- (1.) THE respondent Jagannath Singh (hereinafter to be referred to as the accused) was challaned by the Police, Gangapur under sec. 302 of the Indian Penal Code in the court of First Magistrate, Gangapur.
(2.) THE case for the prosecution was that on the 18th of May, 1949 at about 7 A. M. the accused met Jawala Prasad near Mahant-ki-bagichi in the town off Wazirpur and he was loading his gun at that time. THE accused asked Jawala Prasad to tell Chiranji Laturia (hereinafter to be referred to as the deceased) that he should be careful in passing that way. Jawala Prasad conveyed this message to the deceased and asked him not to pass that way, but when he returned from the town and was going to prepare his food in the bagichi, he heard a sound of gunfire and immediately after Ram Kania, daughter of Raghunath Prasad reached there and told him that Pujari Baba had been shot dead by Thakur Baba, At that time Chiranji, Bhoria and Bajranga who were in the bagichi came out and saw the dead body of the deceased and found the accused going towards the police station. THE accused reached the police station and informed the police authorities there that he had killed Chiranji Laturia and that he should be put behind the bars. THE police arrested him end seized a loaded gun which he had with him at that time, from his possession and after necessary investigation challaned him under sed. 302 IPC in the court of First Magistrate, Gangapur who committed the accused to take his trial under sec. 302 of the Indian Penal Code before the Additional Sessions Judgem Gangapur. The accused did not make any arrangement for his representation and no amicus curiae was appointed by the lower court on the ground that he had menas to arrange for his defence. Fifteen witness were examined by the prosecution, but none of them was a direct witness of the alleged murder. There was only circumstantial evidence upon which the prosecution has relied. The accused denied the charge and the learned Additional Sessions Judge came to the conclusion that it could not be said without doubt that the accused was guilty of alleged murder. He consequently, acquitted the accused. The State had come in appeal against this order of acquittal under sec. 417 of the Criminal Procedure Code. It was argued by Mr. C. B. Bhargava on behalf of the appellant - State - that the learned lower court did not take into account the evidence of a very important witness for the prosecution, namely, Lachoo P. W. 4,and that the evidence of this witness coupled with other evidence and the confession of the accused before some of the prosecution witnesses, left no room for doubt that the accused was guilty of murdering Chiranji Laturia. 6. On behalf of the accused-respondent, it was argued by Mr. Gaffar Ali that in this case the prosecution relied simply on circumstantial evidence and that no conviction could be founded on circumstantial evidence alone unless it cannot be explained on any hypothesis other than that of the guilt of the accused. It was argued that even taking the evidence of Lachoo at its face value, it did not show that it was the accused who killed the deceased by firing his gun. All that it shows is that after the report of the gun was heard, the deceased was found lying dead and the accused was found standing somewhere near the corpse with his gun. This fact did not prove beyond the shadow of reasonable doubt that it was the accused who fired the gun at the deceased and murdered him. A number of authorities on this point were referred to. It was also argued that there was nothing to show that the gun shots extracted from the body of the deceased on post mortem examination were similar to the gun shots with which the gun of the accused was found loaded or the gun shots which were found in his possession. The possibility is not excluded that so me other man might have shot the de-ceased dead. It was further argued that the evidence of Loachoo was not such as could be believed and the evidence of other witnesses also could not carry conviction as it was very unnatural and has been rightly disbelieved by the lower court. As regards the alleged confession of the accused before some prosecution witnesses and the police, it was argued that it was not admissible in evidence and was not rightly acted upon by the lower court. Finally reliance was placed upon a ruling of the Supreme Court in the case of Surajpal Singh and others vs. The State, (l) and it was argued that once the accused has been acquitted, there should be compelling reasons to come to a conclusion different from that of the trial court. On the day the arguments were concluded, it was found that the gunshots and the gun taken from the possession of the accused as well as also the gunshots extracted from the body of the deceased at the time of post mortem examination were not sent to this Court by the trial court. They were therefore, sent for. On a mere look at the shots extracted from the body of the deceased and those recovered from the possession of the accused at the time of his arrest, it cannot be said that the gunshots extracted from the dead body are similar to the gunshots recovered from the accused. I have