State (Sessions Judge, Central Saurashtra Division) vs Girasia Bachubha

Baxi, J.—The Appellant has preferred this appeal against his conviction and sentence of death passed by the Sessions Judge, Central Saurashtra Division, for the offence of murder punishable u/s 302, I.P.C. The Appellant is alleged to have committed the murder of the deceased Ranmal Rava by shooting him with a gun in a field belonging to one Soma Mangla during the early night of 10-11-51.

The Appellant belongs to Navania in the Jhalawad Division and is the nephew of Ravubha who is a co-owner of the village Ridad in Central Saurashtra and lives in Radad, a village nearby. Ravubha has a co-sharer Anubha and Ranmal''s sons Ramji and Nanji were Anubha''s tenants cultivating some land jointly. Ranmal''s third son Keshu aiso cultivated other land of Anubha separately. Keshu was also a Pasaita in the village. Ranmal''s three other sens viz., Tapu, Mava and Somla were manual labourers. All the sons were separate in mess while Ranmal used to mess with Ramji.

The facts alleged by the prosecution are that the Appellant came to the vada of Ranmal, which is about a field away to the west from the village Ridad, after sunset from the direction of the adjoining vadi of Ramji Bechar. He was flashing an electric torch. Ranmal and his sons Tapu, Ramji and Nanji were stacking fodder in the vada. The Appellant had with him a gun and a thela or bag in addition to the electric torch which he was flashing. After a little chat the Appellant returned to Ramji''s vadi and a little thereafter the sons returned to their respective houses for supper while Ranmal went to his khala which is to the west of Ramji''s vadi and about two fields away from the village. Later Ranmal came home and told Ramji that the Appellant had come to the khala and had sent him to bring tea. Tea was accordingly prepared and put into a lota and Ranmal left for the khala with the lota and a brass saucer. Some time thereafter two gun shots were heard in the village and Ranmal''s sons Keshu, Tapu, Ramji and Ors. went out to ascertain the cause of the gun fire.

They first went to the vadi of Kama Jadav which is to the west of the village but were informed by Kama that the sound of gun fire had been heard from the direction of the village and therefore Keshu and Ors. went to Ranmal''s khala and on the way were met by Nanji and other villagers. Kama had also accompanied them to the khala and joined in the search for Ranmal which followed. Ranmal was not at the khala and they shouted for him but as they got no reply a search was instituted. Tapu brought a lantern from the village. They went to the vada and saw track of a pair of shoes with check soles (described in Gujarati as (sic) goinS from the vada to the khala. From the khala they picked up tracks of two pairs of prints, one left by a pair of shoes having check soles and the other by bare feet. Kesha and the rest followed the tracks which led to the field of Soma Mangla where Ranmal was found lying dead with injuries on the chest and back which had bled profusely. An electric torch and the lota were also found lying near the body. Ramji pirked up the lota and took it home. Next morning the track of the shoes was traced further on from the dead body towards the village Pipalia but was lost after proceeding for some distance as the ground became rough.

After the dead body was found, Kesha went to Radad to give information to the Police Patel but as he was at Kerala Kesha went to Kerala which he reached at about 3 a.m. and gave information to him. The Police Patel prepared a report, Ex. 20, addressed to the Sub-Inspector in charge of the Police Station, Padadhari. This report states that Kesha reported that the Appellant killed the deceased Ranmal with a gun. Kesha''and the Police Patel then went to Sarapdad where the Head Constable, Nurmahmad, in charge of the Police outpost, recorded his information, Ex. 4. The Police Patel''s report, Ex. 20, was also handed over to him. Nurmahmad then sent Exs. 4 and 20 to the Sub-Inspector in charge, Police Station at Padadhari and himself proceeded to Ridad which he reached at about 8 a.m. in the morning. He had no power to investigate and only took steps to see that the dead body and the footprints were preserved. Two jasachithis (threatening letters) were found on the morning after the murder in a deri or a small temple outside the village and two more jasachithis were found stuck in the chora of the village. Prints of shoes similar in design to those found proceeding from the khala to Soma''s field and beyond were also traced to the deri and from there to the chora. Steps were taken by Nurmahmad to preserve these prints and the jasachithis weje also evidently preserved in the position in which they were found.

