Ram Deyal Kahar vs Emperor

Shearer, J.—This is a reference made u/s 374, Criminal P.C., by learned Sessions Judge of Gaya for confirmation of the sentence of death J passed by him on one Ram Deyal Kahar. Ram Deyal Kahar has appealed against his conviction and sentence, and the appeal has been heard along with the reference.

In the morning of 29th March 1941, a young Chamar boy, who was grazing his cattle in the vicinity, noticed a dead-body lying in a pyne, two miles or so away from Jamhore village. The body would seem to have been lying there for some thirtysix hours or more, as much of it had been devoured by jackals and vultures. When the Sub-Inspector arrived, it was not recognisable but on or near to it were found an andi chadar, a pair of shoes and a dhoti. The Sub-Inspector did not arrive until sometime after dark, and a more close inspection next morning revealed a janao or sacred thread and some pieces of striped shirting. One Bulaki Missir, a young man of Jamhore, had disappeared on the night of 27th March 1941, and a servant of his had already begun to search for him. This servant and also the mother and widow of Bulaki Missir had no difficulty in recognizing the various articles of clothing. It can, I think, safely be assumed that the remains were the remains of Bulaki Missir, and that he was attacked and done to death on the night of 27th March 1941, at the pyne in which his dead-body was found some thirty-six hours later. The post mortem on the dead-body showed that he had undoubtedly been attacked with some heavy and sharp cutting weapon and possibly, also, with some such weapon as a lathi. The learned Sessions Judge assumed that two weapons must have been used in the attack made on him, but this is not, I think entirely clear from the medical evidence.

On 30th March 1941, the Sub-Inspector took the appellant, Ram Deyal Kahar, into custody. Next day he arrested another man, Banwari Singh. On 2nd April 1941 a Dusadh youth, Ramjanam, made a statement to the Sub-Inspector, and, later, to a Deputy Magistrate, in which he admitted having been concerned in the murder of Bulaki Missir. A pardon was ultimately tendered to this man, and he gave evidence at the trial of Ram Deyal Kahar and Banwari Singh. According to him, the three of them had decided that night to commit a burglary at Jogia. The pyne, in which the remains of Bulaki Missir were found, was situated more or less midway between Jambore, to which they all belonged, and Jogia. Another man, a casteman of the appellant, was also to take part in the burglary, and, when they got to the pyne, they sat down to wait for him. They had brought with them a good deal of liquor, and, after consuming this liquor, they went to sleep. Ramjanam said that he had woken up at about midnight and discovered the appellant, Ram Deyal, striking Bulaki Missir with a weapon, which he described variously as a balwa, a phalsa or a garasa. The other man, Banwari Singh, was then holding an electric torch in one hand and a bhojali, which belonged to Bulaki Missir, in the other. After Ram Deyal had killed Bulaki Missir, he and Banwari Singh attempted to cut off his head. Before however Ram Deyal could do so, he was overcome by a fainting fit and Banwari Singh and himself had to carry him to a well and draw water to revive him. The trial was with the aid of four assessors, all of whom except one expressed the opinion that the appellant, Ram Deyal Kahar, was guilty and that Banwari Singh was not. It is clear that the reason why the learned Sessions Judge convicted the one man and acquitted the other was that, as against the one, the evidence of Ramjanam Dusadh was corroborated, whereas, as against the other, it was not.

