Sanika Munda vs Emperor

Luby, J.—This is a reference under S. 374,. Criminal P.C., made by the Judicial Commissioner of Chota Nagpur in the case of one Sanika Munda whom he has convicted under S. 302, Penal Code, and sentenced to death. There is also an appeal by Sanika Munda.

The charges framed, against Sanika. Munda and four others were that during the night of May 15-16 at Khunti (1) they had formed an unlawful assembly with the common object of murdering a Constable, Jalaluddin, and (2) that they had murdered the said Constable in prosecution of the said common object. The proceedings were instituted on the basis of a "first information report" which was lodged by Kirpal Bagti chaukidar against a person or persons unknown on 16th May at 1 p.m. The chaukidar stated that Deputy Collector''s servant (he meant Sanika), told him that a dead body was lying about a mile out of the town, and he (witness) went there and found Jalaluddin lying dead with wounds on his head and body.

The prosecution case was that Jalaluddin had been murdered by the five accused, because he was engaged in an intrigue with a young Munda married woman named Phulo who is related to Sanika and to another accused Lohra who has been acquitted. The constable is said to have asked one Ragho Sahu to arrange for a clandestine meeting between him (Jalaluddin) and Phulo. Ragho has said that he passed on this request to a woman called Deomat, said to be the mistress of Lohra mentioned above. Deomat made arrangements with Phulo, who came to the Kunti Mela with her relative on 15th May. Some time after midnight Phulo slipped away from the Mela with Deomat and Ragho and joined Jalaluddin in a field, where Jalaluddin proceeded to have sexual intercourse with Phulo. In the meantime the five accused reached the spot by another route and found Jalaluddin in flagrante delicto and killed him with deadly weapons. Ragho and Deomat claimed that they had remained within a short distance of the place where Jalaluddin was having sexual intercourse with Phulo, and to have seen the murder committed. They were the only professing eyewitnesses, and the learned Judicial Commissioner has disbelieved them both for reasons which appear to be excellent.

As there was no other evidence against the other four accused (Lohra and others), the learned Judicial Commissioner has acquitted them. But he has convicted Sanika on what is left of the evidence, that is to say: (a) a statement which Phulo made before the Sub-divisional Magistrate of Khunti under S. 164, Criminal P.C. on 20th May, and (b) the discovery of certain blood stained articles in Sanika''s house on 17th May. Phulo in her statement of 20th May, described how she had been procured by Deomat for the constable''s pleasure and how she had gone to the field with the constable. She further stated that while sexual intercourse was still going on some persons, including Sanika appeared on the scene, whereupon the constable told her to run away and she ran back to the mela. As she was running away, she heard the constable cry out "come here they are cutting me." The learned Judicial Commissioner has reproduced Phulo''s statement in full in the course of his judgment, and has come to the conclusion that:

this statement should be accepted as an altogether reliable account of what happened on the night of the occurrence.

When Phulo was brought before the committing Magistrate, the Court Sub-Inspector at once declared her hostile and got the Magistrate''s permission to cross-examine her. It does not appear why the Magistrate allowed this before Phulo had made any statements detrimental to the prosecution case. However when cross-examined by the C.S.I. she said that her previous statement recorded under S. 164, Criminal P.C., was untrue, and had been induced by threats of assault made by the Police Sub-Inspector. Before the Judicial Commissioner, Phulo said that she did not know the constable and was not present with him when he was murdered, and that the sub-inspector had tutored her at the police station to make a false statement.

Even if we could take Phulo''s statement recorded under S. 164 as it stands. I would be most reluctant to take it as a reliable account of what happened during the night of May 15-16. There is nothing on record to show where or in what circumstances the Sub-divisional Magistrate recorded Phulo''s statement under S. 164, or whether any Police Officer was present when she made that statement. It would appear that in the first instance Phulo was treated as an accused in the case, because we find in the evidence of John Lucas (P.W. 6), that he saw Phulo in the thana lock up at Khunti. Phulo''s story about her assignation with the constable may be true but what guarantee is there that her mention of Sanika as one of the constable''s assailants is correct ? Her statement recorded under S. 164, Criminal P.C., was not recorded in the presence of Sanika, so she could say what she liked against him. For all we know she may have named Sanika merely to divert suspicion from her own husband, who is said to have been present at the Mela and would be the proper person to take vengeance for any adultery committed by or with her. Strangely enough the husband has not been called in to the witness box, though one would have supposed that his evidence would be of some importance.

