Motilal Puransao And Another v. Emperor

1. Motilal, his brother Mojilal, and Saktya, their servant, and Jhullu, Benya and Sudama were tried in the Court of the Additional Sessions Judge, Balaghat, on the charge of murdering one Ghudnya, son of Langdya Mahar of village Datta on the night of 10th February 1939 and also of robbing him of his ornaments—offences punishable respectively under Ss. 302 and 396, read with Sec. 34, I.P.C Motilal, Mojilal and Saktya were convicted of both the offences and the first two were sentenced to death subject to confirmation by this Court and also to transportation for life; Saktya was sentenced to transportation for life and five years' rigorous imprisonment which was to run concurrently, and the others were acquitted. Motilal and Mojilal have preferred a joint appeal, Criminal Appeal No. 215 of 1939, and Saktya filed a separate appeal, Criminal Appeal No. 219 of 1939. This judgment governs the disposal of both.

2. The deceased Ghudnya worked as a labourer on the field of Motilal and Mojilal. He was the only son of his father and had been married two years before his murder. He was in the habit of wearing three gold ear-rings and a pair of silver kadas on his-wrist. On Friday, 10th February 1939, he and his wife worked as usual in the field of Motilal and Mojilal and returned in the evening. He took his meals along with his father and then left his house. At midnight when his wife got up from sleep and found that Ghudnya had not returned home she-woke up her father-in-law. They made search for him in the night but in vain. The search made on the next day also proved fruitless. On Sunday, that is 12th February 1939, one Gopal brought the news that a bloodstained cloth was seen in the field of one Bhola Kumbhar. The deceased's-father and his wife went to the field and discovered the trunk of a dead body which was kept away in the recess of an embankment of Bhola Kumbhar's field. The head was missing. They forthwith reported the matter to the Mukaddam Anantsing stating that on Friday Ghudnya after taking his meals had left his house at about 10 o'clock and that he had three gold balis (ear-rings) weighing 1¼ tola worth Rs. 42-8-0 and two silver kadas weighing 7 tolas worth Eupees 3-8-0. The report was sent to the Kirnapur police station on the same day and Sikandar Khan, Sub-Inspector, arrived at the village Datta on 13th February 1939 for investigation. He found the head in the adjoining field. The clothes found on the body were seized as also a bunch of keys attached to a thread tied round his waist. As the body was in an advanced state of decomposition Dr. Ghadge, Assistant Medical Officer, Balaghat, who held the post mortem examination, was unable to pronounce any opinion as to the cause of death. On 15th February 1939, that is Wednesday, an axe known as pharsa, an iron file, a dhoti, a bandi and the handle of the axe were seized from Motilal. On the next day two shirts were seized from the accused Mojilal and a bloodstained dhoti and a shirt from Saktya. On that day Motilal led the Sub-Inspector to his house and produced three gold earrings and a pair of silver kadas which had been tied in a piece of cloth, which he had dug out from a corner of the chhapri of a dilapidated house standing in his badi. These ornaments were recognized by the deceased's wife and father as those which had been worn by the deceased when he had left his house on the fateful night. It may be useful to describe the place where the murder is alleged to have been committed. Some distance away from the village towards the north-west there lies a hillock by the side of which flows a river called Deo Nadi. Bhola Kumbhar's field where the dead body was found is to the east of the hilloek and to the north-west of the village. At the western end of the village there is a chaori along which the road passes towards the hillock. Mt. Kumharin (P.W 8) who lives close to the chaori saw in the afternoon preceding the day on which Ghudnya disappeared Motilal and Mojilal and others including Ghudnya gathered near the chaori and Jhullu, one of the accused had come to her to ask for fire presumably for smoke. In the evening of the material night she saw Jhullu, Saktya and Ghudnya, the deceased, on the road near her house. Ghudnya had a ??? in his hand. Arjun (P.W 15) who lives in the neigh, bourhood of the deceased saw Ghudnya going past his yard and at the same time heard the voice of Jhullu saying that Ghudnya had come which was the signal for Benya, Sudama and Saktya to come out of their house and go towards the west out of the village. Sakhau Marar (P.W 12) who is the servant of Anantsingh Patel had carried meals to his father in his field laying in the same direction and was returning home. He first met at some distance outside the village Motilal and Mojilal going along the fields of Kanhaiya and Bhola Kumbhar. As he proceeded further he saw Benya, Sudama and the deceased Ghudnya sitting on a log of wood near a well. Still later, in his progress back to his house, he met Jhullu and Saktya with whom he had some talk. They were going in the direction in which Benya, Sudama and Ghudnya were sitting. Later in the night Kanhaiya (P.W 13) and Laxman (P.W 14) heard voices of Motilal and Mojilal and Ghudnya. These two witnesses have their plantations in the river flowing by the hillock. The gist of their evidence is that Ghudyna in plaintive tones was imploring them to take away the ornaments but save his life as he was the only son of his father. His voice ended with the words “Oh mother” which was followed by a hush. The witnesses observed the figures of the people which were at a distance of about 300 feet.

