- (1.) THIS appeal and reference arise out of prosecution of Anantgir appellant on a charge under sec. 302 I. P. C.
(2.) THE appellant has been convicted under that section and sentenced to death by the learned Additional Sessions Judge of Sirohi, by judgment dated 23rd October 1952. THE appeal is by the accused, while the reference is by the learned Additional Sessions Judge for confirmation of the sentence of death. The case for the prosecution is that Modu alias Shankar (hereinafter referred to as Shankar although some witnesses have referred to him as Modu and others as Shankar) and his wife by nata marriage Mst. Likhmi lived at Ahemedabad. Shankar was employed in a textile mill. The accused who was employed in another mill at Ahemedabad and lived in the same Mohalla somehow developed intimacy with Mst. Likhmi. For about 2 years Anantgir carried on with Mst. Likhmi without the knowledge of her husband. But on one occasion Shankar saw Anantgir at his house with Mst. Likhmi and there was a quarrel but they were pacified by other persons. Thereafter, Anantgir used to meet Likhmi secretly and used to advise her to leave her husband. Sometime later, Chhagni, a sister of Likhmi, became ill at Khimel and wrote to Shankar to send Likhmi to take care of her. Shankar took three days' leave and left Ahemedabad with Likhmi by train on 17th October, 1950 at 4. 30 P. M. They got down at Rani railway station at 1 A. M. , and after resting for some time in Musafirkhana started for village Khimel which is at a distance of about two miles from the railway station. It is alleged that the accused Anantgir also travelled by the same train from Ahemedabad to Rani, lay in ambush and somewhere mid-way between Rani railway station and village Khimel pounced upon Shankar, who was a few paces behind Mst. Likhmi, pushed him on the ground and cut off his neck with a long knife. The accused told Likhmi to keep quiet and not to raise an alarm, and threatened to kill her if she did not comply. The accused then threw the corpse in a field nearby tore off the clothes of the deceased, threw them hither and thither and asked Likhmi to carry the head of the deceased to a place nearby which she did on account of fear. The accused then dug a hole and buried the head. Likhmi wanted to proceed to Khimel, but the accused did not permit her to do so and took her to Rani railway station and from there to Abu Road by train. They got down at Abu Road, and the accused washed his blood stained Dhoti. They took the next train towards Marwar Junction. Anantgir asked Likhmi to wait for him at Marwar Junction and himself got down at Rani. Anantgir took with him a Theli containing certain articles which Mst. Likhmi had brought with her for Mst. Chhagni and went to Khimel. He could not meet Chhagni but gave the Theli to one Chhoga asking him to give it to Chhagni and to convey a message that Shankar and Likhmi had gone to Ramdeora, (a place of pilgrimage ). Anantgir joined Likhmi by another train on the same night and both went to Ramdeora via Jodhpur. They stayed there for two or three days, and returned to Khimel. The accused asked Likhmi to tell her sister that she and her husband had gone to Ramdeora, and while they were returning her husband Shankar fell ill at Jodhpur and died. On reaching Khimel Likhmi told her sister Chhagni as she had been asked by Anantgir and there was mourning. The accused left for Ahemedabad. Likhmi remained at Khimel for 3 or 4 days and then left for Ahemedabad and there informed the neighbours that her husband had died, and that she had come for taking away her belongings. On 30th October, 1950, camel sowar Nensingh P. W. , 3 of Rani Police Station, while searching for his camel noticed blood stained clothes and some bones of a human being lying about in a field. He covered the bones and the clothings with some thorns and reported at Police Station Rani, but as the place was within the jurisdiction of Bali, a report was sent to that Police Station. The Sub-Inspector of Bali reached the site on the 31st October, and a careful search led to the discovery of the lower and upper jaw of a human being with all the teeth intact, a skull and other bones of a human being. Certain clothes, namely Dhoti (M. O. 3), Baniyan (M. O. 4), half shirt (M. O. 5), Langot (M. O. 7) and Jacket (M. O. 6) were also found. Two teeth in the upper jaw had two gold pins filled in them. These two gold pins furnished a clue on which the investigation officer worked, and he doubted the story of death of Shankar at Jodhpur, and went with Mst Chhagni to Ahmedabad for interrogating Mst. Likhmi. He found Likhmi and accused Anantgir living together in the house formerly occupied by Shankar. The Sub-Inspector brought the accused to Bali where his confession was recorded. The Police challaned Anantgir under sec 302 I. P. C. The case after commitment was tried by the Additional Sessions Judge of Sirohi. The accused denied the charge and said that there was some quarrel between Shankar and Sultansingh about two months prior to the death of Shankar. Shankar had reprimanded Sultansingh for having illegal intimacy with his wife. Sultansingh denied having such relations. Thereupon, a quarrel ensued and Sultansingh belaboured Shankar. Sultansingh however made up with Shankar and paid him Rs. 60/ -. It was further alleged that Likhmi used to visit one Motisingh P. W. 9 and the accused reprimanded her and so she bore ill will towards the accused and gave evidence against him. The accused denied having illegal intimacy with Likhmi. He retracted his confession alleging that it had been given on coercion by the police. His trial however