State vs Prabhu Sahay Kharia and Others

Anwar Ahmad, J.—This reference u/s 374 of the Code of Criminal Procedure has been made by the Second Additional Judicial Commissioner of Chota Nagpur for confirmation of the sentence of death awarded by him u/s 302 read with Section 34 of the Indian Penal Code to the three accused persons in Sessions Trial No. 28/13 of 1968 for the commission of the murder of one Bamabas Kharia. The aforesaid accused persons have also filed an appeal from Jail against their conviction and sentence u/s 302 read with Section 34 of the Indian Penal Code. The reference and the appeal have been heard together and they will be governed by this common judgment.

Appellants Mansidh Kharia and Mural Kharia are sons of appellant Prabhu Sahay Kharia. The case of the prosecution is that appellant Prabhu Sahay had a dispute with the deceased regarding plots 116 and 118 of Khata No. 8, known as Makar Kanda field, in village Machka within the jurisdiction of police station Kolabira in the district of Ranchi. This dispute gave rise to a proceeding u/s 145 of the Code of Criminal Procedure between the deceased and the appellants which was decided in favour of the deceased on the 25th September 1967. It is alleged that, early in the morning on the 7th November 1967, when the deceased was milking his cow in his angan, the appellants, armed with a lathi, a balua and & tangi, came there. Appellant Mural assaulted the deceased with the tangi, as a result of which the deceased fell down. The appellant Mansidh assaulted him with the balua and appellant Prabhu Sahay assaulted him with the lathi. The deceased died then and there. Thereafter, the appellants took the dead body to some distance and then dragged it to the aforesaid Makar Kanda field and left it there.

The further case of the prosecution is that the deceased had a barki and a chadar on his person and, while his dead body was being removed, the barki and the chadar fell down in his angan and were stained with blood. In Makar Kanda field, appellant Prabhu Sahay cut the left leg of the dead body and. then he took the tangi and the cut leg in a sack, wrapped with leaves, and produced the same before the officer in charge of Kolebira Police station (P.W. 14), giving rise to station diary entry No. 136 (Ex. 2) recorded by P.W. 14 on his statement at 10-30 A.M. on the same date in presence of Deo Prasad Sahu (P.W. 5) and Balkishun Sahu (P.W. 13), wherein it has been stated that appellant Prabhu Sahay cut the leg of the deceased with a tangi, assaulted him with the same incessantly and killed him and that he had brought the left leg after cutting it and the tangi with which he assauted the deceased. P.W. 14 arrested Prabhu Sahay then and there. Thereafter, at about 11 A.M. Philip Kharia (P.W. 1) lodged'' a first information report (Ex. 5) at the police station.

The appellants pleaded not guilty to the charge. Appellants Mansidh and Murel stated in their examination u/s 342 of the Code of Criminal Procedure that they were not present in their house and had gone to watch their field. Appellant Prabhu Sahay, in his examination u/s 342, denied both in the committing Court and the Court of Session to have murdered Mamnabas. In the committing Court, he also denied to have taken the blood-stained tangi and the cut leg of the deceased to the police station. He, further denied that Court to have made any statement before P.W. 14 to the effect that the deceased was killed with the tangi and the cut leg was that of the deceased. In the Court of Session, he admitted to have produced the cut leg and the tangi at the police station but denied to have murdered Barnabas and stated that he found the tangi which he took to the police station. He also denied that clothes on his person had marks of blood.

It may be stated that, on the state of evidence on record, it cannot be doubted and, in fact, has not been disputed before us that the deceased was brutally murdered. The only point for determination is as to whether it has been proved beyond all reasonable doubt that the appellants were responsible for his death.

The prosecution relied on the evidence of P.W''s 1, 2 and 3 so far as the participation of the appellants in the occurrence is concerned. In addition to the evidence of the aforesaid witnesses, in order to establish that appellant Prabhu Sahay participated in the occurrence, the prosecution relied on the statements contained in Exhibit 2.