considered the arguments of learned counsel for both the sides and have also carefully examined the record. So far as the question of murder of Chiranji Laturia is concerned there can not be the least doubt that he met his death by violence and did not die a natural death. From the evidence of Dr. T. N. Bhargava, P. W. 8 who carried the post mortem examination of the dead body, it appeared that following external injuries were found on the body of the deceased: - (1) Punctured wounded each 1/4" x 1/4" on the right side of the chest above the 7th rib. (2) Two punctured wounds each 1/4" x 1/4" on the right side of abdomen. (3) Two bruises each 1/4" x 1/4" on the right side of the abdomen (4) Four bruises each 1/3" x 1/4" on the middle of the abdomen. The following internal injuries were also found as a result of the examination: - (1) Comminuted fracture on the right side on the 7th rib. (2) Blood had accumulated in the chest. (3) Blood had also accumulated in the muscles of the abdomen. It had also congealed on the membrane below the abdomen. The blood had also accumulated on the right side of the abdomen near the liver. There were four wounds 1/4" x 1/4" each in the liver which had been torn as under from inside. The Doctor opined that the death had taken place within six to twelve hours before the post mortem examination and was the result of haemorrhage and shock due to the above injuries. He also opined that the injuries were caused by gunshots. He further opined that the injuries found on the body of the deceased were sufficient in the ordinary course of nature for the death of the deceased. At the time of post mortem examination, three gunshots were extracted from the body of the deceased. The above evidence shows beyond doubt that the death was not a natural death but was the result of firing with a gun. The next question which is a more important and difficult question is as to who was responsible for the firing of the gun at the deceased. For this there is no direct evidence. The evidence is entirely circumstantial. The accused can be convicted only if it has been proved beyond doubt that it was he who fired the gun at the deceased which resulted in his death. The following evidence has been produced by the prosecution to show that it was the accused who was responsible for the murder of the deceased by firing a gun at him. (1) The evidence of Jawali (Jawala Prasad) P. W. 15 showing that in the morning sometime before the murder, the accused met the witness loading his gun near Bawari and there he asked the witness to warn the deceased that the accused had loaded the gun and that the deceased should be careful in passing by the Bawari. (2) The evidence of Jawali (Jawala Prasad) that he had conveyed the message to the deceased and had warned him not to pass by the Bawari, but even then the deceased went towards the Bawari. (3) The evidence of the said witness Jawala Prasad that the deceased met the accused when he went after warning by the witnesses and the accused told the deceased at that time that he should free himself after doing the Sewa Puja of the Thakurji, (4) The evidence of Raghunath Prasad, P. W. 8, Bhonria alias Bhonrilal P. W. 16, and Bhajan Lal P. W. 13 and Jawala Prasad P. W. 15 showing that the four years old daughter Ram Kania of Raghunath Prasad, said at the Bagichi immediately after the report of gun was heard that Thakur Baba (accused) had killed Pujari Baba (deceased) with a gun (5) The evidence of Lachoo P. W. 4 that he heard a gunfire at about 1 P. M. , near the Bawari and when he turned his face behind, he found the deceased lying on the ground and the accused standing at a distance of eight or ten paces from the deceased. (6) The evidence of Raghunath Prasad P. W. 8, Bhonrilal, P. W. 10, Bhajan Lal P. W. 13 and Jawala Prasad P. W. 15 that after the report of gun had been heard and Ram Kania had conveyed the information about the death of the deceased, they all found the dead body of the deceased lying on the ground near the Bawari and the accused standing near the dead body with a gun and going towards the police station. (7) The evidence of Suraj Lal P. W. 3 and Ram Narain P. W. 5 regarding the confession of the accused that he had killed the deceased. I take up first the evidence of the confession. It is in the evidence of Ram Dass P. W. 1 that he made the police report Ex. P. 1 immediately after the occurrence. In this report he had stated that the accused had killed the deceased with his gun. From his evidence it also comes out that after he had signed the report. He came to know that the accused was going towards the police station and immediately after, the accused reached there with his gun. From the evidence of Suraj Lal and Ram Narain it comes out that the accused made the alleged confession when he had reached the police station. Thus it is clear from the evidence that the alleged confession was made after the accused Jagannath Singh had been accused of the offence of murder by Ram Das. Both Ram Das and Suraj Lal were police employees and according to sec. 25 of the Evidence Act, no confession made to a police officer by the person accused of an office, is admissible in evidence. The