Fawcett, J.:— The appellant, Shivabhai, has been convicted by the Sessions Judge of Kaira of murder under section 302, Indian Penal Code, and abduction in order to murder under section 364, Indian Penal Code. He has been sentenced for the first offence to transportation for life, and for the second to seven years' rigorous imprisonment, the two sentences to run concurrently. The Judge concurred with three out of the four Assessors in convicting him. The alleged murder was of one Naran, a Patidar living in Mahommadpura, a village about one mile from the Railway station of Boriavi. He lived with his mother, Bai Lala, his wife, and two little sons, and was about twenty-five years old. The prosecution case is that, early on the morning of October 10 last, the accused Shivabhai, who is also a Patidar living in the same village, went to Naran's house and inquired whether he was ready to go. Naran said that he would shortly come, and after taking his meal went to Boriavi station. The accused was already there, and both are alleged to have travelled by the same train, which left Boriavi at about 8 a.m to Thasra station, and from there to have gone to Dabhali, a neighbouring village, where the appellant and his brothers cultivated certain lands. The appellant, with the aid of two of his brothers, is said to have murdered Naran on October 10, 1925, at a place about four fields off their lands, just outside, the limits of Dabhali. At that spot some human remains were found, which are testified to have been those of an adult male, aged between twenty-five and forty, and which the prosecution assert were those of Naran. There were marks of violence on some of the bones, and human blood was also found on a bead-necklace (part of the remains) and on the ground. Naran never returned to his village; his disappearance was notified in the Police Gazette and various other steps taken to trace him, but (apart from the finding of these remains) unsuccessfully. His mother, Bai Lala, had become suspicious owing to Naran's non-return, especially upon receipt of a post card on October 12, which she showed to various people in the village, who pronounced it not to be in Naran's handwriting. On October 20, 1925, she made a petition to the Sub-Inspector, who happened to be there on circuit, complaining about Naran's disappearance, and mentioned her suspicion against the accused Shivabhai. Inquiries were forthwith made, with the eventual result that the appellant and one of his brothers by name Bhulabhai were committed for trial on charges under sections 302 and 364, Indian Penal Code. Another brother by name Nagar, who was also implicated in the Police inquiry, is said to have absconded. Bhulabhai (who was accused No. 1) has been acquitted, while appellant (who was accused No. 2) was convicted and sentenced, as already stated.
The main contentions of the appellant's counsel are, firstly, that it is not established that Naran was murdered, and that there is no sufficient identification of the remains found near Dabhali so as to prove them to be Naran's; secondly, that the evidence as to accused No. 2 leaving Mahommadpura with Naran and both going together to Dabhali is false; and thirdly, that in any case the evidence adduced is insufficient to establish the offences alleged against the appellant, and that there is a reasonable doubt, the benefit of which should be given to him.
