Bharosa Ramdayal v. Emperor

1. The appellant Bharosa has been convicted of the murder of one Mst. Gaji and has been sentenced to death. The facts, though unusual, are simple. The prosecution story is that Bharosa, who was a gardner in the employment of one Dagaji, malguzar of mauza Waldur, lived in a hut in his master's garden and had formed an illicit connection with Mt. Gaji, a widow of a lower caste than his own, she being a Pardhan and he, a Pardeshi of the United Provinces. On the night of 3rd April the woman visited his hut and suggested that she should enter permanently into his keeping and live with him. He demurred as this would result in his being out casted and he in a rage at her importunity struck her over the head with a lathi, killing her practically instantaneously. The medical evidence is to the effect that several blows with a lathi must have been delivered. The murder was committed not in the hut but at a nalla some 150 yards away, and the accused turned her out of the hut and accompanied her part of the way, when, presumably, the importunities being renewed, he lost his temper and killed her. Early on the following morning he left Waldur for Hinganghat, where his master lives, with the intention of telling his master exactly what had happened. The master was not present at his shop, but his agent Devidas (P.W 1) was, and to him the accused confessed that a woman had come to his hut at night and refused to leave and that he had struck her and killed her. Devidas then suggested that the accused ought to go to the police station and report, and this, with the concurrence of his master Dagaji who had then arrived, was done and a first information report was recorded by the Sub-Inspector Sheomangal, in the course of which a full story was detailed. As the result of statements made in the course of this narrative, namely, where the instrument with which the crime had been committed lay and where the body was to be found, the Sub-Inspector went to the village. He reached there before the accused, who had been placed in the custody of a constable, arrived, and village elders were called at the bada. When the accused arrived he was asked to show the weapon and the corpse and he did so, accompanied by the Sub-Inspector and by witnesses. A bloodstained lathi was produced from under his bed in the hut, and the body was found in the nalla where he said it would be found. In the committing Magistrate's Court the accused in his examination admitted all these facts, but he retracted them in the Court of Session, denied that he had struck the woman or killed her, denied that he had made a confession to Devidas and even denied that he had been to the police station at all or made a report to the Sub-Inspector in charge. Finally, and equally incredibly, he denied that he had made the statement which was recorded in his examination in the committal Court. He called no evidence in defence, but it was contended on his behalf that he had been implicated by one Kalkaprasad, a fellow servant of his. We may here note that Kalkapra had was called as a witness for the prosecution and although in examination-in-chief he admitted that he knew Mt. Gaji who was a day labourer under his control, he stated that he was unaware if she had any connection with the accused Bharosa, and he was not asked a single question in cross-examination which would tend to show that he himself had any immoral relations with Mt. Gaji although such immoral connection was hinted at in counsel's argument both in this Court and in the Sessions Court. Neither was any question put to him indicating any ill-feeling between himself and the accused. It is quite obvious that any imputation against Kalkaprasad was a despairing afterthought.

2. The grounds taken in appeal all relate to technical points of law. The Sessions Judge, following the law as laid down in 49 Cal 167, (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788 did not allow the whole of the first information report to be proved excluding from the proof by the Sub-Inspector who recorded it any such part as would include a confession. The earlier part of the report was allowed to be proved down to the words “used to come to do my master's work and I therefore knew her.” We reproduce the first information report as taken down in full:

I am a resident of Santara Mohalla, Allahabad. I do not know whether any of my relations in Desh (native country) are alive or not. I came to Pardesh (another country) 25 years back. I served as a guard at the shop of Seth Narsinghdas for 20 years. From over 12 months from now I have been working as a gardener on Rs. 5 per month in the garden of Dagaji at Waldhur. I live in the tin hut in his garden at Waldhur. Mt. Gaji a widow by caste Pardhanin who as the people said had two sons used to come to do my master's work and I therefore knew her. That Mt. Gaji Pardhanin came to me in the master's garden last night at 12 or 12-30 o'clock and said that she had no husband and so I should take her into my keeping. I told her that I was a Pardeshi and she a Pardhanin by caste and because of a caste diversity I could not take her as a keep and advised her to go to her own caste. Then, your honour, I explained things to her at length. She did not agree and said, ‘I have no husband and I shall live here only.’ Then I got angry and raising my bamboo stick overhead with both hands I struck with force. The lathi fell on the head of Mt. Gaji in front and she fell to the ground along with the stick. Fleshy material protruded out of her broken scalp and there has been bleeding. Immediately on falling down she died; it did not take half a minute (even). I then remained lying in my master's garden. I got up before 6 A.M in the morning and took my way to the master's shop from the village. The master, Dagaji, had gone to the station and I related the fact of Mt. Gaji's murder to the senior dewanji who was in the shop and who has accompanied me to the police station house. Then the master arrived and dewanji told this incident to him. When I struck Mt. Gaji with the lathi she was standing close to me. The lathi is a bamboo stick of my desh and up to my ear in height. Only one lathi blow killed her. When Mt. Gaji approached my not once I asked her to go away quietly. Accordingly she went a little distance outside the garden. I lay on my bed. In the meantime she came back again. Then again I said to her ‘I advised you to go away and you have come again’ and asked her to get out of the garden gate. She did not go. I took her out of the garden up to the nullah and told her to take her way across the nullah. She said she would not go. I then struck her. Mt. Gaji is lying dead in the nullah at the rear of my master's garden and the lathi is kept near the cot inside the hut in my master's garden. The hut is open. The report was read over to me; it has been taken down correctly.