evidence of Ram Narain and Suraj Lal, therefore, so far it relates to the alleged confession was inadmissible. The lower court has rejected the story of alleged confession but it has observed that Jagannath Singh was not accused of an offence at the time of the alleged confession and, therefore, the said statement did not amount to confession. As has been shown above, he was accused of an offence of murder at the time he is alleged to have made confession before these two police employees and, therefore, apart from the question of credibility of these two witnesses the confession was inadmissible. As regards the alleged confession before Bhonrilal and Bhajan Lal, the learned lower court has considered the evidence of these two witnesses and has come to a finding that their statements about the alleged confession could not be relied upon. I also find that Bhonrilal says that when he found the accused on the spot immediately after the occurrence he asked him why he had killed the deceased and he replied that he had killed his enemy and that the witness should mind his work. Bhajan Lal who is also said to have accompanied Bhonria does not say that the accused said that he had killed his enemy when he was asked why he had killed the deceased, but he says that he only said "go, mind your business". Thus there is no corroboration of that portion of Bhonrilal's evidence where he says that the accused told him that he had killed his enemy. Again, Raghunath Prasad P. W. 8 says that when he went inside the Baghichi after having been informed by Ram Kania that the accused had killed the deceased, he found Bhonrilal, Bhajanlal and Jawali there and on being asked as to who had killed the deceased, both Jawali and Bhonrilal replied that they had come out on hearing the report of the gun and when they went outside they saw the accused standing near the deceased. The information about this was passed by them to Ram Das. This witness does not says that Bhonrilal or Bhajanlal told him that the accused had killed the deceased when he asked them who had killed the deceased. Had the deceased made the confession alleged by these witnesses they would certainly have told Raghunath Prasad, when he made the inquiry; that the accused himself had told them that he had killed his enemy. This alleged confession is nowhere recorded and on the strength of the oral evidence discussed above it is very difficult to hold that any confession was made by the accused before the last named two witnesses, about his having killed the deceased. It was held by a Division Bench of Patna High Court in the case of Emperor vs. Mst. Jagia (2), that in dealing with any extra judicial confession, particularly when it is nowhere recorded, the court must be very careful and should not act upon it unless it is proved by the evidence of most reliable character. As has been shown, the oral evidence of this alleged confession is of the most unsatisfactory character and, therefore, the confession can be relied upon for the conviction of the accused. Now I take up of the evidence under head 1 to 3 above. Jawala Prasad P. W. 15 has stated that when he went in the morning of the fatal day near the bagichi he found of accused loading his gun and he told him that he should warn the deceased that the accused had loaded his gun and that the deceased should not pass that way. The witness then proceeds to say that thereafter, he informed the deceased about what the accused had told him and also that he had himself seen the accused loading his gun and that the deceased should not go towards the bawari. Even then according to this witness, the deceased went towards the bawari and met the accused who told the deceased that he should free himself from the sewa puja of Thakurji. This evidence appears to be most improbable. Unless the accused was off his sonses it could not be expected that he would defeat his object of killing the deceased by informing him that he had loaded his gun and that he should be careful in passing that way towards the Bawari. It is still more improbable that after hearing from Jawala Prasad that the accused was likely to do violence to him and that the deceased should not go towards the Bawari, the deceased went there immediately after. It is also very improbable that even though the deceased met the accused immediately after his warning yet instead of killing him then and there he asked him to go and free himself from the Sewa puja of Thakurji. It could not be expected that the deceased would take the risk of meeting the accused again, after he had been informed of the inclination of the accused by Jawala Prasad and after he had himself found the demeanour of the accused that he was bent upon doing violence to him. It appears very strange that even after the warnings which the deceased had received, he should go a second time towards the Bawari and get himself shot by the accused. Unless both the accused and deceased are taken to be men who were not in their senses on that particular day, the evidence of Jawala Prasad in the matter can not be believed. I am therefore, not at all inclined to place any faith in the evidence of Jawala Prasad in so far as it relates to the talk with the deceased in the early morning on the fatal day, the talk between himself and the deceased and then the talk between the deceased and the accused.
