Rajkumar Singh and Others vs Emperor

Courtney Terrell, C.J.—In this Case the four appellants were convicted before the Sessions Judge of Shahabad with the unanimous approval of four Assessors of the murder of one Rama Pande and were sentenced to transportation for life. It is a case of an unusual kind but of which there have been examples, the peculiar feature being the fact that although the supposedly murdered man has disappeared yet his body has never been found and having regard to the fact that he did not disappear in circumstances which render it inconceivable that he could still be alive it becomes necessary for the prosecution to establish three facts, firstly, that Rama Pande is really dead, secondly, that he met with a violent death, and, thirdly, that that accured persons are those who brought about his death. This aspect of the matter was not pressed upon the Sessions Judge who seems to have taken the fact of the absence of the body as material to the question of sentence rather than to the question of the cogency of the proof required. The onus on the prosecution in these circumstances is much heavier than is ordinarily the case where the first and second facts are without difficulty proved beyond any doubt.

The established facts of the case are as follows:

Rama Pande was, or perhaps is, a violent ruffian of the worst possible character who lived in October last in Bhawanipur in a solitary house. With him lived his wife Dhaneshri, his daughter Maheshari and his son Foujdar, who enjoys a reputation as bad or worse than that of his father. As might be expected they were on the worst possible terms with the people in the neighboring bastis by whom they are hated and feared. I should mention that his mother Lakshiminia is also living but she resides at a distance and on the day of the supposed murder she was living at Siapokhar some distance from Bhawanipur: Rama Pande nevertheless had some friends ; one Kulpu Tewari lives at basti Alladahi some few hundred yards from Bhawanipur and there is ground for suspecting that he is related to Rama Pande in that he is probably the brother of Dhaneshri. This Kulpu has a wife named Atrajia, a son named Ram Bilas. In the basti Alladahi where Kulpu resides there lire the four appellants and of these the first Rajkumar Singh appears to have been on bad terms with Kulpu and a few days before they had each made a complaint against the other to the Police Sub-Inspector about the circumstances of a fight in which they had each received injuries. The Sub Inspector seems to have acted very wisely in the matter and forced them to compromise their dispute. The other accused are relations of Rajkumar Singh, There are also two parsons, Ismail Khan and Anrudh Ahir, who reside is a neighboring village who were charged with the four appellants but have been acquitted by the Sessions Judge.

On the 30th October, 1927, Faujdar Pande appeared at the thana some five miles away from Alladahi and interviewed the Sub-Inspector and laid a First Information. He maintained in his subsequent evidence before the Sessions Judge that he arrived at the thana at 10 o''clock in the morning and that the Sub-Inspector refused until 2 o''clock in the afternoon to deal with him. I am satisfied for the reasons stated by the Sessions Judge that in fact this statement was a lie and that he really arrived at half past two. He there made a statement which is set forth in his first information and in that statement he said that at about 11 o''clock on the same day four bullocks and four cows of Rajkumar Singh had trespassed on his field and that his father Rama Pande saw the trespass from his house at Bhawanipur. While he and Rama Pande were driving the cattle off he also saw in the field the two persons who have been acquitted that is Ismail Khan and Anrudh Ahir and the four persons who are the appellants in this case. When his father, arrived these persons cried out that Rama Pande should be assaulted. Then he said that his father in the most peaceable way said "O my brothers why do you beat me" and that Rajkumar Singh gave him a blow on the bead with a lathi and so did Ramnaresh, Ramjanam and Bhuneshar while Anrudh Ahir also struck him and that he fell down. He then said that he (Faujdar) went to the rescue of his father and that he was assisted by Kulpu and Ram Bilas who had been ploughing in a neighbouring field but that they were beaten by the accused and put out of action and that then the accused took the body of Rama Pande who was then probably dead and tied him by his dhoti to their lathis and carried him off in the direction of Alladahi.