[After dealing in detail with various questions of fact in the evidence the learned Judge proceeded:]
In addition we have the discovery of pieces of burnt cloth in a neighbouring field. If these pieces of cloth were part of the clothes that Naran was wearing at the time of his death, then it is a piece of evidence pointing to an attempt to destroy property that might lead to the identification of the remains; and this supports the theory of a crime having been committed. The fact of their being found also in a field where the appellant admits that he and his brother used to reside occasionally and kept a fire-place for cooking and other purposes, makes it a very important piece of evidence against him. If the appellant or any of his brothers committed this murder, it is not improbable that the clothes would be destroyed not far off from where the murder was committed, and this field would be the nearest convenient place where they could be burnt. Is there, then, any evidence to support a finding that these pieces of cloth were in fact part of Naran's clothes removed after his death? Though it has not been brought out clearly in the Sessions Court judgment or in the arguments before us, I think there is such evidence. In my opinion, it is clearly proved by the evidence of the Sub-Inspector (Exhibit 49), the Head Constable (Exhibit 56), and the Punch witness (Exhibit 45), read with the Punchnama, Exhibit 47, that these burnt pieces of cloth were discovered by the Police in consequence of information given by Bhulabhai, accused No. 1, that he had burnt the clothes of Naran and would show the Police where he had done so. Thereupon he took them to this field, and pointed out the ashes, in which the pieces of cloth were found. This was on the morning of November 1, after the discovery of the remains. Accused No. 1 was then in the custody of the Police, within the meaning of sections 26 and 27 of the Indian Evidence Act, under the ruling in Queen-Empress v. Kamalia, as held by the Sessions Judge (at p. 93 of the printed record). Consequently this information that hehad burnt Naran's clothes and would show them where he had done so, is admissible in evidence under section 27, just as in Queen-Empress v. Nana(2) it was held that an accused's statement that he had buried certain property in the fields was held admissible. This information was, no doubt, not a confession of complete guilt, so far as the charge of murder was concerned, but it was a direct admission of constructive guilt, for his burning the clothes primarily implied that he had taken part in this murder; and, under section 237, Criminal Procedure Code, he could have been convicted under section 201 of the Indian Penal Code although not charged with this offence (of. Begu v. The King-Emper(3)) Accordingly, under the ruling in Queen-Empress v. Nana and similar rulings such as Queen-Empress v. Javecharam(4) and Emperor v. Haji Sher Mahomed(5), it amounts to a confession within the meaning of section 27. In my opinion it can (as slated in Ameer Ali and Wood roffe's Law of Evidence, 8th Edition, p. 295) also be treated as a confession within the meaning of section 30, Indian Evidence Act. And though it does not mention the appellant (accused No. 2) and says that accused No. 1 alone burnt the clothes, still it certainly “affects” accused No. 2 from the very fact that the field where the clothes were burnt was that of accused No 2, as well as accused No. 1, that they admittedly used to reside there occasionally, and that accused No. 2 was seen in this vicinity with Naran on October 10. It may be added that according to Fulabhai, whose evidence I accept, he had told Fula that he was going to his mal land, i.e, this very field, and the neighbouring ones. The word “affect” is a very wide one, and though, no doubt, the ordinary case contemplated by section 30 is where the confessing accused dircctly implicates another accused, as well as himself, I can see no sufficient reason for holding that the section is limited to such a case, and does not also cover a case where the confession indirectly affects a co-accused. In Empress v. Rama Birapa West J. distinctly contemplates the case of a confession of the limited kind allowed by section 27 being taken into consideration against a co-accused under section 30, as is pointed out in Ameer Ali's Law of Evidence at p. 303. That the confession in question affected” accused No. 2 was recognised by that accused, who, in para. 7 of his written statement, Exhibit 68, explains the pieces of cloth as being merely rags used for lighting a fire. He adds: “The pieces of cloth may therefore have been found from the place but nothing has been proved thereby”.
I hold that accused No. 1's statement is admissible in evidence against accused No. 2 under section 30, and that it can be taken into consideration against him.
[After a further discussion of the evidence the learned Judge proceeded:]
The evidence certainly points to the appellant having deliberately decoyed Naran from Mahommadpura to the neighbourhood of Dabhali on a pretext of some tobacco business.