(3.) TAKING up the evidence under the fourth head, that is, the information passed on by Ram Kania, I find that there is a good deal of discrepancy between the statements of the various witnesses. I may mention here that the accused had no proper legal assistance in the lower court and was altogether unrepresented. There was no proper cross-examination of the prosecution witnesses on behalf of the accused, but the evidence, even as it stands, discloses serious discrepancy and was, therefore, rightly rejected by the lower court. Bhonrilal P. W. 10 says that after he heard the report of the gun, Ram Kania came to the Bagichi and said that Pujari Baba ("deceased) had been killed by Thakur Baba (accused ). He further says, that he did not hear anything whatsoever,excepting the above from Ram Kania. Bhajanlal, P. W. 13, however, who is also said to have been present with Bhonrilal at the Bagichi says that Ram Kania said that Thakur Baba had killed Pujari Baba, but adds that when she was asked where the deceased was killed, she said that he was killed under a Tamarind tree. Jawala Prasad P. W. 15 says that when Ram Kania came to the Bagichi, he asked her why she was weeping, but she said nothing to him and said to her father's sister who was at Sewa in the temple that Thakur Baba had killed Pujari Baba. He states that Bhonrilal and Bhajanlal were present at that time. The evidence of these witness is belied by the evidence of Raghunath Prasad P. W. 8 who says that Ram Kania did not say that the deceased was killed by the accused but that it was Gulkandi who said so. Ram Kania was produced before the trial court but she did not state that she had seen the accused shooting the deceased nor that she gave any information about the death of the deceased to Gulkandi or any of the prosecution witnesses. Gulkandi too was not examined. The evidence which has been produced is by no means of the best type on this point and is very discrepant. It cannot therefore, be acted upon. As regards the evidence under the fifth head, it was very strenuously argued that the learned trial court has not at all considered the evidence of Lachoo which stood unchallenged and that this was a serious error on the part of the trial court. It was argued that the evidence of Lachoo fully proved, in conjunction with other evidence, that the deceased was killed by the accused. I have read this evidence with particular care. The evidence of this witness does not show that he actually saw the accused firing at the deceased. It only shows that after the report of the gun was heard, he turned back and found the deceased lying on the ground and the accused standing eight or ten paces away blowing inside his gun. The gun was however, loaded when it was seized on the arrest of the accused immediately after the occurrence. If the statement of this witness were true, the gun ought to have been empty. He nowhere says that the gun was reloaded in his presence. None of the witnesses excepting Bhajanlal says that the accused reloaded the gun, but this evidence is not supported by the evidence of Bhonrilal who went alone with Bhajanlal on the spot after hearing the report of the gun. It appeared that it struck the prosecution, after the evidence of Bhonrilal had been recorded, that there should be some explanation coming forward for the gun being found loaded and that is probably why in the evidence of Bhajanlal alone the story of the reloading of the gun by the accused finds place. It is very improbable that the accused having committed such a heinous offence should stay on the spot and refill his gun instead of running away from the spot immediately after his object had been carried out. There was hardly any necessity for the accused to reload the gun on the spot after he had carried out his purpose by discharging it at the deceased and expose himself to the risk of being caught. There is no evidence to show that he was threatened by any body which necessitated the reloading of the gun. I am, therefore not prepared to believe the evidence of Lachoo, so far as it relates to blowing inside the gun. The only thing that remains in the evidence of Lachoo is, therefore, that he heard the report of the gun and immediately after, on turning back, he found the deceased lying on the ground and the accused standing at a little distance from him with a gun. As will be shown presently this circumstance alone is not sufficient to bring the guilt home to the accused under the circumstances of the case. Taking up the sixth class of evidence i. e. the evidence of Raghunath Prasad P. W. 8, Bhonrilal P. W. 10, Bhajanlal P. W. 13 and Jawala Prasad P. W. 15, it has already been discussed that the evidence about the reloading of gun is not credible. Bhonrilal has said that he found the accused cleaning the gun with an iron bar which also is not very natural because the first instinct of the accused, after the firing of the gun at the deceased, should have been to run away from the place of occurrence rather than to loiter there and clean