Mr. Raj Kishore Prasad for the appellant has attempted to convince us that Ramjanam Dusadh was not concerned in the murder, and that he was suborned to give false evidence by one Kanhaiya Missir. Kanhaiya Missir is a relation of Bulaki Missir, and, if he was anxious to see that the murderer or murderers of Bulaki Missir were brought to justice, that is not surprising. Ram Deyal Kahar is the owner of a sewing machine and earns a livelihood by operating it. It appears that Kanhaiya Missir has recently purchased a sewing machine, which is operated not by himself but by one of his servants. It was suggested that there had been some trouble between this man and the appellant, who regarded him as an interloper and business rival. Even if there had been some incident of the kind suggested, and the evidence on the point is far from convincing, it would not be enough to explain why Kanhaiya Missir should have endeavored to fasten the responsibility for his nephew''s death on Ram Deyal Kahar, and, still less, why Ramjanam Dusadh should have taken the risk of joining in such a conspiracy. Ramjanam is a servant of one Raghubans Kumar Singh, a petty zamindar of Jamhore, and it was to him that he originally disclosed what he knew of the crime. The Sub-Inspector was not then in the village and Raghubans Kumar Singh sent him to a relation of his, one Mithilesh Kumar Singh. The latter is the President of the Jamhore Union Board, and, presumably, that was the reason why Raghubans Kumar Singh sent Ramjanam Dusadh to him. Mithilesh Kumar Singh communicated with the Sub-Inspector, who at once came to Jamhore and recorded Ramjanam Dusadh''s statement. Immediately after the statement was recorded, Ramjanam Dusadh took the Sub-Inspector to the well and brought out the electric torch. The electric torch had belonged to Bulaki Missir, and his servant and mother and widow at once recognized it. From the well, Ramjanam Dusadh took the Sub-Inspector to a point on the bank of the river Batana. There the Sub-Inspector found a blood-stained lungi. An attempt, not wholly successful, had been made to tear off the coloured border of this lungi. In his confession Ramjanam Dusadh had previously said that the torch had been thrown in the well, that the lungi belonged to Ram Deyal Kahar, that it was covered with blood as at the moment he was attacked Bulaki Missir had been sleeping on it, and that Ram Deyal Kahar had torn off the border and then buried it in the sand on the edge of the river. Mr. Raj Kishore Prasad pointed out that Kanhaiya Missir is also a member of the Union Board, and suggested that Mithilesh Kumar Singh and he were, in consequence, on intimate terms with one another, and so Mithilesh Kumar Singh and his relation, Raghubans Kumar Singh, had agreed to suborn one of the latter''s servants, and in order to give an air of verisimilitude to the statement he was to make, had concealed the electrio torch in the well. As for the lungi, Mr. Raj Kishore Prasad drew our attention to the evidence that dead bodies are cremated on the bank of the river Batana and that, sometimes, the clothing, in which they are wrapped, is left there. The lungi was, however, blood-stained and had been buried in the sand and not left lying about. It at least cannot possibly have been put there merely in order that the Sub-Inspector might find it. The grounds on which the existence of a wide spread conspiracy was suggested are palpably unsubstantial. What would appear to have happened is that, when Ramjanam Dusadh, who is a mere youth, saw that arrests were being made, he became nervous and went and confided in his master,, hoping presumably, that the latter would advise him what to do. If Raghubans Kumar Singh and his relation, Mithilesh Kumar Singh, advised or persuaded Ramjanam Dusadh to make a full disclosure of what he knew, they did nothing that was at all improper. On the contrary, their conduct is deserving of commendation. I am satisfied, as the learned Sessions Judge was, that Ramjanam Dusadh was undoubtedly one of those who were concerned in this murder.

The other and main argument put forward by Mr. Raj Kishore Prasad for the appellant was that the evidence, on which the Court below relied as going to corroborate the approver, did not in fact amount to corroboration at all. Lord Beading in Rex v. Baskeville (1916) 2 K.B. 658 observed:

Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it... The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.

There are several pieces of circumstantial evidence, on which the prosecution in this case relied as going to corroborate the approver. In the first place, when the Sub-Inspector went to interview Ram Deyal Kahar in jail on 9th April 1941, he was struck with the resemblance of the lungi he was then wearing to the lungi which had been recovered from the bed of the river. The Sub-Inspector took possession of the lungi, and both of them were produced at the trial. The learned Sessions Judge observed that each of the two lungis had the same type and colour of border and that "both may well be regarded as forming one pair." As I have already said, the greater part of the border had been torn away from the lungi which was found in the bed of the river. According to Eamjanam Dusadh, the appellant tore oft the border and threw it away. It is obvious that in tearing off the border, the owner of the lungi had a motive; and the only conceivable motive is that the lungi was one of a pair, and that he was apprehensive that if he left the lungi intact and the other lungi was found in his possession, the similarity between the two of tbem might arouse suspicion against him. In Rex v. Baskeville (1916) 2 K.B. 658 at p. 667 Lord Beading observed:

The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connexion with the crime. A good instance of this indirect evidence is to be found in Reg. v. Birkett (1839) 8 C. & P. 732. Were the law other wise, many crimes which are usually committed between accomplices in secret...could never be brought to justice.

