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Emperor v. Mayadhar Pothal Accused.
Structured Summary of the Legal Opinion (Reference under Section 374 CrPC)
Factual and Procedural Background
This opinion concerns a reference under Section 374 of the Criminal Procedure Code by the Sessions Judge of Cuttack for confirmation of a death sentence imposed on Mayadhar Pothal, convicted under Section 302 of the Penal Code for the murder of an elderly woman, Pula Bewa. The murder allegedly took place on the night of 21 October 1938; the body was found on 22 October 1938 in the angan with the head thrust into the mouth of a chula and multiple incised wounds to the back of the neck and back. The lobes of the ears had been cut and ear-rings removed; robbery was posited as the motive and neighbours testified that the deceased usually wore two pairs of gold ear-rings.
There was no eyewitness to the murder. The prosecution's case rested on circumstantial evidence: (i) recoveries of suspicious articles (including ear-rings) from the accused's house following statements made by the accused to the Investigating Sub-Inspector; (ii) recovery of a katari (knife) from a neighbour's house following a statement by the accused; and (iii) marks of injury on the accused's person. The accused had been committed for trial on charges under Sections 302, 392 and 411 I.P.C., but the Sessions Judge tried only the Section 302 (murder) charge and sentenced the accused to death, leading to the present reference for confirmation.
Legal Issues Presented
- Whether a statement made by an accused person to a police officer during investigation, which is followed by the discovery of a fact, is admissible in evidence under Section 27 of the Evidence Act despite the general prohibition in Section 162 of the Criminal Procedure Code on using statements made to police.
- Whether, having been committed for trial on multiple offences (Ss. 302, 392 and 411 I.P.C.), the accused should have been tried for all offences together under Section 235 and following sections of the CrPC, or whether it was permissible to try only the murder charge separately.
- Whether the circumstantial evidence (recoveries, injuries on the accused, blood-stained items) taken singly or cumulatively sufficed to prove the accused's guilt for murder beyond reasonable doubt, as distinct from his being merely a receiver of stolen property.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1939 PC 47 | Held that Section 162 CrPC is not confined to statements by witnesses but applies equally to statements made by accused persons; the Judicial Committee abstained from deciding whether a statement followed by a discovery (Section 27 Evidence Act) is rendered inadmissible by Section 162. | The court relied on the fact that the Privy Council declined to decide the Section 27 vs Section 162 point and thus accepted the permissibility of following High Court reasoning that Section 27 statements may be admissible in the special circumstances it contemplates. |
| 55 Mad 9032 (Reilly, J.) | Adopted reasoning that reconciled Section 27 Evidence Act and Section 162 CrPC by treating Section 27 as an exception applicable in appropriate cases. | The court found it permissible to follow this line of High Court authority and to admit proof of statements by an accused to an investigating officer where they fall within Section 27. |
| 51 Mad 9673 | Referenced in the opinion as part of the reasoning reconciling Section 27 Evidence Act and Section 162 CrPC (text references Section 27 and Section 162 being given effect to). | Used as part of the body of High Court authorities supporting admission of Section 27 statements despite Section 162; the court followed that permissive approach. |
| 13 Mad 4264 | Held that possession of recently stolen property, if unexplained, is presumptive evidence against accused on charge of robbery and may be similarly admissible on charge of murder when tried together. | The court cited this authority in assessing that unexplained possession can give rise to a presumption but emphasized the prosecution must establish the graver presumption (that accused committed the murder) rather than relying on presumption alone. |
| 19 PLT 8015 | Observation that under Section 114 Evidence Act one may presume the accused was involved in both murder and robbery or at least received stolen property knowing it to be stolen (reference to Illustration (a)). | The court relied on the principle that Section 114 may permit such a presumption, but stressed that when deciding between a presumption of a graver offence and a lesser offence the prosecution must establish the graver presumption. |
| 16 PLT 7306 | Procedural guidance regarding preparation of a court map and index and elimination of objectionable material from an index to be placed before a jury. | The court directed that objectionable entries in the present index be removed and a fresh index prepared free from such material, and suggested the learned Judge refer to this authority for guidance. |
Court's Reasoning and Analysis
The court proceeded through the following analytical steps, applying statutory provisions and existing authority to the facts as found in the record:
- Admissibility of accused's statements: The court considered the interplay between Section 162 CrPC (which restricts the use of statements made to police) and Section 27 of the Evidence Act (which allows admission of so much of any information as relates distinctly to the fact thereby discovered when a statement leads to a discovery). Noting the Privy Council's decision in AIR 1939 PC 47 (which extended Section 162 to accused persons but did not decide the Section 27 question), and established High Court practice, the court held it permissible to admit proof of a statement made by an accused to an investigating officer when the statement falls strictly within the special circumstances of Section 27. The court emphasised that only "so much of the information as relates distinctly to the fact thereby discovered" should be used under Section 27.