P.W. 1 is the first information and is the father of P.W. 2 and the husband of P.W. 3. They all live in one and the same house which is close to the house of the deceased. P.W. 1 has stated in his evidence that the house of the deceased is five yards from his house towards east. The deceased was killed in his own angan where he was milking his cow. This angan is open on two sides, according to this witness, towards east and south. At the time of the occurrence, the witness was in his angan and, from there, he saw the appellants variously assaulting the deceased. Barnabas died due to this assault. On his death, the appellants lifted the dead body and carried it to some distance and then dragged it to Makar Kanda field which is at a distance of about two hundred yards. According to this witness, his house lies to the west of the house of the deceased, and the angan of the deceased is open towards east and south. The only reasonable inference, therefore, is that the angan of the deceased is closed towards north and west and, in the absence of any evidence regarding the height of the western enclosure of the angan of the deceased, it becomes highly doubtful as to whether P.W. 1 could have seen the occurrence which, on his own evidence, happened inside the angan of the deceased. He admits that about six persons have houses near the place of occurrence and he did not raise any alarm out of fear but further says that all other persons had gone to work in their fields. According to this witness, before going to the police station, he went to the house of the choukidar (P.W. 11) and met him there. Thereafter, he went to the house of Udait Kharia, father-in-law of the deceased, and told him about the occurrence. This Udait Kharia has, however, not been examined by the prosecution to corroborate the evidence of P.W. 1 nor is there any explanation for his non-examination. The choukidar, whom P.W. 1 admits to have met at his house, although examined as P.W. 11, does not say in his evidence that P.W. 1 told him anything about the occurrence. It was in the natural course of human conduct for P.W. 1 to have told P.W. 11 about the occurrence and, had he done so, it was sure that P.W. 11 would have stated so in his evidence. In the absence of such a statement in the evidence of P.W. 11, it becomes highly doubtful that P.W. 1 really witnessed the occurrence, as claimed by him.

P.W. 2, as already stated, is the son of P.W. 1 and, like his father claims to have seen the occurrence from his angan. He clearly states that the angan of the deceased is not closed on all sides. According to him, it is open on the north and the south and, thus, he contradicts P.W. 1 who has stated that it is open on the east and the south. P.W. 2, further, adds that the enclosed sides are surrounded by forest shrubs. The sun had not risen when the occurrence took place and it was still a bit dark. The evidence of this witness clarifies the position that the angan of the deceased is closed towards the west, which, as already stated, casts a grave doubt on his being an eye-witness to the occurrence. According to this witness, contrary to what has been stated by his father. P.W. 1 as well as P.W''s 2 and 3 raised alarm. He, unlike his father, does not say that the neighbours had gone to work in their fields but does not say whether any of the neighbours came on hearing the alarm.

P.W. 3, like her husband and son, claims to have witnessed the occurrence from her angan, and, on this point, her evidence is open to the same criticism as is the evidence of P.W''s 1 and 2. She, further, admits that her husband (P.W. 1) was in the party of the deceased since long and cultivates Makar Kanda field for him. Thus, on this admission of P.W. 3, the testimony of P.W''s 1, 2 and 3 suffers from interestedness. To add to this, no independent witness of the locality has been examined by the prosecution.

For the reasons stated above, the conviction of the appellants cannot be based on the testimony of P.W''s 1, 2 and 3.

The next point for determination is as to whether the conviction of appellant Prabhu Sahay can be sustained on the statements contained in station diary entry No. 136 (Ex. 2), P.W. 14 says in his evidence that this appellant produced a tangi and a cut leg and gave his statements which he recorded in Exhibit 2. The evidence of P.W. 14 further is that he recorded the statements of this appellant in Exhibit 2 in presence of P.W''s 5 and 13. Out of these two witnesses, P.W. 5 admits in his cross-examination that, before he had reached the police station, this appellant had already got his statements recorded. P.W. 14, further, states that he seized the blood-stained motia dhoti from the person of this appellant and prepared a seizure list-(Ext. 4) in presence of these very witnesses. In his evidence, P.W. 13 does not say anything about the seizure of the blood-stained motia dhoti, although P.W. 5 says so.

