Sadashiva Daulat vs State

Shinde, J.—Appellant Sadashiva has been convicted by the Sessions Judge, Nimar, under Sections 302 and 892, Penal Code, and sentenced to transportation for life and a fine of Rs. 25 and 8 years rigorous imprisonment and a fine of Rs. 50 respectively. Being aggrieved by the judgment and order of the Sessions Judge he has filed this appeal.

The case of the prosecution is that on 1st December 1948, in the village Khetia, Maha-roo and his brother Sakharam took their cattle for grazing in the morning. Their wives also went out to work as labourers, leaving in the house their mother-in-law Radhibai an old woman of 70. and Janki daughter of Sakharam, a girl of about 10 years and Pandurang son of Maharoo a boy aged 2 1/2 years. Radhibai who went out to sell fish a little after midday returned home at about 5 P.M. and found that Pandurang was missing. Janki was preparing meals in the house. Soon after the brothers Mabaroo and Sakharam returned home. They searched for the child but in vain They made a report at the police station Khetia at 6 P.M. The police proclaimed by beat of drum that Pandurang son of Maharoo was missing. Pandurang''s dead body was noticed the next morning in a rivulet running close to the locality by Gangabai who informed Maharoo about it The post mortem report revealed that death of Pandureng was caused by throttling The accused Sadashiva was arrested on 2nd December 1948, at 2 P.M. Sadashiva showed the place where the Articles were hidden and recovered them from the Gawan (manger) of Fakira at 9 P.M. on 2nd December 1948. He was challenged in the Court of the First Class Magistrate, Khetia who committed the accused to the Sessions Court, at Barwani for trial.

After discussing the evidence his Lord-ship proceeded: The evidence discussed above discloses the following incriminating circumstances against the accused: (1) his presence near the deceased at about 4 P.M. (2) his presence at the shop of Sukhalal and the Bale of Kada to Pralhad (8) his recovery of Articles Exs. P-17, P. 18 and P-19 from the Gawan of Kotha of Fakira (4) the taking of Kutar in a basket early on the morning of 2nd December 1948 from the Kotha of Fakira towards the Nala (5) the statement of accused before the committing Magistrate and the Sessions Judge. I now proceed to examine how far these circumstances appearing in the evidence against the accused go to prove the guilt of the accused. [After further discussing the evidence his Lordship proceeded:] This leaves therefore, no doubt in my mind that the Articles recovered by the accused were the same which were on the body of the deceased on the day of occurrence.

The statement of the accused recorded in the Panchanama that the silver Articles are hid-den in the Gawan of the Kotha of Pakira which he would recover is admissible u/s 27, Evidence Act. This is a statement which the accused made in the custody of the police and it led to the discovery of the ornaments. Hence, it is clearly admissible in evidence, vide AIR 1937 220 (Nagpur) This statement is also admissible u/s 8, Evidence Act, as it is indicative of the conduct of the accused (vide Section 8, Evidence Act Mt. Jamunia v. Emperor AIR 1936 Nag 200 : 37 Cr. L.J. 1047.

The possession of the Articles Exs, P-16 P-17, P-18 and P-19 also raises a presumption against the accused u/s 114, Evidence Act lustration (a) to Section 114 Evidence Act, reads as, follows:

The Court may presume that a than who is in possession of stolen goods soon after the their is either: thief or has received the goods knowing them to be stolen unless he can account for his possession.

The illustration although refers to that is not necessarily confined to cases of theft: but extends to all charge however penal they may be, including even murder. In a case in which murder and robbery form part of one transaction the recent and unexplained possession of the stolen property is not only presumptive evidence against him on the charge of robbery but is also evidence against him on the charge of murder (vide Emperor Vs. Mayadhar Pothal, ; Ramji v. Emperor 53 I.C. 481 : A.I.R.1918 Nag. 67: 20 Cr. L.J. 753 , AIR 1949 277 (Nagpur) The High Court of Bombay, no doubt has held in Bhikha Gober v. Emperor AIR 1943 Bom. 458, that the mere fact that the accused produced shortly after murder ornaments which were on the murdered woman is not enough to justify an inference that the accused must have committed the murder. The learned Judges observed in the above case:

It is obvious that somebody else might have committed murder and the accused might have acquired the ornaments from that person or he might have robbed the deceased and somebody else subsequently murdered her.