Kesha''s information recorded by Nurmahmad and the Police Patel''s report were received at Padadhari sometime at about 9 a.m. by the Jamadar Dadbha, who was in charge of the Police Station as the Sub-Inspector had gone to Rajkot on duty. Dadbha entered the information in the crime register and sent a report to the First Class Magistrate, Rajkot and then proceeded to Ridad which he reached between 3 and 3-30 p.m. At Ridad he made a panchnama of the prints from the khala to the scene of offence, and of the dead body. A brass Saucer from a pocket of the waist-coat on the dead body was recovered by him and this fact was also recorded in the panchnama. The saucer has been identified by Ramji as his. He next made the panchnama of the prints going towards the deri and the Jiora and of the jasachithis found at these places and recorded statements of the persons concerned. The Sub-Inspector of Padadhari arrived at Ridad at about 10 or 11 p.m. but'' by this time Dadbha had completed the investigation. The Appellant was found absconding but was ultimately arrested in Morvi on 28-5-52. He was however being remanded to the police custody from time to time in connection with other offences and was handed over to judicial custody on 7-7-52. In the meanwhile the charge- sheet was sent to the Magistrate on 20-6-52. The Appellant made a confession before the: Magistrate on 14-8-52.

It is necessary .at this stage to mention certain events which were happening in Sau- rashtra at about this time. According to the information of the Government, a gang of dacoits under the leadership of Rajput Bhupat. Meruji was infesting Saurashtra and committing dacoities with murder, and the Government had declared a prize of Rs. 50,000/- to any one who caught Bhupat dead or alive. A public appeal (Ex. 54) was issued on 24-9-51 by the Inspector General of Police in which the photographs of Bhupat and four of his associates" were published calling for public co-operation in overcoming them and reminding them of the prize offered for apprehension of Bhupat. According to prosecution the Appellant wanted to join Bhupat''s gang but before he would be admitted to it''s membership he had to qualify himself by committing a murder. Therefore he placed the jasachithis in two public places in the village and then committed the murder.

The Appellant denied having committed the offence. He retracted the confession which he had made to the First Class Magistrate stating that it was extorted by the police by beating and inducements. Two of the jasachithis, Exs. 26 and 27, bear his signatures. He denied these signatures and denied having written the jasachithis. He also denied having visited Ridad that night. The learned Sessions Judge held that Ranmal was proved to have been murdered with a gun. He rejected the confession on the ground that the circumstances under which it was made raised a suspicion against its voluntary character. He however held that the circumstantial evidence against the Appellant was incompatible with his innocence and fully established the offence and on these findings, he convicted the Appellant.

In the appeal before us it was not disputed that Ranmal was killed'' by a gun shot. The evidence of the Doctor, Ex. 35, Shows that the deceased had four gun shot wounds, one of which had entered the chest and had made its exit at the back rupturing the left lung, heart and two ribs during the course of its passage. The wound inflicted on the chest was a circular contused wound 1/4" in circumference while the wound on the back was 14" in circumference suggesting that the deceased must have received the shot on the chest which made its exit at the back. The wound was sufficient in the ordinary course of nature to cause death. From the nature of the injuries and the highly lethal weapon, which appears to have been used, the intention of the person who caused them must be taken to cause his death and there is no doubt that he committed murder.

But the really important point in this appeal is whether it is proved that the Appellant committed the murder. Before we examine the evidence on this point we shall notice some legal objections raised by the learned Advocate for the Appellant. He pointed out that though according to the evidence of the Sub- Inspector Shivubha, Ex. 39, the investigation into the offence was completed by the Jamadar Dadbha before 11 p.m. on 11-11-51, the charge- sheet was submitted to the Magistrate on 20-6- 1952, and argued that this long delay in forwarding'' the chargesheet must be considered as fatal to the prosecution. We do not think that this argument has any force for the investigation was not, as a matter of fact, completed on 11-11-1951. The Appellant was not apprehended on that date. The allegation against him was that he had a gun and a bag with him at the time of the offence and these articles had not been traced. It was the duty of the Police to try to trace them. On 1-6-52 statements of prosecution witnesses, Ravishanker (Ex. 10) and Kalu Vaja (Ex. 18) were "recorded by Mr. Fanse, the Deputy Superintendent of Police, Rajkot Division. It cannot therefore be said, that the investigation was completed at Ridad by Dadbha. Moreover the Police Inspector, Bhagvatsinhji (Ex. 53) had actually asked for permission from the Sub-Divisional Magistrate to keep the case pending as the Appellant was absconding and had obtained what is called a summary from him. Under the circumstances we do not think that there has been an undue- delay in submitting the chargesheet.