the gun when it was broad day light and persons were coming from different directions on the scene. As regards their seeing the dead body on the spot and the accused standing there with the gun also, I may say that the evidence of Bhonrilal, Bhajanlal, Jawala Prasad and Raghunath Prasad is not quite convincing. Bhonrilal says that immediately after he had been informed by the girl Ram Kania of the death of the deceased, he went out and found the dead body of Charinji Laturia on the ground and the accused standing there with his gun. Bhajanlal also says that he also went out on hearing the report of the gun along with Bhonrilal and found that the body of the deceased was lying on the ground and the accused was standing with a gun. Jawala Prasad says that he also came out after he received information from Ram Kania and found the body of the deceased under a tamarind tree and the accused going with his gun towards the police station. All these three witnesses say that they came out immediately after the report of the gun and getting information from Ram Kania. If the statements of these witnesses were to be believed,the accused left the spot immediately after the believed, murder and proceeded towards the police station. Bhajan Lal has however, stated that Raghunath Prasad P,w,8 reached the place of occurrence half on hour after the murder. Raghunathprasad's statement also shows that he reached there more than fifteen minutes after the occurrence and he found that Jagannath Singh accused was standing near the dead body, Raghunath Prasad could not find the accused on the accused if the latter had already stated to. wards the police station immediately after the occurrence as has been deposed by the other three witnesses. According to him he found Jawla Prasad. Bhonrilal and Bhajanlal in the Bagichi when he came out to verify what had been conveyed to him through his daughter. He also states that he found Bhonrilal and Bhajanlal smoking and Jawala Prasad preparing vegetable. If it were a fact that Bhonrilal, Bhanjanlal and Jawalaprasad had seen the dead body and also Jagannath Singh with a gun standing nearby it was very unnatural that these three persons should be so calm and composed as to busy themselves with smoking and preparing vegetable. It is in the evidence of Raghunath Prasad that these persons were the special men of the deceased. Their first instance aught to have been to go and report the matter to the police and look after the dead body rather than come back to the Bagichi and engage themselves in the routine work like smoking and preparing vegetable. It will not be surprising if the story given out by these three persons i. e. , Bhonri Lal, Bhajanlal and Jawala Prasad about their finding the accused on the spot near the dead body immediately after the report of the gun was heard, is not true and as a matter of fact the received the information about the death of the deceased from Raghunath Prasad, The evidence of Raghunath Prasad also that though he reached the place of occurrence more than fifteen minutes after the event; he found the accused going towards the police station with a gun, is not believable because it could not be expected that the accused should stay on the scene of occurrence for such a long time after the event. The evidence of these four witnesses cannot be taken without a pinch of salt and I am not prepared to place any faith in it. On a careful consideration of the evidence, I find that the best that can be said in favour of the prosecution is that Lachoo saw the accused at a little distance from the dead body with a gun soon after he had head the report of the gun and that the accused did not come out with any explanation as to how the deceased met his death, These circumstances are however, not sufficient for the conviction of the accused under the circumstances of the case. It has been said above that it is not intelligible why the gun seized from the accused soon after the occurrence should have been found loaded if it had really been discharged at the deceased. It has also been discussed that the evidence of the solitary witness Bhajanlal that the accused reloaded his gun on the spot after discharging it at the deceased is also not borne out by the other witnesses who are said to have gone out at the hearing of the report of the gun; nor is it natural and probable. The prosecution has failed to show that the shots which were extracted from the body of the deceased on post mortem examination were similar to the shots found inside the gun and also in the possession of the accused at the time of his arrest. From the two classes of gun shot sent for from the lower court, it cannot be said without reasonable doubt that they are similar. In the light of these circumstances the mere fact that the accused was seen near the deceased, by Lachoo after the report of the gun was heard, was not sufficient to prove beyond a shadow of reasonable doubt that it was the accused and the accused alone who fired at the deceased. It is a well settled principle of Law that a conviction cannot be founded on circumstantial evidence alone unless it cannot be explained on any hypothesis other than that of the guilt