3. It is contended before us that not merely the confessional part of the first information report should have been excluded but the whole of it. It is also contended that as the first information report itself could not be admitted in evidence, no statement contained in it could be used under the provisions of Section 27 of the Evidence Act, for the purpose of leading to the discovery of the bloodstained lathi or of the body. It is further urged that the whole of the accused's examination in the committing Magistrate's Court is inadmissible as the questions asked are based on the inadmissible first information report, and the examination itself is attacked intrinsically on the ground that multiple and improper questions were asked to which the accused could not give proper, answers. In respect of statements made by the accused in the bada in mauza Waldur after he had been taken there and met the Sub-Inspector, it is contended that the conduct of the Sub-Inspector was improper in asking him questions which he had asked him previously so as to obtain his statements is the presence of witnesses for the application of Section 27 of the Evidence Act. Finally it is urged that no statement under Section 27 of the Evidence Act, is admissible since that section has been superseded by the amendment in 1923 of Section 162 of the Cr PC. In short, the contention on behalf of the appellant is that there is no admissible evidence whatever to connect the accused with the crime. Taking the last point of law first, namely, that Section 27 of the Evidence Act, is now a dead letter since the amendment of Section 162 of the Cr PC in 1923, reliance is placed on two recent decisions of the Allahabad High Court and the Lahore High Court in AIR 1940 ALL 263 (’40) 27 AIR 1940 All 263 , 188 IC 562 , 41 Cr LJ 627 , 1940 ALJ 241 , ILR (1940) All 396 (FB) and AIR 1940 Lah 129 (’40) 27 AIR 1940 Lah 129 , 188 IC 498 , ILR (1940) Lah 242 , 41 Cr LJ 591 (FB) to the effect that this is the correct interpretation of the ruling of their Lordships of the Privy Council in 18 Pat 234. (’39) 26 AIR 1939 PC 47 , 180 IC 1 , 40 Cr LJ 364 , 18 Pat 234 , 66 IA 66 , ILR (1939) Kar 123 (PC) The Patna High Court, however, does not follow the interpretation which is given to this ruling by the Allahabad and Lahore High Courts: vide, 18 Pat 450. (’39) 26 AIR 1939 Pat 577 , 181 IC 1001 , 40 Cr LJ 625 , 18 Pat 450 , 20 PLT 420 The opinion of this Court has been expressed on similar lines to that of the Patna High Court: vide the Divisional Bench decision of Niyogi and Gruer JJ. in AIR 1940 Nag 66. (’40) 27 AIR 1940 Nag 66 , 185 IC 310 , 41 Cr LJ 158 The view follows a decision of the Nagpur Judicial Commissioner's Court in 24 NLR 158 (’29) 16 AIR 1929 Nag 17 , 114 IC 273 , 80 Cr LJ 258 , 24 NLR 158 (FB) which is anterior to the decision of their Lordships of the Privy Council, and the Divisional Bench has pointed out that their Lordships did not specifically decide the question but left it open. A similar decision was reached even more recently by a Divisional Bench of this Court in Cri. App. No. 121 of 1940, Cri. App. No. 121 of 1940, decided on 23rd May 1940 where the question has been discussed. One of us was a party to the decision in AIR 1940 Nag 66 (’40) 27 AIR 1940 Nag 66 , 185 IC 310 , 41 Cr LJ 158 and the other to the decision in Cri. App. No. 121 of 1940. Cri. App. No. 121 of 1940, decided on 23rd May 1940 We are therefore satisfied that the provisions of Section 27 of the Evidence Act, are still valid and are not affected by their Lordships' judgment in 18 pat 234. (’39) 26 AIR 1939 PC 47 , 180 IC 1 , 40 Cr LJ 364 , 18 Pat 234 , 66 IA 66 , ILR (1939) Kar 123 (PC)