In Reg. v. Birkett (1839) 8 C. & P. 732 the prisoner was tried and convicted for stealing a sheep. In order to corroborate the evidence of an approver, reliance was placed on the circumstance that a quantity of mutton, which might have been part of the carcase of the stolen sheep, was found in his house. There was in that case no absolute certainty that the mutton was part of the carcase of the stolen sheep, and there is in this case no absolute certainty that the lungi, which the appellant was wearing in the jail, was the pair of the lungi found in the river bed. But, in each case, the circumstance is one which, if it does not directly connect, at least tends to connect the accused with the crime. Secondly, there is a considerable amount of evidence to show that the appellant, Ram Deyal Kahar, was in the company of the dead man within a few hours of the commission of the murder. According to Ramjanam Dusadh, the appellant went to the house of Bulaki Missir, which is very close to his own, and asked for him. He was told that Bulaki Missir bad gone to the Railway Station at Palmerganj which is apparently close to Jamhore. Ramjanam and Ram Deyal then went towards the Railway Station in search of him. They met him and two other men, Parmeshwar Singh and Jadunandan Sonar, on the way. Bulaki Missir stopped and talked to Ram Deyal Kahar and told him of the arrangements he had made for committing a burglary that night at Jogia. After this conversation they parted, Bulaki Missir going on to Jamhore and Ramjanam and Ram Deyal going on to a liquor shop near the Railway Station. According to Ramjanam, after he had consumed some liquor and eaten some food, Ram Deyal left him and went back to Jamhore in order to fetch Bulaki Missir. The mother and widow and also a servant of Bulaki Missir said that, sometime after nightfall, Ram Deyal Kahar had come to their house and taken Bulaki Missir away with him. Two other men, Barhamdeo Lai and Lachman Prasad, also spoke to having seen Ram Deyal and Bulaki Missir together that night. Apparently, both of them were in the habit of playing cards at the house of Lachman, in which Barhamdeo Lai used then to lodge. Both men said that Ram Deyal and Bulaki had played cards there that night for a short time and had left together at about 9 P.M. The evidence of the various persons, who spoke to having seen the appellant in the company of the dead man that night, may not be wholly consistent and the recollection of some of them may have been at fault as to the exact hour at which they saw them, but I can see no reason to suppose that they were not telling the truth to the best of their ability, and am satisfied that they did in fact see Ram Deyal and Bulaki Missir together. The circumstance that the prisoner was seen in the company of the approver, or, as in this case, of the victim of the crime, may not, it is true, always amount to corroboration. In Reg. v. Farler (1827) 173 E.R. 418, a man was tried on a charge of night poaching, and, in order to corroborate the evidence of an accomplice, reliance was placed on the circumstance that the two of them had been seen drinking together in a public house near the preserve, in which the offence was committed. It transpired in evidence that the prisoner was in the habit of visiting this public house several times a week, and that he lived within a very short distance of it. In suggesting to the jury that the circumstance, that the prisoner and the accomplice had been seen together in the public house, did not amount to corroboration, Lord Abinger, C.B. observed, however:

If they were seen together under circumstances that were extraordinary and where the prisoner was not likely to be unless there was concert, it might be something.

