Queen Empress vs Bepin Behari Dev

The accused Bepin Behary Dey was tried before the Sessions Court of Birbhum on a charge of murder, for causing the death of one Suchand Kalu. The Assessors were both of opinion that the charge was not established against the accused; but the learned Sessions Judge, disagreeing with them, has found the accused guilty of the offence with which he was charged, and has sentenced him under sec. 302 of the Indian Penal C de to transportation for life. Against that finding and sentence the accused has preferred the present appeal.

The case for the prosecution is shortly this:-The deceased, Suchand Kalu, a youth of about 18 years of age who was a fellow-villager, of the accused, and who used frequently to go to his house to play chess, or to do his writing work, had, a few days before the occurrence, given offence to the accused by splashing water on the person of his wife, a girl of the age of 13 or 14 years, when she was bathing in a tank. The accused had since been watching for an opportunity to take his revenge. He purchased a weapon, namely, a bhojali, from a blacksmith, named Batobi Karmokar, and, on the 14th April last, while the deceased was writing some papers for him in his baitakhana, as he was accustomed to do, the accused suddenly attacked him and gave him several severe blows with the bhojali, which caused his death immediately. Pulin Behari Mundle and other relations of Suchand, not seeing him return home, felt anxious as time advanced. They came to the accused who was the collecting punchait of the village, and requested him to write for them an itla or notice to be sent to the thana to the effect that Suchand was missing.

The accused made various pretexts that he could not open his baitakhana to get pen, ink and paper, as the key of the door padlock could not be found, and offered to go to Pulin''s house to write the notice there. Eventually, Pulin and his companions insisting that the notice should be written in the baitakhana of the accused, a key was brought, and though it did not fit the padlock exactly, the padlock opened upon being moved, the door was then opened, and the body of Suchand was found with several wounds on it. The accused was then charged by the people assembled there with having murdered Suchand, He was arrested by Grish Chowkidar and he confessed his crime, adding that he had committed the murder to avenge the insult offered to his wife, but said he had killed Suchand with an axe which he had thrown into the house of a neighbour called Babaji. Information was sent to the police on the night of the 14th or, more correctly, at about one o''clock of the morning of the 15th. The Sub-Inspector, Rash Mohun Dey arrived at the spot early in the morning of the 15th, found the dead body in the baitakhana of the accused, made some search in the baitakhana, but discovered nothing of importance, and then made an unsuccessful search for the axe mentioned by the accused. At about noon of the same day another police-officer, Rassik Lal Das, arrived at the spot and took up the inquiry, and, on making a further search in the baitakhana, found a bloody foot-print, which, on comparison, tallied with a foot of the accused, and he found a blood-stained underneath a thaktaposh or bedstead, and a blood-stained bhojali in a basket of rejected cocoons.

To prove this case at the trial before the Sessions Court, there were examined for the prosecution, Pulin Behari Mundle, the brother of the deceased, Ram Chand Mundle, Rash Behari Mundle and Pertap Chunder Mundle, his fellow-villagers and relations, Sharoda Prosad Sirkar, the gomastha of the village, (Irish Chowkidar, the chowkidar of the village, and Nobin Sheik, Shadananda Shaw and Dinu Das, residents of the village Khodepur, to the finding of the dead body of Suchand in the baitakhana of the accused to his confession and to different stages of the search by the police, and three of whom, namely, Pulin, Ram Chand and Rash Behari Mundle, speak also to the conduct of the accused before the discovery of the dead body of Suchand, in evading their request to open his baitakhana. There have also been examined Batobi Karmokar, his servant Kasturi Karmokar, and his relative Ram Dhari Mistree, the first two deposing to their having sold the bhojali to the accused a few days before the day of occurrence, and the third to the fact of his having made that weapon and having left it with Batobi Karmokar for sale. Then there have been examined Chandi Dhopa, the washerman of the accused, who deposes to the blood stained dhuti being the property of the accused, Beni Chowkidar, who corroborates the witness Batobi Karmokar, and Chunder Das Bairagi, who was examined to disprove a suggestion made on behalf of the accused, that the deceased might have been murdered by a man named Pertap Poddar, and who says that Pertap Poddar had left the village some days before the day of occurrence. There is also the evidence of the investigating police-officers, Rash Mohan Dey and Rassik Lal Das. Lastly, there is the evidence of Dr. Fleming, the Civil Medical Officer, who held the post-mortem examination in this case, and who corroborates the other evidence as to the circumstances under which the murder was committed.

Thus, though there are no eye witnesses to the occurrence, if the evidence, of which a brief resume is given above, is admissible and reliable, a clear case is made out against the accused.

The learned vakil for the Appellant contends, first, that a part of this evidence, namely, that relating to the confession of the accused, is inadmissible under sec. 26 of the Evidence Act, the confession having been made by the accused whilst he was in the custody of the village chowkidar, and secondly, that the evidence is unreliable and insufficient to establish the guilt of the accused.

In support of the first contention the cases of Queen v. Hurribole Chunder Ghose I. L. R. 1 Cal. 207 and Queen-Empress v. Bhima I. L. R. 17 Bom. 485 are relied upon.

