Saudagar Singh and Others vs Emperor

Courtney-Terrell, C.J.—Three of the appellants, that is to say, Saudagar Singh, Gaya Singh and Chaturi Singh are brothers. Appellant 3 Mulki Singh is their cousin. They have been convicted before the Sessions Judge of Monghyr u/s 302, I.P.C., of the murder of their uncle Baldeo Singh. The deceased and his two brothers Singheswar Singh and Kirat Singh lived at mauza Kanhai Ohak in a house which has an angan common with that of the house inhabited by the accused. The families separated ten years ago and have since been on bad terms.

That the deceased was murdered admits of no doubt; he was found in the forenoon of 25th September 1928 in a moonj jungle belonging to him and his brothers with several injuries, including a fractured skull, which had clearly been inflicted with lathis. It is also clear that the identity of the murderers is well known in the village and there has been a determined attempt to hush up the crime. Whatever may be our suspicions the case must be decided upon the evidence given in Court. The precise hour at which the murder took place is a matter of considerable doubt.

In the first information it is stated to have occurred between noon and 2 p.m., but the evidence indicates that it took place at some hour considerably before this. The day was cloudy and it is possible that the absence of the sun prevented the witnesses from being accurate on this point. The main evidence for the prosecution and the sole evidence connecting the accused with the murder is that of the two brothers of the deceased, Singheshwar and Kirat. They state that at about noon on 25th September they were working in the moonj jungle. In this jungle there is a rectangular area which had been cleared by the brothers. Singheshwar says that he was working within the jungle close to the western end of the rectangle and that Kirat was in the jungle on the eastern side of it Both were engaged in splitting moonj. Their brother Baldeo came from the village about a mile and a half distance to the south-east bringing their midday meal. Having delivered this he left them, his return path taking him through the jungle on the south of the cleared rectangle.

Hardly had he entered the jungle when they heard a cry which they stated to have been "Saudagar and all his brothers are beating me. Run." Bach says that he issued from the jungle into the clearance and from his position saw the accused beating the deceased who was lying on the ground at the edge of the jungle on the south side of the clearance. They say that they raised a "hulla" and a number of persons in the vicinity ran up, whereupon the accused took to flight. They took Baldeo who was dying to a path (dagar) on the east of the clearance. Singheshwar says that he fetched some milk from a bathan close by and gave it to Baldeo who drank it and that Baldeo stated to him that he had been beaten by "Gaya Singh-four brothers (charo bhya)." There were many people present but not one, not even the other brother Kirat Singh makes any mention of this statement attributed by Singheshwar to Baldeo. The injury to Baldeo''s head although not of a kind to preclude absolutely the possibility of his having spoken, makes speech of any kind extremely unlikely. Kirat expressly says that when Baldeo was first found he was completely out of his senses and could not speak at all.

In spite of the fact that a large number of people came upon the scene very few have been called, and Singheshwar says that he did not notice who they were. There is good reason to believe that Singheshwar was not present at the occurrence. The first witness after the two brothers Singheshwar and Kirat was one Bheku Singh and he states that he did not notice if any of the relations of the deceased were present until his body had been brought to the village. The second witness Jhalo Chaudheri (P.W. 4) expressly states that neither Singheshwar or Kirat were near Baldeo and does not know if they were in the village on that day. The third witness Bangali Chaudheri (P.W. 5) says that he heard Singheshwar and Kirat making a "hulla" that their brother was being killed, saw two men running away, but was unable to recognize them. But it is clear that he stated before the police that he could not say if Singheshwar was there.

A witness Hakroo Mahto (P.W. 6) was called who states that he remembers Singheshwar coming and asking for milk for his brother who had been killed by his gotias, but the witness did not go to the scene of the occurrence. None of the witnesses save Singheshwar and Kirat professes to have seen the assault or to identify the assailants. None, but Singheshwar, says anything about the dying statement of Baldeo, and, in spite of the long delay in removing the body of Baldeo and the crowd of people present, none of the witnesses seems to have heard or to have been interested in the names of the assailants.

A khatia was sent for from the village and the bringing of this must have taken a considerable time. The body was placed on it and taken to the village. One witness Bheka Singh states that he went and called two constables who were engaged upon some business at a neighbouring village. These constables, abandoned the work they were engaged on and came to Kanhai Chak to the house of Singheshwar Singh where the dead body was shown to them. They asked that it should be taken to the, thana, but the people assembled said that they would not start any case and wanted the matter settled. By this time Singheshwar had disappeared. The constables asked where he was, but received an evasive reply. He appeared after an hour but did not explain his absence and the body was then taken to the thana. The Sub-Inspector made an investigation on the following day but was unable to discover anything material. He could not find the complainant or his brother. They and the other witnesses avoided appearing before him for some days. Indeed when he was found in his house the complainant feigned illness.

To my mind it would be quite unsafe to convict the appellants upon this evidence. It is perfectly clear that the villagers are well aware of the identity of the murderers whether they are or are not the appellants in this case. But whether it be that the deceased was unpopular, or that the real murderers were public favourites, it has been decided that no evidence shall be forthcoming. The evidence of the two brothers of the deceased is clearly unreliable and unless they are to be believed the prosecution must fail. I would accordingly set aside the conviction and direct that the four appellants be set at liberty.

Rowland, J.

I agree.