- Identification and weight of recovered articles: The court recorded that three ear-rings were recovered as a consequence of the accused's statement and that several witnesses identified them as the deceased's. It noted a discrepancy: one witness (Bhaban Bewa) had failed to identify the ear-rings during police investigation. The court provisionally accepted the identifications for present purposes but reserved a final determination on this point for the Sessions Court in the subsequent trial on property-related charges because the Sessions Judge had limited the trial to the murder charge at the outset.
- Procedural error in single-charge trial: The court criticised the Sessions Judge for trying only the murder charge when the accused had been committed for trial on Ss. 302, 392 and 411. It held that Section 235 and succeeding sections of the CrPC allowed, and normally required, trial of all offences in one trial when they form part of the same transaction. The Sessions Judge's stated reason — that the "corpus delicti in each case is not the same" — was rejected as inapposite to the statute; the proper test is whether the acts alleged form a series constituting one transaction, particularly where the evidence to prove one offence is identical to that for another.
- Evaluation of circumstantial evidence: The court examined the circumstantial material collectively: the recoveries (ear-rings; a katari located in a neighbour's house), a sack reportedly containing a katari and a blood-stained rag found at the accused's house (with uncertainties about ownership of the sack), marks of injury on the accused (incised wound on right thumb, two incised scratch marks on left cheek, four scratch marks on right hand plus older marks), and a broken lantern. The katari itself lacked blood stains; the rag's stains could have other origins; the accused maintained the sack was not his and claimed it bore another person's name (Jagabandhu), but no enquiry was recorded and the sack was not produced to the court. The injuries could have arisen from the accused's trade as a goldsmith or other innocent causes.
- Standard of proof and inference: The court reiterated the appropriate standard: prosecution must produce circumstances that are inconsistent with any view of the accused's innocence. Although the evidence generated grave suspicion and several facts were consistent with active involvement, taken individually and collectively the materials did not conclusively demonstrate guilt of murder beyond reasonable doubt. The court drew a distinction between a presumption of involvement in robbery or reception of stolen property (which may arise under Section 114 and earlier authorities) and the need for the prosecution to establish the graver presumption of actual participation in the murder.
- Procedural directions regarding the map and index: The court found objectionable matter in the court's index (notes embodying statements as to occurrences at various points) which should not be before a jury. It directed that those entries be eliminated and a fresh index prepared for the trial, referring the learned Judge to prior authority (16 PLT 7306) for guidance.
- Conclusion on the reference: Given the insufficiency of the circumstantial evidence to prove murder beyond reasonable doubt and the procedural issues identified, the court accepted the unanimous opinion of the assessors, set aside the Sessions Judge's decision, discharged the reference for confirmation of death sentence, and acquitted the accused of the murder charge.
Holding and Implications
HOLDING: The court set aside the decision of the Sessions Judge, discharged the reference under Section 374 CrPC and acquitted the accused, Mayadhar Pothal, of the charge of murder (Section 302 IPC).
Implications:
- Direct effect on the parties: The accused is acquitted of murder. The Sessions Judge is directed to take necessary steps to proceed with a trial on the other charges (Sections 392 and 411 I.P.C.) that had been framed against him.
- Procedural guidance: The opinion emphasises that when multiple offences arise out of the same transaction the trial should normally encompass all such charges (reference to Section 235 CrPC and succeeding sections), and criticised reliance on the inapt notion of "corpus delicti" as applied by the Sessions Judge.
- Evidence-law guidance: The court accepted established High Court practice (as reflected in earlier authorities) allowing admission of statements to police under the limited compass of Section 27 Evidence Act where those statements lead to the discovery of facts; but it constrained the use to "so much of the information as relates distinctly to the fact thereby discovered." The court did not purport to lay down a new precedent but followed existing lines of authority and Privy Council guidance (which had not decided the Section 27 question contrary to that practice).
- No new broad precedent announced: The court followed prior reasoning on admissibility under Section 27 rather than creating an expansive new rule; its principal outcome here was the acquittal on the murder charge and directions for proper further trial procedure.
Order accordingly. (Varma, J. concurred.)