Before he left the thana his mother Dhaneshri arrived but before the Sub-Inspector could take a statement from her he had to interview the accused Rajkumar Singh who in the company of one Budhiram who gave evidence at the trial had arrived at the thana after Faujdar but before Dhaneshri. The evidence of Budhiram was given in a very straightforward manner and no criticism appears to be possible of either his honesty or impartiality. At the trial he said that on this particular morning in October he had gone to Tulsipur which is about a mile from the scene of the occurrence and there he met Rajkumar Singh who told him that a quarrel had taken place between him and Kulpu and Faujdar and Rajkumar and asked him to accompany him (Rajkumar) to the thana and that on their arrival or shortly afterwards Dhaneshri also arrived and there Rajkumar laid this First Information Report. Rajkumar''s information was as follows:-- He said rather more than he had told Budhiram. His story was that on the same day at about 8 o''clock in the morning he and some persons whom he mentioned had a fight with Rama Pande and a party of persons accompanying Rama Pande and that Rama Pande was left on the field of battle with his bead injured, possibly unconscious, certainly lying helpless on the ground. He did not know whether Rama Pande was dead or alive but he had come to give information of the circumstances and to make an accusation against Rama Pande and Faujdar and Kulpu and also against Ram Bilas. In my view this statement was not in the nature of an inadmissible confession for these reasons:-- Rajkumar did not know the contents of the previously made statement by Faujdar, he did not know that he was being charged with any offence, he had not in fact been charged by the Police with any offence; he was not in custody. It has been urged by the defence that the statement for another reason cannot be made use of, namely, that to make use of the statement would be contrary to Section 162 of the Code of Criminal Procedure. In my opinion this argument is disposed of by the reasoning of Sir George Rankin, Chief Justice of Calcutta, in the judgment reported in the case of Azimaddy and Others Vs. Emperor, . In my opinion the statement was a mere admission and admissible in evidence against the accused Rajkumar but not against his co accused. In so far as Rajkumar is concerned this statement is strong evidence that at about 8 o''clock in the morning he had in fact with some others had a fight with Rama Pande and some others of Rama Pande''s side, that Rama Pande had been left unconscious and probably severely injured; but it is no evidence of Kama Pande''s death. The only evidence of Rama Pande''s death is supplied firstly by Faujdar and his account is somewhat the same as that which he gave in the First Information Report.

Faujdar''s evidence on any subject on which he might choose to give evidence is open to the very strongest suspicion and should not be accepted without the fullest possible confirmation because first of all he lied over the time he arrived at the thana and he obviously lied for a highly discreditable reason, the statement that he arrived at 10 o''clock in the morning being really with the object of implicating the person Ismail who has been acquitted. I need not go further into that; the reasons for coming to that conclusion are very clearly stated by the Sessions Judge. Then he lied about the conduct of the Sub-Inspector who he said kept him waiting while he (the Sub-Inspector) went to eat and smoke, a statement which was denied by the Sub-Inspector and I see no reason whatever for disbelieving the evidence of the latter. He lied and contradicted himself about the presence of Rajnath Singh and Balesar Singh at the occurrence, first of all saying that they were present, then not present and then leaving it doubtful. He apparently wanted to implicate these people. Then he lied in stating that there was no motive for any enmity with any of the accused persons and finally he is a person of such a character, that his evidence on any subject would probably be untrue.

Faujdar''s mother Dhaneshri says that she saw the body carried to a field near Alladahi and there dismembered. The Sessions Judge disbelieved her story because if she had as she says gone straight from witnessing this spectacle to the thana she would have got there before noon. I do not agree with the contention of the prosecution that this witness has been discredited upon an immaterial point only. The story of her following the body from the field where the occurrence is supposed to have taken place to the field near the basti Alladahi is a very material point. She has been hopelessly discredited upon that and I see no reason for doubting that her evidence is equally unsatisfactory upon other material points. Kulpu and Rani Bilas his son probably did see the fight which undoubtedly, in our opinion, took place that morning. They probably saw Rama Pande fall as described by Rajkumar but they are enemies of Rajkumar and there was clearly a consultation at Bhawanipur between Kulpu, Ram Bilas, Dhaneshri, the daughter of Rama Pande and Kulpu''s wife which they seem anxious to conceal. Kulpu and Ram Bilas both say that they were at Alladahi on the night following the occurrence but if so they ought to have been seen by the Sub-Inspector and would have been seen by him but he says that he found Alladahi deserted by its menfolk.

The evidence of the other woman is, in my opinion, open to suspicion. They are under the control of their men-folk and possibly under the control of the elder women and that is particularly in the case of Maheshri who has herself been largely discredited by pretending that she did not know Kulpu and Ram Bilas to whom we have every reason to believe she is related.