3. The ornaments produced by Motilal were identified by the deceased's father Langdya (P.W 9) and his wife Bunda (P.W 11) as well as Nandram, goldsmith, (P.W 16), the goldsmith who had made the ornaments. Kanhaiya (P.W 13), Arjun (P.W 15) and Suratsingh, malguzar (P.W 19), testified that Ghudnya was in the habit of wearing three ear-rings and two kadas. Mojilal denied knowledge of the ornaments belonging to Ghudnya. Motilal however pleaded that they had belonged to his deceased father and that he had buried them in his house to conceal them from his brother Mojilal because he had already unjustly appropriated all the ornaments of their mother. Motilal however did not give any evidence to substantiate his plea. The articles were, sent to the Chemical Examiner and the Imperial Serologist. The Chemical Examiner detected blood on the iron axe blade and the iron file recovered from Motilal by applying benzidine test, but the presence of blood could not be confirmed by the spectroscopic method. He detected bloodstains by spectroscopic test on dhoti, bandi and the handle of the axe recovered from Motilal and two shirts recovered from Mojilal and the dhoti and shirt recovered from Saktya. The Serologist was unable to determine the origin of the bloodstains as they were disintegrated. Both Motilal and Mojilal admitted that Saktya and the other accused (acquitted) were their servants, but they denied the commission of the crime. Saktya however admitted that Motilal, Mojilal, Ghudnya and himself assembled near the hillock towards the river and that Motilal murdered Ghudnya and stripped him of his ornaments and kept them to himself. Although he admitted his presence he was cautious enough to deny that he took part in committing the murder. The assessors unanimously gave their opinion that Motilal and Mojilal were guilty of murder and robbery. In regard to Saktya one of the four assessors declared him guilty of both the offences, while the rest declared him not guilty.

4. On behalf of Motilal it is contended that the identification of the ornaments made by Langdya (P.W 9) the deceased's father and Bunda (P.W 11) the deceased's wife, was inconclusive for the reason that the ornaments were not mixed with other similar ornaments. It is true that there has been an omission to take this step but that would not make the identification inadmissible although it would detract from the weight that would otherwise be attached to that evidence. There are however circumstances to show that these ornaments were those which had been worn by Ghudnya. In the first information report, Ex. P-1, which Ghudnya's father made to the Patel there is mention of three balis and two kadas. Kanhaiya (P.W 13), Arjun(P.W 15), Nandram (P.W 16) and Suratsingh (P.W 19) affirmed that Ghudnya used to wear these ornaments. Although Nandram (P.W 16) was not able to state the distinctive marks on those ornaments he was definite that he had made those ornaments for Ghudnya. The ornaments were of a nature which are worn only by men, a fact which derives confirmation from the plea raised by Motilal that they belonged to his father. The actual weight of the ornaments and their value materially agrees with those stated by the deceased's father in his report to the Patel. No attempt was made by Motilal to substantiate his plea that the ornaments had belonged to his father and it is significant that Mojilal who must also have seen his father wearing these ornaments did not take the plea.