Rowland, J.:— This is a reference by the Sessions Judge of Cuttack under Section 374 of the Cr PC, for confirmation of the sentence of death passed by him on Mayadhar Pothal who has been convicted under Sec. 302, Penal Code, on a charge of the murder of an old woman named Pula Bewa who used to live alone in her house in Krishnaraipur. The murder is said to have been committed on the night of 21st October 1938, in the angan of the deceased. There is a chula or a raised hearth with a hole in the top. The body was found on the morning of 22nd October 1938, with the head thrust into the mouth of the chula. Death had been caused by a number of incised wounds on the back of the neck and the back. The lobes of the ears had been cut by some cutting instrument and the ear-rings removed from them. Bobbery is naturally the motive ascribed. There is evidence of several neighbours that the deceased used to wear two pairs of gold ear-rings.
2. There is no eyewitness and the case against the accused rests entirely on circumstantial evidence consisting in the recovery from his house of certain suspicious articles on a statement made by him to the Investigating Sub-Inspector; the recovery of a weapon proved to be blood-stained, from the house of his neighbour Danai or Danadar Khatua as a result of a statement made by this accused and the finding of some marks of injury on the person of the accused which suggest that he may have taken part in some sort of a struggle at about the time of the crime. As to the statement made by the accused and leading, to the recovery of the articles we have it only in a fragmentary form. P.W 12, Mayadhar Jena, one of the search witnesses, says: “The accused told the Sub-Inspector of Police, that he had got the ear-rings of the deceased.” Sub-Inspector Narayan Prasad Prija says that accused told the witness that he had got the ear-rings of the deceased bidden in his thatch. The note as to accused's statement made in the search list Ex. 5 is:
Mayadhar Pothal having produced the ear-rings from the bundles of straw of the lowest layer of the thatch of his house over the eaves four rafters from the corner beam towards his bari (garden) side to the south saying that Janardan Khatua of Krishnaraipur after killing Pula Bewa had handed them over to be kept, they were seized.
3. If it was intended to admit under Section 27 of the Evidence Act, the statement made by the accused regarding these ear-rings, the correct course was to use “so much of the information as relates distinctly to the fact thereby discovered” and no less. The question arises whether a proper reading of Section 162 of the Cr PC, prohibits the use of a statement made by an accused person to a police officer in the course of an investigation when it is made under the special circumstances provided for in Section 27 of the Evidence Act. It has recently been laid down by their Lordships of the Judicial Committee of the Privy Council in AIR 1939 PC 47,1 that S. 162 is nob confined to statements made to the police by witnesses bub applies equally be statements made by accused persons; but their Lord, ships expressly abstained from deciding the question whether a statement followed by a discovery of fact such as is contemplated by Sec. 27 is rendered inadmissible of still remains admissible on the ground that Section 27 of the Evidence Act, is a special law within the meaning of Section 1(2) of the Cr PC, and is not specifically repealed by S. 162. Undoubtedly it has long been an unquestioned practice in all the High Courts that statements made to a police officer in the circumstances provided for by S. 27, Evidence Act, have been treated as admissible in evidence notwithstanding that they may have been made to an investigating officer during the progress of an investigation and in 55 Mad 9032 Reilly, J. has adopted the line of reasoning by which in 51 Mad 9673 Section 27 of the Evidence Act, and Section 162 of the Cr PC, were both given effect to, S. 162 having effect in every case except those to which Sec. 27 applies by way of exception or proviso.
4. In the absence of a definite pronouncement of the Judicial Committee to the contrary, I think it is permissible to follow that reasoning and to admit proof of a statement made by an accused person to an investigating officer in the special circumstances provided for in Section 27 of the Evidence Act. Three ear-rings, said to be the property of the deceased, were recoverd in consequence of this statement of the accused and they have been identified as the property of the deceased by P.W 2, Surji Dibya, P.W 4, Bela Dei, P.W 5, Bhaban Bewa, the above three being neighbours of the deceased woman and P.W 6, Lakhi Das, the deceased's nephew. As against the reliability of the identification by Bhaban Bewa, it is pointed out that in the Committing Magistrate's Court she said that during the police investigation she had failed to identify the ear-rings. For the purpose of this case, I shall assume the articles to have been correctly identified as the property of Pula Bewa, but this is not to be regarded as a definite finding because that very point will be for the Sessions Court to determine in the subsequent trial of the appellant on the charges connected with the property. This reservation is necessary in consequence of the procedure followed by the Sessions Judge at the out-set of the trial.