Section 25 of the Evidence Act lays down that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by a person while he is in the custody of a police officer will be proved against such person unless it is made in the immediate presence of a Magistrate. P.W. 14 has admitted that he arrested this appellant at the police station. Admittedly, the statements of this appellant in station diary entry No. 136 (Ex. 2) were not recorded in the immediate presence of any Magistrate. Section 27, which is more or less a proviso to Sections 25 and 26, enables certain statements made by a person in the police custody to be proved. The condition necessary to bring this section into operation is the discovery of a fact in consequence of an information received from a person accused of any offence in the custody of a police officer. Thus, as laid down by this section, only that part of the information is admissible which leads to the discovery of a certain facts in consequence of the information received from the accused but no more. The admissibility of the information depends entirely on the exact nature of the fact discovered in pursuance of such information. If certain things are produced by an accused (as was done in the instant case), in the words of their Lordships of the Judicial Committee of the Privy Council in Pulukuri Kottaya and Ors. v. The Emperor AIR 1947 PC 67

It is fallacious to treat the ''fact discovered'' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ''I will produce a knife concealed in the roof of my house'' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ''with which I stabbed A'' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

This decision Was approved by their Lordships of the Supreme Court of India in Prabhu Vs. State of U.P., . In that case, the accused was taken into custody and interrogated by the sub-inspector of police. The appellant gave out the axe with which the murder had been committed and his blood-stained shirt and dhoti were in his house and he was prepared to produce them. Their Lordships held as follows:

These statements to which Debi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Sections 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning "of Section 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood-stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of Section 27. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood-stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood-stained axe and some bloodstained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood-stained clothes were his.

In the present case, the recovery of the blood-stained motia dhoti from the person of this appellant was not put to him in his examination u/s 342 of the Code of Criminal Procedure and, as such, can- not be used as a circumstance against him (vide Hate Singh Bhagat Singh Vs. State of Madhya Bharat, ). No evidence has been adduced by the prosecution to prove that the tangi produced by this appellant before P.W. 14 belonged to him. The production of the cut leg cannot lead to the only conclusion that this appellant had committed the murder.

The circumstances proved in the case may be highly suspicious against this appellant; but any amount of suspicion cannot take the place of evidence. Their Lordships of the Supreme Court in the case of Prabhoo v. State of Uttar Pradesh, also considered as to whether the production of the blood-stained axe and clothes were sufficient to lead to the conclusion that the appellant was the murderer and they observed as follows:

It is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood-stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the bloods stained articles had been kept in the house, the appellant might produce the blood-stained articles when interrogated by the Sub-Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left mising links, probably because the prosecution adopted the shortcut of ascribing certain statements to the appellant which were clearly inadmissible. While explaining the case of State of U.P. Vs. Deoman Upadhyaya, their Lordships observed as follows:

The circumstantial chain in that case did not depend merely on the production of the gandasa, but on other circumstances as well. The Court held in that case that the circumstantial chain was complete and the decision did not proceed merely on the production of a blood-stained weapon.

In the instant case, the circumstances taken as a whole are not inconsistent with the innocence of this appellant and only consistent with his guilt and, as such, cannot be made a basis of his conviction (vide Bhagat Ram Vs. State of Punjab, ; Raghav Prapanna Tripathi Vs. The State of Uttar Pradesh, and M.G. Agarwal Vs. State of Maharashtra, )

For the reasons stated above, it has to be held that the prosecution has not been able to prove the participation of any of the appellants in the murder of Barnabas beyond all reasonable doubt and, therefore, they are entitled to the benefit of doubt.

In the result, the reference is discharged, the appeal is allowed, the conviction and sentence of the appellants are set aside, and they are directed to be set at liberty forthwith.

P.K. Banerji, J.

I agree.