The reasons given by their Lordships may be applicable to the facts of that particular case. It appears that the murder was committed on 1st October 1942, and the property was recovered on 6th October. As nearly 6 days intervened between the act of murder and the recovery of property it may be said that somebody else might have committed the murder and the accused only acquired ornaments from that person or that the accused might have robbed the deceased and somebody else subsequently murdered the victim. But the facts of the present case are quite different. As pointed out above the accused was in possession of the armlet Ex. P-16 within an hour of the disappearance of Pandu-rang, It is highly improbable that somebody else could have committed the murder and transferred the stolen property to the accused. The only rational inference that can be drawn is that the accused himself murdered Pandu-rang and committed robbery. In Sogiamuthu Padayachi v. Emperor 50 Mad. 274: AIR 1926 Mad. 638 : 27 Cr. L.J. 394, it was held that when the charge is that the accused person committed murder and theft in a building and the unexplained possession of the stolen property is the only circumstance appearing in the evidence against him the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered: vide also, Mt. Jamunia v. Emperor AIR 1936 Nag. 200 : 37 Cr. L.J. 1047 . In another case it was held that a person found in possession of stolen property a couple of hours after the burglary may be convected u/s 457, Penal Code: vide AIR 1933 117 (Oudh) . In these circum, stances in the absence of any explanation, possession of the armlet by the accused within an hour of the disappearance of the deceased leads to a very strong presumption that the accused himself killed the deceased and robbed him.

The learned advocate for the accused put forward a contention that as the place from where the Articles were recovered was not exclusively in possession of the accused it cannot be said that they were recovered from his possession. This argument, however, does not apply to the possession of the armlet Ex. P-16. Even with regard to Exs. P-17, P-18 and P-19 this argument cannot be sustained.

The accused looked after the cattle of Fakira. Hence he was the person, who had the control over the Kotha. Possession is acquired whenever two elements of the corpus and animus come into co-existence. Salmond defines the possession of a material object as the continuing exercise of a claim to the exclusive use of it. That means for possessing a material object two elements are necessary--animus or intention and corpus. A person is said to be in possession of a thing when the facts of the case are such as to create a reasonable expectation that ha will not be interfered with in the use of it. Thus, a person, who hides a thing, is in possession of it because he gains thereby a reasonable guarantee of the use of it, In the present case the accused had the intention and also the possession of the Articles. Besides by concealing them he gained a reasonable guarantee of their enjoyment. Hence the Articles must be held to be in the possession of the accused. In Mt. Jamunia v. Emperor AIR 1936 Nag. 200 : 37 Cr. L.J. 1047, their Lordships of the Nagpur High Court held that a person who buried treasure in a spot unknown to others is really in possession of it. I am in respectful agreement with this proposition. The argument put forward by the learned advocate for the accused, therefore, has no force.

The prosecution has adduced evidence to show that Pandurang''s body when discovered was smeared with Kutar and that the accused took the basket full of Kutar early on the morning of and December 1948. On this evidence the prosecution alleges that Pandurang''s body was carried by the accused in the basket of Kutar. This allegation cannot be held to be proved. There is nothing to show that the dead body of Pandurang was actually carried in a basket of Kutar except the fact that some husk was sticking to the dead body. Some prosecution witnesses have also stated that the kind of Kutar found on the body of Pandurang was the same as that which was discovered from the folds of the accused cap. To my mind this evidence has very little weight. It is very doubtful whether Kutar of one kind can be distinguished from Kutar of another kind. Secondly there is no evidence on record to show that the kind of Kutar that was used in the Kotha of Fakira was exclusively used by Fakira and no one else. The fact that the husk was sticking to the dead body of Pandurang and the fact that the accused was carrying a basket of Kutar early in the morning on 2nd December 1948 do not necessarily lead to the inference that the dead body of Pandurang was carried by the accused.

The learned Sessions Judge has taken into consideration the statement of the accused made before him and in the course of inquiry the accused, no doubt, hag admitted his guilt before the committing Magistrate; and when that statement was read to him by the Sessions Judge ho stated that he made that statement and that it was true. When one reads the statement of the accused made before the committing Magistrate it is evident that the answers given by the accused were not his own. The questions put to him also were so involved and lengthy that it would not have been possible for a man of the accused''s status to understand them properly. For instance the first question put to him was:

l- lq[kyky o izYgkn ds c;kukr ls ik;k tkrk gS fd odqos ds jkst fnu ds 4] 5 cts rqe lqdyky dh iku dh nqdku ij vk;s o lqdyky dks dgk fd rqekjs ikl ,d dMk gS tks cspdj rqe mlds iSls iku ds nsnksxs blds ckn rqe eqyfte gjh ds lkFk tks lqdyky dh nqdku ij cSBk Fkk dMk cspus rqe izYgkn lqukj ds ;gka x;s o mls pkanh dk naM dMk NS #i;s Hkkj lks nl #i;s esa csp fn;k ftldks [khapdj izYgkn us ,DthfoV ih- 16 dk rkj cuk fn;k A egkfj;k jk/kh o jruyky lqukj dgrs gSa fd tks dMk rqeus izYgkn dks cspk og e`rd ikUMqjax cPps ds naM dk dMk Fkk tks jruyky lqukj ls cuk;k Fkk vkSj tc e`rd ikUMqjax xqek rks mlds gkFk esa og dMk Fkk lks c;kukr gSA

t- ,DthfoV ih- 16 rkj tks naM ds dMs dks [khpyj izYgkn us cuk;k og naM dk dM+k NS Hkkj eSus izYgkn dks cspk Fkk A ;g dM+k e`rd ikUMqjax cPps ds gkFk esa Fkk A eSaus e`rd ikUMqjax dk dRy djds og dM+k fudky fy;k Fkk A