In connection with this latter point, the testimony of Fula as to his conversation with the deceased in the train requires consideration. He deposes that, while he was sitting with Naran between Boriavi and Anand, he said to Naran that it could not be true that he was going to Bhalej, but he must be going to some other place. Naran replied that accused No. 2 had purchased some tobacco at Thasra, and therefore he (Naran) was going to Thasra. Fula then asked why accused No. 2 was not sitting in the same compartment as Naran. Naran replied that, as accused No. 2 had to bring the tobacco without the knowledge of his partners, he and the appellant were purposely sitting separately in the train. This evidence, if admissible and believed, supports the story of accused No. 2 taking Naran away on the pretext of some tobacco business, for it indicates a desire for secrecy on the part of accused No. 2. At the time when this conversation was referred to in the examination of the witness Fula in the Magistrate's Court, an objection was raised that any statements by Naran were inadmissible. The Magistrate overruled this, holding that the transaction which resulted in the death of the deceased Naran began from the time when he left his house accompanied by the appellant, and that accordingly the statements were admissible under section 32, clause (1), of the Indian Evidence Act. Mr. Thakor for the appellant opposed this view, but did not discuss it in detail. I have, however, referred to the ruling in Autar Singh v. The Crown, which was relied upon by Mr. Chandulal. No doubt, if the view taken by the Lahore Court is accepted, these statements are entirely inadmissible. It is there laid down (p. 458) that this clause of section 32 covers only “dying declarations, that is to say statements made by a dying person as to the injuries which have brought him or her to that condition, or the circumstances under which those injuries came to be inflicted”. It is further said that: “The statement must be made by the person when he is dying from the result of the injury which caused his death, otherwise it is obviously not a dying declnration”. With all respect, this seems to me to be putting an undue restriction on the words in this clause (1), “as to any of the circumstances of the transaction which resulted in his death”. If, as in English law, the clause is confined to the case of statements made as to the cause of a person's death, then I quite agree that the above would be a proper interpretation But the Indian Legislature deliberately departed in various particulars from the corresponding English law on the subject, and I do not think that, because the clause is ordinarily intended to cover what can strictly be called a “dying declaration”, the clause is not meant to cover any other statements, in spite of the wide words I have quoted. Take, for instance, the case of a girl who is abducted by deceit and then raped. She is getting into a motor car, and tells a passing friend why she is going in it. According to the view of the Lahore Court this statement would be inadmissible under section 32, because it was made by the girl, not as a dying person and before she had actually received any injuries. But it is one made by a person “as to the circumstances of the transaction which resulted in her death”, on the supposition that after being taken away in the car she is raped and dies in consequence of her injuries. It seems to me that a Court of law is not justified in ignoring the language which the Legislature has actually used to cover such a case. The Judicial Commissioner's Court at Nagpur has in fact held that statements can be admitted, though they are not made before the deceased is injured. In Chunilal Hargovan…Applicant; v. Emperor the deceased had reported to the Police an assault on him by the accused, who belonged to the opposite faction, and next morning in the course of an altercation the accused stabbed the deceased; yet it was held that the report made by the deceased to the Police was admissible under section 32, clause (1). Similarly in Emperor v. Faiz statements as to certain ill-treatment conducing to suicide, before the suicide was committed, were held to be admissible. I, therefore, hold that the conversation between Fula and Naran is relevant and admissible in evidence. It was a conversation, in the course of which Naran made statements as to his going with accused No. 2 but travelling in the train separately from him, i.e, as to the circumstances of the transaction by which, according to the Prosecution, the appellant decoyed him from his house to a place near Dabhali where he was murdered. In accordance with that view there was a charge against the appellant under section 864, Indian Penal Code.
[In conclusion the learned Judge observed:]
There is, however, no direct testimony as to how the murder actually took place, and, before the appellant can be convicted of murder, the circumstantial evidence must be incompatible with his innocence and incapable of explanation upon any reasonable hypothesis except that of his guilt. Though the evidence raises a grave suspicion against him, yet it cannot safely be said to be established beyond reasonable doubt that the murder must have been committed by him, or by one or more of his brothers in his presence, under circumstances bringing the case under section 114, Indian Penal Code. But, on the other hand, I think that the evidence does suffice to show that the only reasonable hypothesis is that the appellant deliberately decoyed Naran to his doom, and that the offence under section 364, Indian Penal Code, of which he has been convicted, is proved against him. I would therefore allow the appeal as to the conviction under section 302, Indian Penal Code, and set aside the sentence of transportation for life, but confirm the conviction and sentence passed under section 364, Indian Penal Code.
Madgavkar, J.:— I agree.
Appeal allowed in part.
J.G.R