Shamla Hardeo Teli v. Emperor

1. The appellant Shamla, a resident of Mungeli, Bilaspur district, has been convicted of the murder of a small crippled boy of 5 years of age and has been sentenced to death. The child was murdered on 24th November 1939, the accused disappeared from Mungeli the same day and was found working in a rice mill in Baigarh State under the assumed name of Itwari and was arrested on 19th December. The child was a cripple, having deformed feet, and the child's mother Mt. Bija deposes that when she went every day to work in the fields she sometimes took the child with her and sometimes left him at home. On the morning in question she had considered taking the child to the fields, but Shamla, who lives close by and who was fond of the child, picked it up and petted it, and so she left the child with him. On her return at midday the child was not to be found, and Shamla on being questioned said that he had left it playing in the lane. Mt. Dasmat, a vegetable seller, deposes that about 9-30 that morning on her way to the market she saw the accused and the child together and that her attention was attracted by the fact that the accused had picked up the child which was crying and she told him to put the child down. As the child was not found by evening, a report was made to the police, and as this happened in Mungeli itself, the Sub-Inspector arrived very soon. As Shamla was the last person to be seen with the child, it was suggested that he should accompany the police to the police station, which he did, but when the party returned, there is evidence that Shamla rah away and disappeared from the village. Meanwhile enquiries has elicited the fact that Shamla had pawned a bracelet with one Sukaluram (p. W. 8) at 10 or 11 o'clock in the morning. The bracelet was seized that day and also Sukaluram's books (vide Ex. P-4 and p-6) which recorded the entry that he had bought the bracelet that day from Shamla. This bracelet has been identified as belonging to the child by its parents and also by Jugul Sonar (P.W 15) who made it.

2. The accused admits that the bracelet produced in Court is one which belonged to the deceased and he admits pawning a bracelet with Sukaluram, but he denied that the bracelet in Court is the one which he pawned. Beyond this no explanation is afforded.

3. As it was night time, a watch was kept round the house of Shamla in which his old mother alone lived. The following morning another son of hers who lived in another house was told to question her as to what she knew (she had been away all the previous day), and she admitted that the dead body was in the house. The police then entered and found the body of the child crammed between the grain bin and the wall with minor injuries to the face and head. Death has been established by the medical evidence as being due to asphyxia, and this is not disputed. According to the police the accused when he ran away first went to mauza Baijana, and on being questioned what he was doing there by Hatteram (P.W 6) and Mahengu (P.W 7) the latter of whom is a distant relative of his, stated that he had committed a murder and run away and had removed a kara from the deceased child. The learned Additional Sessions Judge has preferred not to accept their evidence as he considered it unlikely that the man would first make his confession to Hatteram who was a stranger and only afterwards to his relation Mahengu although he does consider it probable that these two persons harboured him for a day and a night and had made no attempt to inform the police when the police came to enquire about him. One would have thought that if the harbouring and the denial to the police is accepted, it would follow that the witnesses did have knowledge that he was a murderer.

4. The learned counsel for the appellant is unable to offer any explanation as to Shamla's sudden disappearance from the village and his working in a rice mill at Raigarh under an assumed name, and he selects two points in the prosecution story as accepted in the Sessions Court for attack in order to show that the evidence against him is not convincing. The first point is that the child's mother admitted that she returned home once from the field in the course of the morning and found the child playing in the lane, and we are asked to deduce from this, coupled with the fact of Mt. Dasmat's seeing of the child with the accused which must have been earlier than 9.30 as she was a vegetable seller and the market opened at 7 or 8 and it must be presumed that she would be there at opening time, that when the mother saw the child, the child must already have been abandoned by the accused. We are unable to accept the argument, which is in the nature of a forlorn hope. There is nothing in the mother's evidence to show that her statement in examination-in-chief, that she hesitated whether to take the child to the field or not, refers to her first visit to the field or to the second after she returned. The probability is that it refers to the second visit as the desire to take the child to the field would be prompted by the fact that she had found it playing in the lane and this would not be so likely to happen early in the morning, neither would an accosting by her neighbour be so likely to happen then. Even if this is not so and it were to be held that she saw the child playing in the lane after the time when Mt. Dasmat had seen the child with the accused, there is nothing whatever to show that the parting of company between the two was anything more than temporary, and in face of the overwhelming evidence against the accused, the argument has no force whatever.