The question asked was so involved and contains so many different circumstances appearing against the accused that it is impossible for an ordinary villager to understand the question and to explain the circumstances contained in the question. The answers to the questions put by the Magistrate do not appear to be freely given by the accused either. The answers given show that the "accused was tutored. There is no separate judicial lock-up and the under trial; prisoners even when in judicial lock-up are guarded by the police. It is possible, therefore, that some pressure might have been brought to bear upon the accused, to admit his guilt. It is not safe, therefore, to take this confession into. consideration.

The learned Sessions Judge also failed to carry out the spirit of Section 342, Code of Criminal Procedure when he examined the accused u/s 342, Code of Criminal Procedure, he read to him the statement which the accused had made before the committing Magistrate and asked him what he had to say about it. The accused replied.

^^ esjk c;ku rkjh[k 27 @ 1 49 dk tks [kSrh;k eftLV�sV ds lkeus gqvk Fkk og eq>s is eatwj gS A **

The learned Sessions Judge asked him two more questions. One about producing any evidence in defence and second if he wanted to say any-more. This is not, strictly speaking, a compliance with the provisions of Section 842, Code of Criminal Procedure Section 342 lays down that for the purposes of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. The examination of the accused under this section is intended to enable the accused to explain any circumstances appearing against him. Therefore, it is necessary to put questions regarding the circumstances that appear in the evidence against the accused. The learned Sessions Judge did not put specific questions regarding circumstances which appear-ed in the evidence against the accused. He has only examined him generally. The question for consideration is whether such an examination vitiates the trial. u/s 537, Code of Criminal Procedure, no judgment can he reversed or altered unless the error, omission or irregularity has in fact occasioned a failure of justice. Whether it has occasioned a failure of justice or not is a question of fact in each case. In Hashmatulla Rahatulla Vs. Emperor, their Lordships of the Bombay High Court made the following observations:

We are satisfied that the omission to ask specific questions on points like these is not an illegality. The accused was questioned generally on the case and made a general statement, and that we think is all that the law requires, namely, a formal compliance with the provisions of Section 312 of the Code. But there can be no doubt that it is the duty of the Judge to examine an accused person on points which are of great importance to the ease against him. This is made clear from the judgment of the Privy Council in AIR 1933 124 (Privy Council) But it does not follow that the omission to question an accused person on specific points, even though it may be the duty of the Judge to do so, will necessarily vitiate the trial. If the omission to question an accused person on such points is not an illegality, then the omission to do so will not vitiate the trial unless it has in fact caused a failure of justice and whether it has or has not occasioned a failure of justice in any particular case is a question depending on that case alone," Hashmatulla Rahatulla Vs. Emperor,

In the present case the accused admitted his guilt. He was also asked if he wanted to adduce any evidence in defence bat he replied that he did not want to produce any evidence. The learned Sessions Judge also asked the accused if he wanted to say anything more. The accused replied that he did not want to say any thing more. In these circumstances failure to put specific questions with regard to circumstances appearing in the evidence is only a technical defect and it does not affect the accused adversely. If the accused wanted to give any explanation he could have given it in answer to a question as to whether he wanted to say anything more. As the accused had admitted his guilt, it is difficult to imagine what explanation the accused could have given with regard to circumstances appearing in the evidence against him. In my opinion, therefore, omission to put specific questions with regard to circumstances appearing in the evidence against the accused has not occasioned a failure of justice in this case, and hence the trial is not vitiated on this ground.

To sum up, the fact that the deceased was last seen with the accused and the fact that within an hour of the disappearance of the deceased the armlet, which the deceased was wearing, was in the possession of the accused and the fact that the accused on the next day of occurrence gave information to the police that he had hidden Articles Exs. P-17, P-18 and P.19 in the Gawan of Kotha of Fakira Koli and the recovery of the Articles Exs. P.17, P-18 and P-19 by the accused leave no doubt whatsoever in my mind that the accused committed the murder of Pandurang and robbed him of his silver ornaments. The accused, therefore, has been rightly convicted by the learned Sessions Judge under Sections 302 and 392, Penal Code, Looking to the nature of the crime the sentences passed by the lower Court cannot be said to be too severe. The appeal is, therefore, dismissed.

Kaul, C.J.

I agree.