Without departing in the slightest degree from the salutary rule enunciated by Garth, C.J., in Queen v. Hurribole Chunder Ghose I. L. R. 1 Cal. 207 that it is "better in construing a section such as the 25th, which was intended as a wholesome protection to the accused to construe it in its widest and most popular signification;" we must say that that case and the case of Queen-Empress v. Bhima I. L. R. 17 Bom. 485, which follows it, are clearly distinguishable from the present, and that this case comes neither within the letter nor within the spirit of sees. 25 and 26 of the Evidence Act. In the first-mentioned ease the question was whether the Deputy Commissioner of Police in Calcutta was a police-officer within the meaning of sec. 25, and in the second case the question was whether a police patel in Bombay came within that section; and the question in each case was answered in the affirmative. The question before us is whether a village chowkidar is a police-officer within the meaning of sees. 25 and 26 of the Evidence Act. Now, a village chowkidar is not a police-officer in any sense, technical or popular. His duties, as defined in Act VI (Bengal Council) of 1870, are not the same as those of an ordinary police-officer. He has no power to hold any police inquiry. The only power of arrest he has in common with a police-officer is that of arresting a proclaimed offender, or a person found actually committing certain descriptions of offences. The reason why the law in sees. 25 and 26 of the Evidence Act jealously excludes a confession made to a police officer, and a confession made by an accused whilst in the custody of a police-officer unless it be made in the immediate presence of a Magistrate, is thru there is room for apprehension that a police-officer who is armed with large powers over accused persons may unwillingly excite terror in their minds and extort false and involuntary confessions; and his duty to investigate criminal cases and to detect offenders and bring them to justice may make him feel tempted to obtain confessions from accused persons by threat, or promise, or other improper influence; but the reason for the rule can have no application to a chowkidar who is vested with no such power, on whom no such duty of detecting and bringing to justice an offender is imposed, and who is not therefore likely to exercise any such influence or to be under any similar temptation. The view we take is to some extant supported by the case of Queen-Empress v. Fatia Binappaji I. L. R. 20 Bom. 795. The first contention of the learned vakil for the Appellant must therefore fail.

We have now to consider the second contention urged for the Appellant, namely, that the e is unreliable and insufficient.

The ground upon which the Assessors base their opinion in favour of the accused, namely, that his house in which the dead body of Suchand was found, was not a place in which a murder was likely to be committed in broad day-light, and that the murder must have been committed somewhere else was not pressed before us; and, indeed, it could not, on the face of the evidence, have been pressed with any degree of plausibility, seeing that there were, as has been amply proved, marks of blood all over the room, clearly indicating that the murder must have been committed in that room and nowhere else.

The ground upon which the case for the prosecution has been attacked on the evidence are, that the confession of the accused, as deposed to by the witnesses, is not borne out by the facts proved, but is, on the contrary, contradicted as regards the weapon : that the bloody footprint and the blood-stained cloth and weapon were not discovered on the first search by the police that the evidence as to the ownership of the weapon is conflicting and unsatisfactory; that some of the witnesses who give evidence against the accused bear enmity towards him; and that the evidence, even if believed to be true, leaves room for doubt as to the guilt of the accused.

These arguments, no doubt, are entitled to consideration; but after having given our best attention to the case, the conclusion we arrive at is that the evidence adduced for the prosecution is true, and that it leaves no room for reasonable doubt as to the guilt of the accused.

As to the confession of the accused, no doubt, it is not borne out by the evidence so far as the weapon with which the murder was committed is concerned. It may well be, as the learned Sessions Judge in his careful and well-considered judgment has pointed out, that the accused whilst making the confession might have felt impelled by the instinct of self preservation not to point out the weapon with which the crime was committed, but to put people on a wrong track. But be that as may, we are of opinion that the confession is corroborated in one important point by unimpeachable evidence. The accused in his confession said that he struck the deceased whilst he was writing; and this is borne out not only by the blood-stained piece of paper produced before the Court and proved to hear the handwriting of the deceased, but also by the evidence of the Civil Surgeon, who says, " wounds Nos. 5 and 6" (which according to him were mortal wounds) "the man could not have received while standing. He must have received them in a stooping posture.

As to the foot print and the bloodstained cloth and weapon not being discovered until after the arrival of the second police-officer, Russik Lal Das, we do not think that that circumstance can create any suspicion. The Sub-Inspector who made the search in the first instance was a comparatively inexperienced officer, and he did not make any careful starch, and we do not see any reason to suspect the veracity of the witnesses who depose to the comparison of the foot-print and the finding of the bloodstained cloth and weapon in the baitakhana of the accused.

There are, no doubt, some discrepancies in the deposition of Batobi Karmokar, his servant Kasturi Karmokar, and his relative Ramdhari Mistree; but they may, to some extent, be due to inaccuracy of statement on the part of the Witnesses rather than to deliberate falsehood Taking the evidence on this point as a while, and along with the letter which the witness Beni Chowkidar says was given to him by the accused to be taken to Batobi, we think that the ownership of the bhojali by the accused is sufficiently made out.

As for the argument that some of the witnesses for the prosecution have given false evidence against the accused out of enmity, we must say that it is untenable. In the first place very little of direct enmity with the accused is made out; and, in the second place, the ill-feeling, such as might exist between the accused and one or two of the witnesses, is not shown to be so bitter as to make it likely that the witnesses would seek to implicate the accused falsely in a serious charge like that of murder.

Touching the last argument of the learned vakil for the Appellant, it is enough to say that not only is the circumstantial evidence adduced against the accused such as excludes every reasonable hypothesis except that of the guilt of the accused, but his own confession places his guilt beyond any reasonable doubt. Upon a careful consideration of the evidence, therefore, we must affirm the conviction and sentence and dismiss the appeal.