5. The other contention raised on behalf of the accused relates to the kada. He relies on a statement by the purchasing goldsmith Sukluram who says, “When the kada was purchased a plus mark was made on it for its identification later on”. This, it is claimed, is inconsistent with the statement of Rahiman (P.W 10) who was a witness to the seizure and who says that when it was seized, the plus mark was put on it by him. The seizure memorandum (Ex. P-4) relates that the witnesses have made a plus sign on the kada with a big borer needle as their identification mark. The contention is that if this is the kada which was pawned by the accused, there should be two plus marks on it, and if the goldsmith had put one on it at the time of the purchase, this would have been noted in the seizure memorandum. The kada is not before us and we cannot say whether it bears one plus mark or two. We do not consider it necessary to send for the kada. There is no doubt that a kada was pawned that morning by the accused, and it would indeed be an extraordinary coincidence if the police when seizing, this kada should have taken from the goldsmith a kada which was not pawned by the accused and yet which happened to belong, to the child as is admitted. No explanation; has been given as to what kind of kada the accused pawned or how he obtained it. Also we would observe that it is most unusual for a goldsmith to mark property which is pawned with him for identification in this manner. This is generally done by tying on a piece of cloth or a piece of paper. We also note that the goldsmith refers to the same type of mark being put on at the time of purchase as was put on by the witnesses at the time of seizure, and in our opinion what has happened is that there has been a mistake either by the goldsmith in making his deposition or by the Judge in recording the evidence and that instead of “when the kada was purchased” what was said by the goldsmith or intended to be said by him was “when the kada was seized”. It is to be noted that the goldsmith does not say that he put on the mark himself which he presumably would have done if the mark had been made at the time of purchase.

6. The learned Additional Sessions Judge has based his conviction on the fact that the accused was last seen with the child, that he pawned on the morning on which the child disappeared a kada with a goldsmith and that kada has been identified as the child's and admitted to be his, that the accused absconded that night when the police were about to begin investigation and that he was found working in Raigarh State under an assumed name. These facts are, in our opinion, quite sufficient to sustain the conviction. There is also, however, an additional piece of evidence which the learned Judge has discarded and, in our opinion, wrongly discarded. We refer to the confession taken by a first class Magistrate at Raigarh in which there is a full confession of the crime. The learned Judge has stated that the confession was recorded with due regard to the provisions of Section 164 and Section 364 of the Cr PC, except in one detail which the learned Judge describes as “one little slip which had inadvertently crept in”, namely, that the statement was not signed by the accused himself. This, on the authority of the decision of their Lordships of the Privy Council in 17 Lah 629, (’36) 23 AIR 1936 PC 253 , 163 IC 881 , 63 IA 372 , 37 Cr LJ 897 , 17 Lah 629 (PC) the learned Judge considers of necessity vitiates the proceedings and renders the confession inadmissible.

7. The authority of 17 Lah 629 (’36) 23 AIR 1936 PC 253 , 163 IC 881 , 63 IA 372 , 37 Cr LJ 897 , 17 Lah 629 (PC) does not extend nearly as far as that. In that case the disregard of the provisions of sections 164 and 364 of the Cr PC, was so flagrant that their Lordships held that no question of the consideration of the curability of the admission under Section 533 of the Cr PC, arose at all. If an inadvertent omission to obtain the signature of the accused to a statement made under S. 164 were to vitiate the confession, S. 533 of the Code would be rendered entirely otiose. It is exactly for a case of the nature before us that the provisions Section 533 of the Cr PC, are enacted. The signature is not taken as a proof of the accuracy of the statement to which it is appended but in proof of the fact that the statement was actually made. In this particular case not only has the Magistrate given evidence to show that the statement was made as recorded by him, but the accused himself has admitted that he made this particular statement. That being so, there can be no possible prejudice to the accused in giving proof that the statement actually was made. In holding that the confessional statement should have been admitted, we do not wish to derogate from the structures passed in this Court in ILR (1937) Nag 268 (’37) 24 AIR 1937 Nag 220 , 168 IC 962 , ILR (1937) Nag 268 , 38 Cr LJ 642 and on subsequent occasions. We affirm the principle that no other procedure than that which has been detailed in the Code of Criminal Procedure can be followed, but we also desire to emphasize that the omission to take the accused's signature to a statement is not necessarily fatal to the admissibility of the statement in every case as the learned Judge appears to think. The judgment of their Lordships of the Privy Council in 17 Lah 629 (’36) 23 AIR 1936 PC 253 , 163 IC 881 , 63 IA 372 , 37 Cr LJ 897 , 17 Lah 629 (PC) does not abrogate Section 533 of the Cr PC, and indeed could not do so. The case throughout has disclosed evidence of such an overwhelming nature that the excessive caution of the learned Judge, possibly in respect of the extra-judicial confession and certainly in the case of the admissibility of the confession recorded under Section 164 of the Cr PC, has not affected the result.

8. On the question of sentence there can, in our judgment, be no doubt whatever. A crippled child was here murdered for the sake of the value of a silver bracelet. There are no extenuating circumstances whatsoever and we dismiss the appeal and confirm the sentence of death.

D.S/R.K

9. Appeal dismissed.