Tulsi Gangota vs Emperor

Courtney-Terrell, C.J.—This is the appeal of one Tulsi Gangota from his conviction and sentence to transportation for life for the murder of his brother Bisu Gangota. The matter first came before this Court as a jail appeal and having regard to the reasons given in his judgment by the Additional Sessions Judge of Bhagalpur for passing the lesser sentence of transportation for life instead of death, notice was issued to the accused to show cause why the sentence should not be enhanced to death. Save for the reasons given by the learned Additional Sessions Judge for not passing the sentence of death to which I shall refer in a moment, the judgment is beyond criticism. The learned Additional Sessions Judge reviews the evidence and I entirely agree with his conclusion that the murder has been proved against the accused beyond any possibility of doubt.

The circumstances of the murder may be shortly related. The deceased man was a person of a low order of mentality. It was contended by the accused that he suffered from epileptic fits but this assertion has been denied by the other witnesses in the case But certainly the deceased appears to have been a person of extremely unpleasing appearance. He had a young and good-looking wife and the accused is shown to have carried on an intrigue with her. The accused lived at Fulkia village. The deceased and his wife lived about eight miles away at a place called Fulkia Diara where the two brothers had a khamar and some land under cultivation and Tulsi Gangota, the accused, who normally resided with his wife at Fulkia village was in the habit from time to time of paying visits to his brother at the khamar at Fulkia Diara for the purpose of assisting him in cultivating their joint land and there carried on an intrigue with his brother''s wife. Quarrels had arisen on this account between the wife of Tulsi and the wife of Bisu and the matter had been made the subject of a panchayati inquiry with the result that sometime before this event Tulsi and Bisu and Bisu''s wife were ex-communicated by their caste-men.

On Sunday, the 10th April, Tulsi went over to the khamar at Fulkia Diara for one of his customary visits to Bisu and his wife and shortly after that Bisu was not seen again until his dead body was found. A. witness named Sheodutt Singh a few days later saw a dead body lying in a "kund" of water which "kund" does not communicate with the neighbouring river. Seeing this dead body Sheodutt Singh left the place and met Tulsi who was driving a bullock cart in the opposite direction and told him that there was a dead body in the "kund" and asked him whose dead body it was but Tulsi paid no attention. A little while afterwards Tulsi went to the khamar of two witnesses named Nemo Mandal and Kala Mandal who were castemen of his and asked them to come and identify the dead body.

These witnesses have said that on arriving with Tulsi on the bank of the "kund" they saw the dead body floating in the water, that Tulsi went out and unfastened from the feet of the body which were bound together a pot which was filled with water and a similar pot which was fastened round the neck of the dead body and having unfastened these pots and let them sink into the river he drew the dead body to the shore. It was highly decomposed and mangled by animals but sufficient of the body remained for them to identify it and for Tulsi to identify it as that of his brother. The body was left on the bank and the accused then went to the Thana and lodged a first information about finding of the body and there said that his brother suffered from epilepsy and probably wandered into the river and got drowned while bathing. The witnesses Nemo Mandal and Kala Mandal state that Tulsi also offered this theory to them at the time of the finding of the dead body, a theory which was manifestly entirely discredited by the fact that the feet were tied together and the fact that a pot was attached round the neck of the corpse. No one goes down to bathe in the river with these impediments on his body and they must have been tied to the body for the purpose of sinking it in the river. A Writer Head Constable was sent by the Sub-Inspector to make inquries, but by the time the Writer Head Constable got to the place the body had been still further devoured and nothing remained but the skeleton and a few fragments of flesh adhering to it.

The Sub-Inspector drew up a first information and examined the accused. The accused then took him to the courtyard of his own house in Fulkia village and produced a kodali which has been found by the Chemical Examiner to bear stains of human blood. He then took the Sub-Inspector to the khamar in Fulkia Diara and showed him the handle of the kodali which was also blood stained and further pulled aside some oats which were lying on the ground and there showed stains on the ground which the Sub-Inspector was able to see and which after being scraped up and sent to the Chemical Examiner were found to bear human blood. Later the accused took the Sub-Inspector to the kund and there himself walked into the water and recovered from the bottom of the kund the two pots which were seen by the two witnesses Nemo Mandal and Kala Mandal when the body was first discovered.

He further stated that the pots had been attached to the body of the deceased after he had been murdered. The woman who was the wife of the deceased Bisu had gone off to a neighbouring village named Gangarampur where the accused had a khamar and close to the house of her own relations. She was sent up with the accused but was discharged by the Magistrate.