resulted in his conviction and sentence as aforesaid. It was argued by learned counsel for the appellant that it has not been established that Shankar had met his death due to violence. The main prosecution witness in this case is Mst. Likhmi P. W. 1, and the prosecution story narrated above is made out of her statement. She is not only an eye-witness to the occurrence, but she has also recognised Langot (M. O. 7), Dhoti (M. O. 3), Baniyan (M. O. 4) and two pieces of Jacket (M. O. 6) as the articles which Shankar had been wearing at the time of his death. The fact that there were two gold pins in two of the upper teeth of Shankar is also proved by Mst. Likhmi. Her evidence is therefore strongly supported by the discovery of an upper jaw of a human being with 2 gold pins in the upper teeth and the clothing worn by the deceased near the site of occurrence between the Railway Station Rani and village Khimel. Chhagani P. W. 2 also stated that the deceased had two gold pins on two of his teeth. M. K. Pathak, Spinning Master of G. H. Mills at Ahemedabad said that the deceased Shankar was employed in the Spinning Department of that Mill. He had taken three days' leave from 17th October, and thereafter did not return. The deceased Shankar had two gold pins in two of his upper teeth. Ismail, an employee of the G. H. Mills, under whom Shankar worked, also gives the same statement. Chhogla (P. W. 14), a resident of Khimel, identified the Jacket (M. O. 6) as the one which he saw Shankar wearing about a year before the occurrence when the witness had gone in search of employment to Ahemedabad. Learned counsel for the appellant contended that the evidence of Likhmi was not reliable as she was in all probability an accomplice before the deed, and at any rate was an accessory after the event. There, is no evidence whatsoever not even a suggestion that Mst. Likhmi knew or connived at the murder of her husband. Even in the confession made by the accused before the Magistrate, there is no suggestion that he had disclosed his intention of murdering Shankar to Mst. Likhmi or that she in any way helped him in doing the deed. Mst. Likhmi's statement is forthright. She had only informed Anantgir of the letter she and her husband had received from Chhagani, and the fact that they would be leaving for Khimel as soon as her husband would get leave from the Mills. She also saw the accused at the railway station of Ahemedabad, but had no knowledge that he was also travelling by the same train or that he was going to meet them later and commit the murder of her husband. According to her statement when she saw the accused pouncing upon her husband she thought at first that it was a robber, but later recognised the assailant to be Anantgir. It was argued that according to her statement she did assist Anantgir in disposing of the head of the corpse, and also began to live with Anantgir and even told Chhagni on her return from Ramdeora, that her husband had died at Jodhpur, and gave the same statement to the police and therefore she was as good as an accomplice and her evidence required corroboration. In Ramaswami Goundan vs. Emperor (1) (I. L. R XXVII Mad, 271.) Sir Subrahmania Ayyar Offg. , C. J. and Bhashyam Ayyangar, J. have held that a witness was not an accomplice in the crime of murder for which the accused was charged if he was not concerned in the perpetration of the murder itself, and that assuming that after murder had been committed he assisted in removing the body to the pit, and that he could have been charged with concealment of the body under sec. 201 of the Penal Code, that was an offence perfectly independent of the murder and the witness could not rightly be held to be either a guilty associate with the accused in the crime, or liable to be indicted with him jointly. The witness was therefore not an accomplice and the rule of practice as to corroboration had no application to the case. Boddam, J. recorded his judgment of dissent, wherein he held that, even if the witness was not an accomplice, having regard to the fact that he was cognizant of the crime for a number of days without disclosing it and in the particular case he had a cause of quarrel with the accused at the time when he did disclose it, it would be most unsafe to act upon the evidence of such witness, unless it was corroborated in some material particular connecting the accused with the crime. In re Addanki Venkadu (1) (A. I. R. 1939 Mad. , 266.) another Division Bench of the Madras High Court took the same view as the majority judgment in Ramaswami Gounden (2) (A. I. R. XXVII Mad. 271.) without however referring to that case. It was held in the later case that the circumstances that the deceased met his death at the hands of the accused in the presence of his wife who was: probably in love with the latter, and that she made no attempt to prevent the commission of the crime do not, in the absence of evidence to show that she shared with the accused the intention to kill the deceased, render her an accomplice whose evidence requires corroboration, under the provisions of the Evidence Act. It was further held that though the wife of the deceased who attempted to conceal her intrigues with the accused is disbelieved in that respect, it does not necessarily follow that her evidence should be rejected on the main question of her account of the commission of the crime. Thomas, C. J. held in Jagannath vs. Emperor (3) (A. I. R. 1942 Oudh, 221) that an accomplice means a guilty associate or partner in crime, or who in some way or other, is connected with the offence in question or who makes admissions