There is another serious objection to this part of the evidence, and that is that it is quite inadmissible as substantive evidence against Sanika. The learned Judicial Commissioner has admitted Phulo''s earliest statement under S. 157. Evidence Act, and that he was entitled to do. But a former statement admitted under S. 157 can only be used to corroborate the statement of a witness. In the present case it was sought to contradict Phulo by her former statement. She stood contradicted thereby, and that fact was calculated to discredit the evidence which she gave in the Judicial Commissioner''s Court. But the Judicial Commissioner could not use Phulo''s former statement as substantive evidence against Sanika. If any authority is required for this it may be found in the observations of the Allahabad High Court in the case of Bishen Datt v. Emperor, 1927 All 705 = 105 IC 677 = 28 Cri LJ 965.

As for the blood stained articles found in Sanika''s house, they were four in number, viz., Ex. 14, gamcha, Ex.16 chadar, Ex. 6 swordsheath, Ex. 15 chadar. It appears from the Chemical Examiner''s report that stains of human blood were detected on Exs. 14 and 16. On the other two Exs. 6 and 15 stains of blood were found, but the stains being disintegrated the Chemical Examiner could not determine the origin of the blood.

The Judicial Commissioner did not question Sanika so as to enable him to explain the circumstances appearing in evidence against him, as required by S. 342, Criminal P.C. But I find that the committing Magistrate questioned Sanika about these blood stained articles, and Sanika admitted ownership of the sword-sheath only. Regarding the cloths, Exs. 15 and 16, he said that they belonged to his mother and sister-in-law who live in his house. It appears from, the evidence of Kapil Gopal, P.W. 9, that when the Sub-Inspector searched Sanika''s house, Sanika''s mother and wife were present and Sanika''s mother had a bleeding'' wound on her leg. As these women were living in Sanika''s house at the time, the blood stains found on these cloths might be due to the mother''s open wound, or they might be the result of "the curse of "Eye."

As the learned Judicial Commissioner has remarked, there is practically no other evidence against Sanika. Sanika is the orderly of the Chaukidari Officer at Khunti. When asked to account for his movements on 15th May, he stated that he was at Court till 5 p.m., remained at home all night, and went to the fair at 7 a.m. He did not call any defence witnesses. But his story is corroborated to a certain extent by John Lucas who says that he saw Sanika and Lohra coming on cycles from the direction of the fair at 9-30 a.m., on the 16th. The witness Ragho stated that Sanika came to his house at 7 a.m., and washed two blood stained weapons there. But this evidence was rejected by the Judicial Commissioner as unworthy of credit. In my opinion there is no sufficient evidence to support the conviction of Sanika Munda under S. 302, Penal Code. I would therefore allow the appeal and set aside the conviction and sentence and acquit Sanika Munda. Before leaving this case I think I should notice the following remarks with which the learned Judicial Commissioner has concluded his judgment:-

I must admit that I have come to the finding regarding Sanika, accused, after much anxious deliberation, for the evidence against him has been unusually conflicting through out. Incoming to it. I have also been actually conscious of the danger of basing his conviction on the residue of the prosecution case after so much has been rejected as false and fabricated. For the reasons already given however I am of the opinion that this finding is, nevertheless, in accordance with the evidence on the record, though it is with a feeling of intense relief that I am now able to refer this case to the Hon''ble High Court for confirmation of the sentence which I am now obliged under the law to pass.

I am not quite clear what the learned Judicial Commissioner meant by these remarks. But if he meant that he was intensely relieved to be able to shift the responsibility for hanging Sanika Munda on to this Court, then I think he is under some misconception about his duty as a Sessions Judge. A conviction under S. 302, Penal Code, should not be made, because the Court is morally convinced of the guilt of the accused, but only when there is good and sufficient evidence to support such convinction. And the responsibility for a conviction (or acquittal) must rest principally upon the Sessions Judge, because he has the advantage of seeing and hearing the witnesses face to face; whereas this Court has perforce to be content with seeing the Judge''s record only. If the learned Judicial Commissioner felt qualms about the case, he should have given Sanika the benefit of doubt and acquitted him.

Mohamad Noor, J.

I agree.