Finally it is urged upon us that there are certain inherent improbabilities in the story of what is alleged to have happened after Rama Pande fell under the blows of Rajkumar and his friends. First of all it can hardly be believed "that Rama Pande, Faujdar, Kulpu, and Ram Bilas are such peaceable inoffensive persons that they would put up no resistance to an attack made upon them by four other men. Secondly, it is said that it is highly improbable that had, in the course of the attack, Rama Pande''s body really been carried away as alleged that they would not have followed the body and endeavored to rescue it. Then it is pointed out that Rajkumar made a First Information and stated that he had left Rama Pande lying on the field of battle and that it is unlikely that he would have told such a story had he in fact taken part in dismembering and disposing of the body. Then it is said that having regard to the ferocious nature of these people is it likely that they would have allowed the old mother Dhaneshri to follow the accused''s party with the body as they say she did. It is further said that if the attack and the carrying of the body had taken place as stated by the prosecution witnesses that first of all there would have been more blood found upon the ground at the scene of attack. I do not know that this is a very cogent criticism but there certainly is likely to have been some blood left upon the trial upon which the body is supposed or said by Dhaneshri to have been taken and Dhaneshri made no attempt to get the Sub-Inspector to follow up the trial and try and find the traces of blood, a thing which it is probable she would have done had her story been true because she would have hoped at any rate for confirmation by the blood stains of the track which the body had taken.

The real question is whether on this sort of evidence we can convict these four men of murder with either of the two inevitable consequences. In my opinion the fact that Kama Pande was truck down by a party of which Rajkumar was a member is established beyond any doubt. The evidence of his death is consequence of that attack and the identity of those who accompanied Rajkumar is quite unreliable. As I have said, the statement of Rajkumar if taken as an admission is of no effect against his co-accused and it is just as likely that Rama Pande was disposed of either living or dead by his own party and that this story was invented to bring about the death of his enemies by vicarious means and indeed such vicarious means are likely to be employed by persons whose physical courage is as Rama Pande''s party described it themselves. The fact appears to be that first of all Rama Pande, as I have said, was a person of an atrocious character and secondly that he was in the habit of going about from place to place as a sanyasi which is very likely, because in that semi-sacred guise he would be the more able to lay his plans for the conduct of his real intention which was that of a robber and as far as we can see also a murderer. For these reasons we feel that the prosecution have not succeeded in making out their case. Indeed in any case where the body has disappeared it must of necessity be very difficult to prove first of all that the supposedly murdered person has actually died and secondly that he died a violent death, especially where the disappearance has taken place in circumstances where it is not humanly impossible for him to have survived. The case of a man thrown overboard from a ship in mid-channel and the body not being recovered is entirely different. This is a case where the possibilities are very wide as to what has since become of the body, and although we may be of opinion that the probabilities on the whole are that he was slain by the accused person and for myself the probability certainly leans towards that view and the probability is that his body was disposed of in somewhat the way described--the evidence is not sufficient to enable that view to be come to with the degree of certainty which is required for the purpose of depriving men of their liberty for the rest of their lives.

I wish to make two final observations. The Sessions Judge has considered that the evidence of the Sub-Inspector is to a large degree not to a material degree for the purposes of this case to be discounted. I have looked through the evidence which he gave before the Sessions Judge and I have looked at the notes which he took of his observations upon the field of occurrence when he measured the distance between various places and to my mind it is perfectly clear that his confusion of mind which really is the origin of the learned Sessions Judge''s criticism of his evidence is to be found in a very simple misunderstanding. He had written down the distance between two places as 50 paces. In writing the number 50 he had written a large 5, and the 0 which would make the 5 into 50 is continued into the P of the word "paces" and a casual reading of his note might lead him and I think did lead him to the statement for a moment that the distance was only 5 paces. From that point he became confused. He could not reconcile this what he must have known was the obvious fact that the distance was more than 5 paces because one was on the north side and one was on the south side of the field. From that point his evidence became confused and 1 think that misunderstanding was really the basis which started the learned Sessions Judge''s cross-examination. He may have been somewhat dilatory in investigating the crime but I see no reason upon the evidence to come to any other conclusion than that he was an honest man doing his best to give an account of what he had observed to his own knowledge.

The last observation I wish to make is this. Mr. Nirsu Narain Sinha who has put this case before us with extraordinary clarity and great ability has been considerably hampered by the way in which the conduct of the defence took place in the lower Court. It is no new experience to note that the art of advocacy is not practised in the defence in lower Courts in such a manner as to lead most directly to the acquittal of the client. Instead of seeking out the main points for the defence and in seeking to establish this by cross examination the cross examination wanders round wholly irrelevant matters and the real criticism of the evidence for the prosecution is to be obtained by looking at the evidence in-chief. The evidence given in cross examination is not of the slightest value in the interest of the accused persons. That is only an observation by the way and does not affect the merits of this case.

In my view the prosecution have not succeeded in surmounting the extremely difficult obstacles which confronted them and the four accused persons are entitled to be acquitted and released. The convictions and sentences are accordingly set aside.

Adami, J.

I agree.