5. All these facts taken together and considered as a whole leave no room for doubt that these ornaments belonged to the deceased Ghudnya. Moreover, there is evidence to prove that Motilal stated to the Sub-Inspector that he would produce Ghudnya's ornaments, see Suratsingh (P.W 19) and Sikandar Khan (P.W 20), and that he led the Sub-Inspector to his house and produced the ornaments. It is strenuously contended that the statement made by Motilal that he would produce Ghudnya's ornaments is inadmissible for the reason that it was not an information which distinctly led to the discovery of the ornaments but that it was a mere statement which could not be proved in view of Section 162 of the Cr PC. It is true, as held by their Lordships of the Privy Council in AIR 1939 PC 47, (1939) 26 AIR PC 47 , 180 IC 1 , 66 IA 66 , 18 Pat 234 , ILR (1939) Kar 123 (PC) that the words of Section 162 of the Cr PC, are wide enough to exclude a confessional statement made to a police officer in the course of investigation whether a discovery is made or not. Their Lordships however left the question open whether or not such a statement would be admissible under Section 27 of the Evidence Act, which is a special law within the meaning of Section 1(2) of the Cr PC. In 55 All 463 (1933) 20 AIR All 440 , 1933 Cr C 746 , 144 IC 1021 , 55 All 463 , 34 Cr LJ 875 , 1933 ALJ 1518 it was pointed out that there is no contradiction between Section 162 of the Cr PC, and Section 27 of the Evidence Act, and that by virtue of Section 1(2) of the Cr PC, any provision of the Evidence Act which is a special law as defined by S. 4 of the Code cannot be affected by the Code of Criminal Procedure in the absence of a specific provision to the contrary made in that Code; and that there is no such specific provision modifying or altering Section 27 of the Evidence Act. The terms of Section 162 of the Cr PC, as amended by Act 18 of 1923 does not alter the provisions of Section 27 of the Evidence Act. That was the view taken by a Bench of two Judges of the late Court of Judicial Commissioner in a case reported in 24 NLR 158 (1929) 16 AIR Nag 17 , 114 IC 273 , 30 Cr LJ 258 , 24 NLE 158 (FB) where it was laid down that the provisions of Section 27 of the Evidence Act, are quite independent of Section 162 of the Cr PC, and that the amendment of that Section made in 1923 was not intended to abrogate or impair the effect of Section 27 of the Evidence Act.

6. We are in respectful agreement with this view and hold that the statement falls within the ambit of Section 27 of the Evidence Act. It is urged that when Motilal himself produced the incriminating articles and did not give any information to enable the police to discover them, any statement made by him would not be covered by Section 27 of the Evidence Act, and that in any case the statement made by him that he would point out Ghudnya's ornaments was not admissible as it was in the nature of a confession. In ILR (1937) Nag 268 (1937) 24 AIR Nag 220 , 168 IC 962 , 38 Cr LJ 642 , ILR (1937) Nag 268 at p. 273 it was pointed out that the statement that the accused had deposited two kadas be longing to the deceased in a certain place and offered to show the police the spot is admissible under Section 8 of the Evidence Act. The statement therefore is not inadmissible. The contention is moreover untenable in view of the plain terms of S. 27. The relevant words are: when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. The word used is “information”, not “statement.” The information may be conveyed by words or by conduct. If an accused person says: “come with me, I shall show certain property” and he leads the police with him, he is undoubtedly giving information which puts the police in motion, and consequently the information given by him coupled with his conduct must fall within the purview of S. 27.