of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged he cannot be said to be an accomplice in the crime. It was held that the word "accomplice" is made at times to bear improperly a larger meaning than is permissible according to the accepted principle in law, and it is well settled that all accessories before the fact, if they participate in the preparation for the crime, are accomplices, but if their participation is limited to the knowledge that a crime is to be committed they are not accomplices. Whether a witness is or is not an accomplice depends upon the facts in each particular case considered in connection with the nature of the crime, and persons to be accomplices must participate in the commission of the same crime as the accused persons in a trial are charged. If the evidence of a witness falls short of these tests, he is not an accomplice, and his testimony must be judged on principles applicable to ordinary witnesses. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In Ismail vs. Emperor (4) (A. I. R. 1247 Lah. , 220.) it was explained that an accomplice means a person who knowingly or voluntarily cooperates with or aids or assists another in the commission of a crime. Bhandari, J. , after dealing with the expression of the view of their Lordships of the Privy Council in 1936 P. C. , 242, held that the expression was wide enough to include persons who are known to the English law as accessories after the fact. He, however, explained that an accessory after the act is one who, knowing a felony to have been committed, receives, relieves, comforts or assists the felon, and that the mere fact that one had knowledge that a crime had been committed, and that he concealed or failed to disclose such knowledge does not render him an accomplice. It was further explained that if the concealment was due to the witness's anxiety for his own safety rather than to any desire to shield the criminal, he would not be an accomplice, nor would a person who remains passively silent after obtaining knowledge of the commission of the crime be an accessory or an accomplice within the rule as to the testimony of accomplices. In a Full Bench case of Calcutta High Court in Hafijuddi vs. The Emperor (5) (XXXVIII C. W. N, 777.), it was contended that the testimony of a person who may not be an accomplice in a strict sense of the term, but a person who in any way helped in the offence for which the accused were tried, or was cognisant of it and omitted to disclose it for a time, is not a person whose testimony could justify a conviction, except where there is corroboration. Their Lordships held that so far as the statutory provisions were concerned, there was nothing in law to justify the proposition that evidence of a witness, who happens to be cognisant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case was the degree of credit to be attached to the testimony of such a witness; and that depended on all the facts and circumstances of the particular case. It may not be possible to place much reliance on the evidence coming from persons falling within the description given above, but they are not accomplices, and it leads to confusion of thought to treat them as "practically accomplices" and then apply the rule as to their credibility, instead of judging their credibility by a careful consideration of all the particular facts of the case affecting the evidence.
(3.) IN the present case, Mst. Likhmi had developed illegal intimacy with Anantgir, and had been carrying on with him secretly with the knowledge of her husband. As stated above, there is nothing to show that she was in any way cognisant of the design of Anantgir to murder her husband. There is no reason to disbelieve her statement that she became afraid of Anantgir after she had seen her husband being killed by Anantgir and she herself was threatened to be killed, if she raised an alarm. There was none else whom she could call upon for assistance at the time and therefore her action in taking the head of her husband to a place pointed out by the accused would not make her an accomplice. Her subsequent conduct in accepting Anantgir in place of her husband is also not an act which would be inconsistent with that of a woman of her standing. Having lost her husband, and having no parents, she must have easily fallen in with the overtures of Anantgir and agreed to give a false reason for the disappearance of her husband as suggested by Anantgir. When she gave her first statement to the police she was living with Anantgir. She has explained that she did not reveal the true story to the police as she was afraid of the appellant who was also present at that time. She however did not hesitate to give the true story to the police when Anantgir himself was taken in the custody of the police and perhaps when Anantgir also gave in while he and Mst. Likhmi were brought from Ahemedabad in the first week of November. Her statement thereafter has been forthright. Her previous conduct is fully explained from the circumstances in which she was placed. She had reason to avoid implicating Anantgir in the crime on account of fear and perhaps also as he was her paramour. The only discrepancy pointed out by learned counsel for the appellant in her statement is as regards the weapon used in the commission of the crime. She has said at one place that it was a long knife and at another place that it was a Chhuri. It was night time and the discrepancy cannot have much value as both the instruments are long ones with sharp edges with only a slight difference in their shape. Another minor discrepancy is about the disposal of this weapon of offence. While at one