4. For the proposition that the whole of the first information report should have been excluded from admission, reliance is placed on 59 Bom 120 (’35) 22 AIR 1935 Bom 26 , 154 IC 621 , 36 Cr LJ 539 , 59 Bom 120 where the partial exclusion in 49 Cal 167 (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788 was doubted. With the greatest respect we do not consider that the doubt there expressed was justified. The relevant words of Beaumont C.J are as follows:

But I doubt myself whether the principle on which the Calcutta High Court proceeded in that case can be justified. Section 25 of the Evidence Act, seems to be founded on the view of the Legislature that confessions made to a police officer are suspect, since they may have been induced by improper pressure. If that be the true underlying principle of S. 25, it is, to my mind, very difficult to see how any part of the confessional statement can be admitted in evidence.

5. The confessions in those cases and in the one which we are considering were made in circumstances which preclude any possibility of improper pressure, as in each case the accused person went of his own accord to the police station before any suspicion had been aroused and stated that he had killed some one, and in 49 Cal 167 (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788 that part of the confessional statement which was admitted had no connection with the actual narrative relating to the crime. Neither in the case before us can the part which has been admitted have any direct bearing on the fact of the fatal assault. So little bearing has it that it is really immaterial whether it is admitted or not, and the case against the accused would not lose any of its force by disallowing the whole of the first information report.

6. Of more serious consideration, however, is the contention that if the first information report is not admissible in evidence—and the argument of course applies to that part of it which comes within the confessional statement—then the statement cannot be used for the purpose of the discovery of the body or of the weapon under Section 27 of the Evidence Act. If this proposition is correct law, we arrive at the astonishing position that a man may kill another person in circumstances which he considers entirely justifiable and, moved either by remorse or honesty, makes a report to the nearest police station stating the exact truth and the full circumstances of what he has done, the police, however, would not be able to prove that such a statement was made or, if on investigation they found that the circumstances detailed were entirely true and made their discoveries as the result of what they had been told, and no other evidence was available, to use it. This might result in glaring miscarriages of justice. Rankin C.J has pointed out the absurdity of the situation in AIR 1932 Cal 297 (’32) 19 AIR 1932 Cal 297 , 138 IC 116 , 33 Cr LJ 546 , 59 Cal 1040 , 36 CWN 373 and considers that the situation is the result of bad drafting of the Evidence Act and that the Act should be re-drafted. The material criticism is as follows:

What was said in this case was said to the police. It was therefore not allowed to go in evidence by S. 25 and the consequence of holding that S. 27 is not a mere exception to S. 26 is this: that in a case like the present where the confession was made to the police, if the man was at liberty at the time he was speaking, what he said should not be admitted in evidence even though something was discovered as a result of it. That is the present case. It cannot be admitted in evidence because the man was not in custody, which of course is thoroughly absurd. There might be reason in saying that if a man is in custody, what he may have said cannot be admitted; but there can be none at all in saying that it is inadmissible in evidence against him because he is not in custody. Yet this is the consequence of saying that S. 27 is more than a proviso to S. 26.

7. It was suggested to Beaumont C.J in 59 Bom. 120 (’35) 22 AIR 1935 Bom 26 , 154 IC 621 , 36 Cr LJ 539 , 59 Bom 120 that “confession” in Section 25 of the Evidence Act, refers only to a confession made to a police officer in the course of an inquiry into an offence and does not cover the first information which starts the inquiry. That would be, in our opinion, an obviously desirable interpretation were it possible, since it is evident, and we consider undisputed, that the purpose of Section 25 of the Evidence Act, in the words of Garth C.J in 1 Cal 20711 at p. 215, is “to prevent confessions obtained from accused persons through any undue influence being received as evidence against them”, and in confessions made in the course of a first information report it is patent that there could have been no pressure by the police. Unfortunately, S. 25 is worded in such plain and simple language, namely, “no confession made to a police officer shall be proved as against a person accused of any offence”, as to make the salutary proviso propounded in 59 Bom 120 (’35) 22 AIR 1935 Bom 26 , 154 IC 621 , 36 Cr LJ 539 , 59 Bom 120 impossible, and until this particular section is amended, as in our opinion it should be, such confession made in a first information report must be excluded from its operation. We are not however satisfied that statements made in the course of such an inadmissible confession are excluded for the purposes of Section 27 of the Evidence Act. The matter has been adumbrated in 49 Cal 167 (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788 to which no reference was made in AIR 1932 Cal 297, (’32) 19 AIR 1932 Cal 297 , 138 IC 116 , 33 Cr LJ 546 , 59 Cal 1040 , 36 CWN 373 and the proposition that a person who makes a statement to a responsible police officer, voluntarily confessing that he has committed an act which the Penal Code regards as an offence, is submitting himself to custody within the meaning of Section 46(1) of the Cr PC, is, in our opinion, sound. In 12 Pat 241 (’33) 20 AIR 1933 Pat 149 , 142 IC 474 , 34 Cr LJ 349 , 12 Pat 241 , 14 PLT 82 (FB) a Full Bench of the Patna High Court stated:

When a person states that he had done certain acts which amount to an offence, he accuses himself of committing the offence; and if he makes the statement to a police officer, as such, he submits to the custody of the officer within the meaning of R. 46(1) of the Cr PC, and is then in the custody of a police officer within the meaning of Section 27 of the Evidence Act. This was also the opinion of Teunon and Ghosh JJ. in 49 Cal 167. (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788

8. In both those cases and in the case before us the person making the statement had no intention of not submitting himself to the police. There is a voluntary statement without any pressure by the police and indeed without any previous knowledge by them of what had been done; the arrest took place immediately after the statement, but we feel no doubt that at the time the statement was made there was a submission to custody which would bring the statement made within the ambit of Section 27 of the Evidence Act, as a statement made by a person in the custody of a police officer. The facts in AIR 1932 Cal 297 (’32) 19 AIR 1932 Cal 297 , 138 IC 116 , 33 Cr LJ 546 , 59 Cal 1040 , 36 CWN 373 were entirely different and the statements made were in the course of a police investigation shortly before the arrest of the accused and in circumstances which certainly could not connote any submission to police custody, and this we presume to be the reason why no reference was made in this case to 49 Cal 167 (’22) 9 AIR 1922 Cal 342 , 62 IC 578 , 49 Cal 167 , 22 Cr LJ 562 , 25 CWN 788 since the facts in one case could have had no application to the facts in the other. We are, then, satisfied that the statements as the result of which the police discovered the blood-stained lathi and the body are admissible.

9. Arising out of this is the conduct of the Sub-Inspector at the bada where the accused was asked to repeat his statements which he had already made to the Sub-Inspector at the police-station. In re-examination the Sub-Inspector stated that the accused had told him in the first information report that the stick was lying in the hut, and that he repeated the question as he wanted the accused to make the statement before the panches. This question was objected to by the defence counsel as being inadmissible; nevertheless use is sought to be made of it here. In principle it is of course objectionable for a Sub-Inspector who has received information from the accused and is proceeding to act on that information to get him to repeat that information in the presence of witnesses. As stated by Burn and Lakshmana Rao, JJ. in AIR 1939 Mad 15 (’39) 26 AIR 1939 Mad 15 , 180 IC 590 , 40 Cr LJ 433 at p. 17, a police officer ought to expect to be believed when he gives evidence on oath. But in the case before us the stricture is certainly not so well-deserved as it was in that case where the accused person was brought out of the lock-up and examined in the presence of witnesses and where the statement was embodied in a panchnama, and he was then apparently returned to the lock-up again, since it was quite clear that the Circle Inspector knew exactly what the accused was going to say. In the present case, it may be safely presumed that the Sub-Inspector had no doubt that the accused was going to take him to the place indicated and that the people had been called so as to depose to the recovery of whatever there was to be recovered, a perfectly legitimate proceeding since a seizure memorandum has to be signed by witnesses. It may of course also be possible that the Sub-Inspector was aware that there might be some doubt as to the admissibility of what the accused had stated at the police station as it was embodied in a confession made to a police officer, in which case, if he considered that the statement might be entirely inadmissible, he was justified in taking the statement again in circumstances where it certainly was admissible.

10. It was also urged that the statement made to the police-officer resulting in the discoveries made could not be used under Section 27 of the Evidence Act, as the discovery of the body must already have been known to numerous people. It has not been proved that anybody else had seen the body or was aware where the stick had been placed until the spot was pointed out by the accused. No evidence was led on the point, neither was this elicited in cross-examination from the prosecution witnesses. Even if other people had discovered the body or the blood-stained stick after the accused had left his village to make a report at Hinganghat, that would be entirely immaterial, and the argument could only have force if it were shown that by the time the second statement was made the police were aware from other sources that the stick and the body were actually to be found in such places. There is no evidence whatever that anyone else informed the police where these things were or that the Sub-Inspector who had certainly arrived at Waldur a short time before the accused, had been shown any object connected with the crime. Turning now to the examination of the accused the learned Sessions Judge, although he does not say so in so many words, appears to indicate that there might be some doubt as to the propriety of question 3 put to the accused in the committing Magistrate's Court. We reproduce the questions and answers seriatim and number them:

Q. 1—Prom the statement of witnesses it appears that there was illicit intimacy between Mt. Gaji Pardhanin and you and that she had been trying to live with you. What have you to say?