7. As to the extent to which a confession involved in the information supplied by the accused can be proved, there has been no doubt some divergence of judicial opinion as will be evident by a reference to 10 Lah 283 (1929) 16 AIR Lah 344 , 115 IC 6 , 30 Cr LJ 414 , 10 Lah 283 (FB) and ILR (1937) Mad 695. In re Athappa Goundan , (1937) 24 AIR Mad 618 , 171 IC 245 , 38 Cr LJ 1027 , ILR (1937) Mad 695 , (1937) 2 MLJ 60 (FB) In 30 NLR 269 (1934) 21 AIR Nag 71 , 1934 Cr C 276 , 150 IC 623 , 35 Cr LJ 1097 , 30 NLR 269 at p. 281 it was pointed out that although the interpretation of S. 27 has now been held to allow the admissibility of such statements as “I buried the knife with which I committed the murder in such and such field,” that doctrine has never been extended to include statements concerning the source from which an article recovered was obtained. A statement such as “this is the revolver which was stolen” is admissible for the obvious reason that the statement actually leading to the recovery without an admission as to what the property is would be unintelligible. This view appears to reflect faithfully the intention of the Legislature. S. 27 contemplates the discovery of material evidence. The material discovered would have no value unless it is relevant to the fact in issue and connected in some manner with the crime under investigation. Any information given by an accused person showing the relevancy of a fact to the crime must form an integral part of the discovery of the fact itself, namely material evidence, although it may indirectly amount to a confession. Consequently the statement made by Motilal that he would point out Ghudnya's ornaments would be admissible. That would only show his knowledge of the ornaments belonging to Ghudnya but would not prove by itself his complicity in the crime of murder. Considering the evidence bearing on the identification of ornaments together with the statement made by Motilal it must be held that the ornaments were taken away from the person of Ghudnya.

8. The credibility of the evidence of Kanhaiya (P.W 13), Laxman (P.W 14) and Arjun (P.W 15) is sought to be impeached on the ground that they did not disclose their information until the Sub-Inspector enquired of them. Such conduct is by no means unusual with the villagers who persuade themselves that it would be inviting trouble on themselves to disclose their knowledge to anybody in the village. The evidence of Kumharin (P.W 8) and Sakhau, (P.W 12) clearly indicates the association of Motilal and Mojilal and Saktya with the deceased Ghudnya on the night of the murder. The iron axe blade and iron file, dhoti and bandi and the handle of the axe which were recovered from Motilal were found to be bloodstained by the Chemical Examiner. The first two articles reacted to the benzidine test, and blood on the rest of articles was detected by spectroscopic test. Two shirts, articles G-1 and G-2 recovered from Mojilal, also indicated the presence of blood when subjected to spectroscopic test by the Chemical Examiner. The evidence reviewed above clearly brings the guilt home to Motilal and Mojilal. The lower Court took into consideration under Section 30 of the Evidence Act, the confession made by Saktya against Motilal and Mojilal. There is divergence of judicial opinion whether a confession made by an accused in the dock, when examined under Section 342 of the Cr PC, can be taken into consideration under S. 30 against the other accused persons. In 27 NLR 163 (1931) 18 AIR Nag 169 , 1931 Cri C 830 , 134 IC 686 , 32 Cr LJ 1222 , 27 NLR 163 it was held that it could be so taken into consideration, but the judicial opinion on the point is not unanimous as will appear from Lah 651, (1936) 23 AIR Lah 337 , 1936 Cr C 258 , 161 IC 898 , 37 Cr LJ 508 , 16 Lah 651 , 37 PLR 806 45 All 323, (1923) 10 AIR All 322 , 76 IC 1025 , 25 Cr LJ 305 , 45 All 323 , 21 ALJ 179 54 Bom 531 (1930) 17 AIR Bom 354 , 127 IC 105 , 31 Cr LJ 1137 , 54 Bom 531 , 32 Bom LR 747 and 54 Mad 788. In re Marudamuthu Padayachi, (1931) 18 AIR Mad 820 , 134 IC 63 , 32 Cr LJ 1099 , 54 Mad 788 , 61 MLJ 358 It is unnecessary to go into this question as we are of opinion that owing to the wavering nature of the statement and the late stage at which it was given, which no doubt took the other accused by surprise, we should exercise our discretion by not taking the statement into consideration against the other accused, even if we are legally entitled to do so. Excluding Saktya's statement from consideration we find that the evidence on record fully warrants the convictions of Motilal and Mojilal. Saktya on his own admission participated in the crime. He is therefore clearly guilty along with the two others of both the offences. We affirm the convictions and sentences passed against Motilal and Mojilal and dismiss their appeal.

9. As to Saktya, he is not yet out of his teens and being a servant of Motilal and Mojilal he must have been pressed to join their masters. Although he accompanied his masters it does not appear that he took actual part in the murder; nor did he derive any benefit out of the crime. We therefore recommend his case to the Provincial Government for the exercise of clemency under Section 401 of the Cr PC.

G.N/R.K

10. Appeal dismissed.