It was next argued that the occurrence report Ex. 4 recorded by the head constable Nurmahmad at Sarapdad was not the first information report and the report of the Police Patel (Ex. 20) about the information given by Keshu at Kerala should have been treated as the first information report. This objection must be overruled. Nurmahmad, Ex. 21, the head constable at Sarapdad, says that Keshu and the Police Patel came to him and Keshu gave information which he recorded in Ex. 4 and at this time Ex. 20 was handed over to him by the Police Patel. This means that the information which Keshu gave to Nurmahmad was received first and therefore it was properly admitted as the first information report.

We shall now revert to the consideration of the evidence against the Appellant and see whether it is sufficient to establish the Appellant''s guilt. The evidence against him consists of his confession and circumstantial evidence. There is no direct evidence of any witness, who saw him firing the shot, nor is there evidence of any witness, who saw the Appellant and the deceased together either at the scene of the offence or at the khala and nothing incriminating has been found on him. The learned Sessions Judge rejected the confession because he felt doubtful about its voluntary character. The learned Special Prosecutor did not contend that the confession Should be relied on nor did he urge that the learned Judge''s doubts were not well founded. The Appellant was admittedly in police custody for a very long time. When he was first called by the Magistrate on 2-8-52 for recording his confession he denied having committed the offence. Then he forwarded an application to the Magistrate from the jail dated 4-8-52 asking to be called for the purpose of recording his statement. He was therefore called again by the Magistrate on 9-8-52. The Magistrate took all precautions to] satisfy himself that the confession was volunltary and warned him that he was not bound to make a confession and that if he made it, it would be used against him. Nevertheless his long detention in police, custody coupled with the fact that on the very first occasion when he was called by the Magistrate, he denied having committed any offence raises some doubt about the voluntary character of the confession land it was properly rejected by the learned Judge.

The remaining evidence against the Appellant is purely circumstantial evidence. In - ''Hanumant Govind v. State of Madhya Pradesh AIR 195 SC 343 (A), the Supreme Court stated in the following terms the rules to be followed when the conviction of the accused denends entirely on circumstantial evidence (p. 345):

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

We have therefore to see whether the prosecution has fully established the circumstances from which we are asked to conclude the Appellant''s guilt and whether these circumstances exclude every other hypothesis except the one which the prosecution suggests.

(His Lordship then discussed evidence and proceeded:)

The prosecution has thus established that the Appellant had left the jasachithis at deri and the chora proclaiming his intention of committing a murder; that he had visited the vada of the deceased and later visited the khala and induced the deceased to accompany him to the scene of the offence where the deceased was found shot dead. These circumstances can lead to the only conclusion that the Appellant must have committed the murder. It is not probable that the jasachithis were left'' by him while the murder was committed by some one else wearing similar shoes or vice versa. The Appellant''s guilt is thus fully established.

We may add here that the Appellant had been absconding and was not traced till 28-5-52 when he was arrested in Morvi and this circumstance strengthens the inference of guilt against him. The Appellant denies that he was absconding but has not thought it fit to say where he was at or near about this date. He is no doubt nor under any obligation to account for his movements but his failure to do so may be taken into consideration along with the other circumstances of the case. The learned Advocate for the Appellant argued that if the Appellant was really absconding the Police would have taken proceedings against him under Sections 87 and 88, Criminal Procedure Code. and the fact that these proceedings had not been taken against him shows that he was not absconding. We did not agree with the learned Advocate for the Appellant on this point. The law does not impose or place any obligation on the Police to take these proceedings.

In the result we hold that the accused is proved to have committed the murder of the deceased Ranmal with a gun as alleged by the prosecution.

On the question of sentence the learned Advocate for the Appellant argued that the Appellant did not deserve the extreme penalty of law. He was a young man and was actuated by political reasons in the sense that he had a grievance against the Government as they had launched upon the land reforms which were steadily impoverishing girasdars. Besides he must have been misguided by Bhupat and his associates. We cannot accept these arguments. The Appellant is on his own saying aged 22 though he looked very much older than that and in his confessions he described his age as 24 but apart from that he committed this murder in cold blood in order to qualify himself for committing more dacoities and murders. His motive in committing the murder was to be allowed to join a gang of dacoits with the object of helping them in spreading terror in the country. He deliberately chose this career and neither youth nor political reasons can be pleaded in extenuation of the offence. We do not see any extenuating circumstance in this case and in our view he was properly sentenced to death.

We therefore dismiss the appeal and confirm the Appellant''s conviction and sentence of death.

SHAH C.J.

I agree.