A.—She used to work in my garden and at cultivation. I had no illicit connection with her.

Q. 2—Then from the statement of witnesses it appears that she came to your hut on the night of the 3rd April 1940 and made an attempt for living with you, that you then turned her out and taking her to the nullah you struck her on the head with this lathi (Article A) as a result of which she died. What have you to say?

A.—Yes sir, I gave her a blow with lathi (Article A) on her head. She fell down in the nullah and died.

Q. 3—On the following day in the morning you came to Hinganghat and related all this to your master's dewanji Devidas and he brought you to the station-house where you made this report (Ex. P-1 read over to the accused) to the station-house Officer. What have you to say?

A.—I had told this fact to my master's dewanji and exactly the same thing to the station-house officer. My report which had been read over to me is true.

Q.—Then you took the station-house officer and the panches to your hut and produced this stick (Article A) from under the cot. To whom does this lathi belong?

A.—This lathi is mine. I produced it to the station-house officer.

Q. 5—After this you pointed out the spot where the corpse lay to the station-house officer and the panches. What have you to say?

A.—Yes, sir.

Q. 6—Have you to state anything else?

A.—Your honour is ma-bap.

11. We do not consider that there is any impropriety in any of the questions. The inadmissibility of the confessional part of the first information has not the complete bearing on the question which the learned counsel would ask us to hold that it has since there is the admission of Devidas, and on his statements the questions could be properly put. Question No. 2 gives the circumstances leading up to the fact that he had confessed that he had struck the woman a fatal blow and he admits that he did and that she fell down in a nullah and died. Nor can we see any objection to question No. 3 on which the learned Judge has come to no definite conclusion. It cannot he disputed that the accused did go to Hinganghat that morning, and there was evidence that he had related the circumstances to Devidas. It is also obvious that he did go to the police station, and the question is well within the proper limits of Section 342 of the Cr PC, in that it is put to give him an opportunity to explain salient points in the evidence against him, points which are likely to prove fatal unless explained, and the answer of the accused is in fact an answer to every part of the question, namely that he says that he told the fact to his master's dewanji and told exactly the same thing to the station house officer. We do not consider that anything in this examination can be said to be improper. The learned counsel in attacking the conviction on all the points of law to which we have referred omitted to consider, even if the propositions of law advanced were sound, the effect of the extra-judicial confession made to Devidas. That extra judicial confession is undoubtedly admissible. It was of course retracted in the Sessions Court, but the fact that it was made appears to us indisputable. It was a natural thing for an honest man to do, and his conduct in going to the police station accompanied by Devidas (and his conduct is of course relevant) is inexplicable on any other ground than that he had come to Hinganghat with the intention of telling his master what he had done and in his master's absence he told his representative Devidas. The subsequent discoveries fully corroborate this extra judicial confession, and on that alone the conviction could be sustained. There is also the full confession made in the committing Magistrate's Court.

12. The accused has been sentenced to death. There is no doubt from the medical evidence that he did strike more than one blow and that all the blows were delivered on the woman's head. We see no reason to disbelieve the circumstances as given by the accused, and indeed there is no evidence on the record to contradict them. Although we agree that the provocation was not sufficiently grave or sudden to take the offence outside the provisions of S. 302, I.P.C, there was nevertheless some provocation which can be urged for the passing of the lesser sentence which the law permits. A man who is willing to have casual intercourse with a woman, treating her as a prostitute, may nevertheless justifiably resent any suggestion—and in this case the suggestion amounted to importunity—that he should instal her as a permanent mistress, which would undoubtedly result in heavy caste penalties. That there had been importunity and argument is deducible from the fact that he undoubtedly escorted the woman from his hut to the place where the body was found, a distance of some 150 yards, and it is evident that he was trying to get rid of the woman who was doing her best to persuade him to instal her permanently. We do not consider that she was taken to the nalla with the express purpose of being killed in a secluded spot; the subsequent conduct of the accused negatives this. Taking these circumstances into consideration we consider that the punishment of transportation for life is more suitable. The appeal is accordingly dismissed, but the sentence of death is not confirmed and that of transportation for life is substituted for it.

13. Sentence reduced.