5. The case had been committed for trial in his Court on charges under Ss. 302, 392 and 411, I.P.C It was the case of the prosecution that the murder of the deceased and the robbery were parts of one transaction and were simultaneously done and that the alleged stolen property found in the possession of the accused was property stolen in that very robbery done at the time of the murder, but the learned Judge tried the charge under Section 302 only. In the circumstances stated, there was ample authority in S. 235 and the succeeding Sections of the Cr PC for the trial of the accused, at one trial for all the offences with which he was charged. The reason given in the order sheet for not trying all the charges together is that “the corpus delicti in each case is not the same.” I do not find corpus delicti in any part of the Code of Criminal Procedure and the course of criminal trials in India is to be governed by the provisions of the Indian statute and not by a criterion derived from the law of some other country. The tesfe for applying S. 235 is to see whether the acts alleged form a series that can be regarded as one transaction and it is difficult to see how this question can be answered I in the negative when the evidence to prove the one offence is identical with that by which the other is to be established. The procedure followed in taking up one charge only has the result that we are unable to deal with the whole case, and the inconvenience of holding two trials instead of one on the same evidence will be obvious to the learned Judge. In addition to the recovery from his house of the ear-rings, there is the further statement made by the accused and recovery in consequence of it of a katari in the house of Donai. As to this statement, we have it from P.W 12, Mayadhar Jena that accused pointed out the katari in the house as having been used by Donai for the murder. The Sub-Inspector only says: “The accused took us to the house of Donai and pointed out the katati.” The Sessions Judge appears to think that the recovery of these articles directly connects the accused with the crime, he having at the trial given no explanation or a false explanation about them.
6. Now the prosecution in order to establish a charge of murder has to prove that the accused is something more than a receiver of stolen property and so much of the evidence as I have thus far set out would appear to be equally consistent with his being a murderer or a receiver; and the position is the same whether the statements by Mayadhar to the Sub-Inspector regarding the articles found are taken into consideration or are excluded. If they are excluded, there is this to be noted, that accused is a goldsmith, and experience suggests that the nearest goldsmith is a person likely to be resorted to by a thief for the disposal of stolen jewels. No doubt it has been held in 13 Mad 4264 that when persons have been tried at one trial for robbery and murder possession of recently stolen property, if unexplained, such as would be presumptive evidence against the prisoners on the charge of robbery, was similarly admissible in evidence against them on the charge of murder and in this Court in 19 PLT 8015 it is observed by Khaja Mohamad Noor, J., that one may presume under Section 114 of the Evidence Act, that the accused was either involved in the murder and robbery or at least received the stolen property knowing it to be the proceeds of the robbery. This presumption is within the terms of Sec. 114, Illustration (a); but when the question arises whether the presumption of the graver offence or of the lesser offence is to be drawn, it is for the prosecution to establish the graver presumption rather than for the graver presumption to be drawn in the absence of an explanation from the accused. So we have to see what further mate, rial there is to show that the accused was not merely a receiver of stolen property tout was himself the murderer or actively concerned in the murder. The materials relied on are first, the finding of a sack at his house which contained a katari and a blood-stained rag. The katari had no blood stains on ib. The stains on the rag may have had some obher origin and as to the sack the accused says it is not his and has said in his statement before the Magistrate that it has the name of Jagabandhu written on it. No question was asked of any witness as to whether this is so and the Sessions Judge has not made any note as to whether any such name was found on the sack. The sack itself has not been sent to this Court and we are unable to say whether it has Jagabandhu's name on ib. There seems to be room for doubt whether the sack is the proper by of the accused or not.
7. Then there are the injury marks found on the person of the accused which are consistent with his having taken part in some sort of scuffle at about the time of the alleged occurrence. The accused had an incised wound on the right thumb, two incised scratch marks on the left cheek and four scratch marks on the right hand be. Bides some older marks. It is pointed out in argument that he could have received this out in the course of his occupation as a goldsmith and the other injuries could have been caused in many ways. There is also the fact that accused's lantern was found broken. Ib was for the prosecution to show circumstances which could nob be explained on any view consistent with the innocence of the accused; and in my opinion what has been found, while sufficient to give rise to very grave suspicion, is not (whether we regard the pieces of evidence individually or collectively) sufficient conclusively to demonstrate the guilt of the accused on the charge, of murder.
8. Before leaving the case, I may refer to the map and index. The notes in the index embody statements regarding things said to have happened at the various points referred to. Such notes are not properly to be put before the jury and where the index contains such objectionable material the better course is to have a fresh index prepared with the objectionable material eliminated. In the present index the entries against P.G.H.I and J. should be substituted by entries free from objectionable matter. The learned Judge may for guidance in such matters refer to 16 PLT 7306 and the cases there cited.
9. In the result, I would accept the unanimous opinion of the assessors and set aside the decision of the learned Sessions Judge. I would discharge the reference and acquit the accused of the charge of murder.
10. The Sessions Judge will take the necessary steps for his trial on the other charges which were framed against him.
Varma, J.:— I entirely agree.
D.S/R.K
11. Order accordingly.
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