one approver cannot corroborate another and the view that in certain circumstances the evidence of two may be stronger than that of one is more apparent than real, for in a case such as that contemplated it is not the oath of one rogue that reinforces the oath of another. It is the detailed correspondence of the stories of observers independent of each other that provides the corroboration of each.

The reinforcement of the testimony thus provided is entirely independent of the veracity of the witnesses concerned. The same principle is applicable to the evidence of all witnesses, and in a case of the sort I have described the evidence of several persons is worth more than that of one, who, however honest, may always fall into error through mistakes of observation or lapse of memory.