That, I think, it may fairly be said, is the case here. The evidence of the mother of Bulaki Missir shows that the appellant had some business that night with her son; the evidence of Parmeshwar Singh shows that the business was of a kind which the two of them were not prepared to discuss in his presence, and may, therefore, well have been the commission of a burglary; and the evidence of Barhamdeo Lal and Lachman Prasad shows that, whatever the business was, it had not yet been transacted when they left Lachman Prasad''s house. Moreover, one has to bear in mind that the appellant, so far from having admitted that he was in the company of the dead man that night, and explaining why he was and when he left him, merely suggested that the whole of this body of evidence against him had been fabricated. The learned Sessions Judge was, in my opinion, correct in regarding the circumstance, that Ram Deyal Kahar and Bulaki Missir were seen together, as they were seen together that night, as amounting to corroboration. Lastly, there is the curious story of the approver of how Ram Deyal Kahar fainted immediately after the commission of the murder and had to be carried to the well and revived with water drawn from it. This story cannot, I think, be a mere figment of the imagination of a Dusadh youth, anxious to fasten the responsibility for a crime he has himself committed on an innocent man. There was apparently no rope or bucket at the well, and the murderer or murderers of Bulaki Missir would not appear to have gone there to wash their clothing. That they did go to the well is certain, as the electric torch of Bulaki Missir was found in it. The reason why they went to the well would, therefore, seem to be that given by Ramjanam Dusadh, namely, that Ram Deyal Kahar had been seized with a severe fainting fit and that his companions carried him to the well in order to get water to revive him. The evidence of the assistant surgeon shows that Ram Deyal suffers from some chronic heart disease and that he may very easily have collapsed in the manner described by Ramjanam Dusadh. That one of the persons concerned in the commission of the murder fainted and had to be carried to the well in order that he might be revived with water drawn from it, and that the appellant has a very bad heart, are again circumstances which, I think, tend to connect the appellant with the crime. Now, what one has to consider is the cumulative effect of these various circumstances, and the cumulative effect is, in my opinion, this that either the approver, Ramjanam Dusadh, is telling the truth in saying that the appellant, Ram Deyal Kahar, was one of those concerned in the murder, or there occurred that night not one but a series of most extraordinary coincidences. If Ram Deyal Kahar is innocent, then one must assume, in the first place, that one of the culprits had, as Ram Deyal Kahar had, another lungi of exactly the same kind as was buried in the bed of the river. Secondly, one must assume that Bulaki Missir had two rendezvous that night, one with Ram Deyal Kahar and the other with Ramjanam Dusadh and the other person or persons who were responsible for his death. Thirdly, one must assume that one of the latter had a weak heart as Ram Deyal Kahar has, or suffered from some other malady which led to his being overcome and collapsing immediately after, the commission of the crime. It is not, I think, reasonable to assume the existence of such a series of coincidences. On the contrary, the proper inference to draw is that the approver was telling the truth in saying that the appellant was one of those concerned in the murder.

It may be urged that, while the corroboration goes so far as to show that Ram Deyal Kahar was an accessary after the fact, it does not go so far as to show that he was a principal. If it were certain that he took part in the concealment or attempted concealment of evidence relating to the murder, and yet not certain that he took part in the murder, it would, of coarse, be open to this Court, in view of the decision in AIR 1925 130 (Privy Council) , to alter the conviction from one u/s 302 to one u/s 201, Penal Code. Cases may occur in which it would be proper for an appellate Court to take such a course, where, for instance, it appeared, that there had been a sudden quarrel and the murder was a purposeless one, for which one of the dead man''s associates may have been solely responsible. That, however, is not at all the case here. It seems clear that Ram Deyal had previously decided to kill Bulaki Missir and had induced Ramjanam Dusadh and Ban wari Singh to assist him in doing so. In that case, each of the three men was as much guilty as the others, whether he did or did not himself join in the attack on Bulaki Missir. The learned Sessions Judge doubted the truth of what Ramjanam Dusadh said as to the motive for the crime namely, that Bulaki Missir had insulted Ram Deyal''s wife. But the mother of Bulaki Missir said that she had heard a rumour about her son having misconducted himself with the wife of Ram Deyal and had taken him to task. The woman may be older than Bulaki Missir and may have children, but it is not necessary to suppose that Bulaki Missir was infatuated or had been carrying on a regular intrigue with her. It may well be that he molested her or insulted her and that she resented it and complained to her husband. It may be that Ramjanam Dusadh, in his evidence at the trial, minimised the part which he himself had taken in the commission of the crime; but his story in general, that Bulaki Missir was decoyed away that night in order that he might be killed, and that it was the appellant, Ram Deyal Kahar, who had a motive and was primarily responsible for so decoying him, is, I think, undoubtedly true. An accomplice is a competent witness, and although, as a rule of practice, the Courts do not act on his evidence unless it is corroborated, there is in this particular case, corroboration of so ample a kind that the lower Court was in my opinion, fully justified in acting on the evidence of the approver and convicting Ram Deyal Kahar of murder. I would accept the reference, confirm the conviction and sentence and dismiss the appeal.

Chatterji, J.

I agree.