The accused denied all knowledge of the occurrence when he was brought before the committing Magistrate. I have shortly reviewed the evidence because a prolonged investigation into it is unnecessary. The evidence to my mind is convincing and convinced the learned Additional Sessions Judge that the deceased man had been murdered and that the appellant was the man who murdered him and of the soundness of these two conclusions I think there can be no possible doubt whatever: Mr. Ray has with great energy put before us reasons for disbelieving the two witnesses Nemo Mandal and Kala Mandal and has endeavoured to show that their evidence as to the condition of the body when they found it is unreliable. He has further suggested that the circumstances are not inconsistent with a plot having been formed to fasten the guilt upon the accused with the connivance of the police.

As to the first of his contentions I have carefully read the evidence of the two witnesses and I think that his criticism is unsound and that there is no reason for disbelieving them.

As to the second contention there is no foundation whatever for it and notwithstanding the energy shown by the learned advocate the contention was really the product of, if he will forgive me saying it, inexperience in the conduct of such cases.

As to the sentence which has been passed upon the accused the learned Additional Sessions Judge has said that as the evidence was circumstantial and as there were no eye-witnesses to the crime the proper sentence was that of transportation for life rather than death. It has been repeatedly pointed out by this Court, and the learned Additional Sessions Judge has no excuse for not knowing it, that the question of the soundness or unsoundness of the evidence is a matter to be taken into consideration before the verdict. If the fact that there was no eye-witness led the learned Judge to feel that the rest of the evidence of a circumstantial character was not sufficient to convict the accused he should have said so in plain terms and he should have acquitted the accused. Curiously enough his judgment up to this point is perfectly clear and he comes to the conclusion without any expression of doubt whatever that the accused actually committed the crime and therefore it must be concluded that he was under the impression that there was some rule of law that if there be no eye-witness to the murder the accused could not be sentenced to death.

I think that this view may have been attributed to, and grown out of, the decision in the case of Emperor v. Neamatulla (1913) 14 Cri LJ 556 which came before the Calcutta High Court in the year 1913 and which was heard by Sir Lawrence Jenkins, C.J., and Mr. Justice Sharfuddin. The learned Chief Justice in delivering judgment in that case said:

The only question is what the sentence is that we should pass on the accused. The conclusion to which we come is that we cannot wholly disregard the effect that the evidence had on the whole body of the jurors; and this appears to us to be sufficient reason for not passing upon him the sentence of death. We therefore pass upon him the sentence of transportation for life.

In that case it is perfectly true that the jury had acquitted the prisoner and the case was one of reference by the Sessions Judge and in that case also there was no eye-witness of the occurrence. The learned Chief Justice however did not purport to lay down any such rule as the learned Additional Sessions Judge seems to think exists and in any case I would most respectfully differ from the view of the law which was expressed on that particular occasion and which I think was never subsequently repeated and which has no following in the Courts in this country.

The law has been laid down so far as this High Court is concerned in the case of Khudu Rajak Vs. Emperor, and has also been laid down in Madras in the case of In Re: Paramandi, . It must be remembered that circumstantial evidence may be, frequently is, more, cogent than the evidence of an eye-witness. It not infrequently happens that charges of murder are based upon the professed evidence of two or three persons who purport to say that they actually saw the murder and yet it is not at all an infrequent occurrence for the Court to disbelieve the evidence of the eye-witnesses. It is not difficult to produce false evidence of eye-witnesses. It is, on the other hand, extremely difficult to produce circumstantial evidence of a convincing character and therefore circumstantial evidence, if convincing, is more cogent than the evidence of eye-witnesses and that entirely destroys any ground for the supposed rule of law.

There is a further reason given by the learned Additional Sessions Judge for not passing the sentence of death and it is that the woman, Bisu''s wife, who was originally charged before the committing Magistrate for complicity in the murder was acquitted by the committing Magistrate. What that has to do with the matter I do not know and I cannot understand the learned Additional Sessions Judge when he attributes any weight to that fact as a reason for not passing the sentence of death. This was a case of deliberate fratricidal assassination for the basset of all motives and I can see no reason whatever for not inflicting the death penalty.

I think it is our duty accordingly to enhance the sentence of transportation for life to that of death and I would direct that Tulsi Gangota be hanged by the neck until he is dead.

Scroope, J.

I agree. In my opinion the production of the blood stained kodali and the pitchers by the accused to the police puts the case beyond any possibility of doubt and I consider that there could be no other sentence in this case than one of death.