place she stated that the accused placed the Khan jar (long knife) in the box and took it away to Ahemedabad, at another place she stated that he threw away the Chhuri in the field suggesting that there were two instruments. The weapon has not been recovered and there was ample time between the commission of the crime and the arrest of the accused for its disappearance and the discrepancy if any is not material. In our opinion, the statement of Mst. Likhmi is a forthright statement as regards the incident of murder of her husband Shankar by Anantgir, and her subsequent conduct was not of such a nature as detracts from the value of her statement implicating the appellant. Her statement also finds support in various particulars by the evidence of other witnesses. Although the accused has denied having illegal intimacy with Mst. Likhmi, the fact has been fully proved. There is, in the first instance, the statement of Likhmi herself P. W. I. A further support is found from letters proved to have been scribed at the instance of the appellant. One of such letters is Ex. 4 which was received by Chhagni probably after Likhmi had left and remained unopened with her. This was taken possession of by the police according to Chhagni P. W. 2 and Chiman Chand S. I. P. P. W. 22. Amritlal P. W. 8. stated that he was an employee in one of the Mills at Ahemedabad and knew Anantgir, as he was also employed previously in the Kalyan Mills where the accused had been employed. His evidence is that he wrote Ex. P. 4 at the request of the accused. The letter contains the signature of the witness and there is no reason to doubt the testimony of this witness. Two other letters Exs. P. 6 and P. 7 were also recovered from the possession of Mst. Chhagni. Witness Motisingh P. W. 9 proves that they were in his handwriting and written at the request of the accused and that in these letters the accused gave his name as Babu. This witness also lived at Ahmedabad, close to the house of Anantgir, and there is no reason to doubt his testimony. Nothing has been brought out in his cross-examination, although later on the accused has stated that Likhmi visited this witness and had become angry when remonstrated by the accused. Ex. P. 6 is dated 15th April, 1950 Ex. P. 7 is dated 1st May, 1950,and Ex. P. 4 is dated 26th October, 1950. So far as Exs. P. 6 and P. 7 are concerned, the only point of importance in them is that certain reference is made to Bapu which is meant for Mst. Likhmi, and certain reference is to Maji, which is meant for Mst. Chhagni. Both these letters in terms show intimacy of the accused with these two sisters. Mst. Chhagni P. W. 2 proves that Bapu, and Maji were pseudo names for Mst. Likhmi and Mst. Chhagni. Ex, P. 4 is important in other respects also. It mentions that the train taken by Anantgir on departure from Khimel reached late at Ahemedabad and it asks Likhmi (reading between the lines) to leave for Ahmedabad early and it describes the pangs of separation. The evidence of Likhmi stands fully supported by these letters and pseudo names of Bapu, Maji and Babu have been mentioned in order to dispel any suspicion of their intimacy. Chiman Chand has stated that when he went to Ahmedabad to interrogate Likhmi he found the accused living with her in the Kothri where Shankar had previously been living. There is no doubt that illegal intimacy between the accused and Likhmi stands sufficiently proved, and it furnishes a motive to the crime as by that act the only thorn in the way of their carrying on could be removed. The second important fact is the discovery of the bones of a human being including the upper jaw containing two gold pins and the clothing which were subsequently identified as belonging to the deceased at a site between Rani station and village Khimel. This is amply proved by the statement of Nensingh camel sowar P. W. 3, Bijeysingh constable chowki Falna P. W. 4 and Chiman Chand Sub-Inspector Bali P. W. 22. Some evidence is also led that these articles were also noticed by other persons a few days before Nensingh discovered them. P. W. 20 Mst Dhapu, a girl of about 20 years of age, who worked as a coolie in one of the fields of Kandoi Otia, said that she saw a Dhoti, and a black Jacket and some bones, but did not make a mention of these to anybody on account of fear and later the police called her and took the statement about it. Duda P. W. 5 also made the same statement. These two witnesses are illiterate and have no idea of the time and dates and their statements are of no value. P. W. 11 Gulam Nabi proves the recovery of the bones, the skull, and the jaws and also the clothes on the 31st October, 1950. Dr. U. K. Vyas stated that he saw the bones produced before him by the police and he was of opinion that they were of a human adult of male sex. There were two gold nails fitted in the centre of both the upper central incisors. All the thirty-two teeth were present in the two jaws. He could not ascertain the cause of death. He also stated that the Dhoti, Langot, Banian and shirt produced before him were all blood stained. These articles have been stated by Likhmi to have been worn by the deceased at the time of the incident. Again there is evidence of Kastoora P. W. 13 and Chogla P. W. 14 about the visit of Anantgir to Khimel after the murder in order to inform Mst. Chhagni that Mst. Likhmi and her husband had gone to Ramdeora and to deliver the articles brought for her by Mst. Likhmi and Shankar from Ahmedabad. It seems that the accused did so in order to prepare the way for the subsequent story to be put forward that Shankar died at Jodhpur while returning from Ramdeora. ;