of the accused. Wills' in his celebrated work on Circumstantial Evidence has given certain leading rule of evidence and rule No. 4 is that, "in order to justify the inference guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt". (Wills' Circumstantial Evidence, Seventh Edition, Chapter VI. page 320) This principle has been accepted in the case of Pir Hasan Din S/o Pir Fateh Shah vs. Era-peror (3), and it has also been held by Allahabad High Court in case of Emperor vs. Jag-mohan Thukral (4),that "it is a well established principle of law that an accused can be convicted on circumstantial evidence only when such evidence is quite incompatible with his innocence and there can be a reasonable certainty of guilt". Again, in the case of Ratan Lal vs. Rex (5 ). four principles have been laid down by Bind Basni, J. on the authority of the decision in the case of Queen Empress vs. Hosh Nak (6 ). They are as follows : (1) that the circumstances from which the conclusion is drawn are fully established; (2) that all the facts should be consistent with the hypothesis; (3) that the circumstances should be of a conclusive nature and tendency; (4) that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved. There in also a recent ruling of a Division Bench of this court consisting of his Lordship the Chief Justice and Bapna J. , in which the principles laid down in the case of Queen Empress vs. Hosh Nak (6)and accepted by Bind Basni J. in the case of Ratan Lal vs. Rex (5) referred to above, have been accepted in the case of Raidania vs. The State (7 ). In this case the circumstances were that the accused in the company of five others while pursued by a police party was seen with a gun. The party of the accused went behind the sugar cane filed in which the sugar canes were more than a man's height and, therefore, the accused were not visible to the chasing party. A shot was heard from behind the sugar cane field which killed H a member of the chasing party. Thereafter the six accused again started running away. It was held that "the fact that before the six persons disappeared behind the sugar cane filed and after they came out from behind that filed a gun was seen in the hands of Raidania would not necessarily lead to the inference that he alone could have fired the shot and exclude every other hypothesis, namely some one else out of the six might have taken the gun from his hand and fired the shot. " In the present case the adverse facts proved against the accused are at best that the accused was seen with his gun near the spot where the dead body was found immediately after the report of the gun was heard, and that he offered no explanation as to who killed the deceased. The place where the dead body was found was an open place and the possibility cannot be excluded that some body else might have fired at the deceased and run away or hidden himself when Lachoo, on turning back, saw the body of the deceased lying on the ground. This possibility is strengthened by the fact that the gun of the accused was found loaded when he was arrested by the police immediately after the occurrence. There is no satisfactory evidence to prove that the gun had been reloaded after having been discharged and its reloading was also improbable because the accused could not be expected to be so reckless as to waste his time in reloading the gun for no purpose whatsoever after killing the deceased. It has not been proved that the shots extracted from the body of the deceased were similar to the shots found in the possession of the accused at the time of his arrest. No sufficient motive for the accused is proved for the commission of murder of the deceased. A feeble attempt was made by Ram Das P. W. 1 to show that there was some dispute between him and the accused in relation to money dealings but he admitted that amicable settlement had been arrived at in respect to those dealings sometime before the date of occurrence. After the amicable settlement, it cannot be presumed that the accused would have any ill will towards Ram Das much less towards the deceased. Considering all these things, it cannot be said without doubt that it was the accused and no body else who was responsible for firing at the deceased and the fact that he did not offer any explanation as to who killed the deceased may be due to his not being able to see the real assailant; but even if it be not due to this, this circumstance alone would not fasten the guilt on the accused. As has been said by Wills in his celebrated work on Circumstantial Evidence (Seventh Edition, Chapter VI, Page 317) that "the proof of the case against the prisoner must depend for its support not upon the absence or want of any explanation on the part of the prisoner himself, but upon the positive affirmative evidence of the guilt that is given by the Crown. No doubt the circumstances made out against the accused create a grave suspicion against him but suspicion, however strong, cannot take the place of legal proof. It is to be regretted that a very serious crime has been committed and it is going unpunished. However, simply for this sake a man against whom guilt has not been brought home cannot be punished. The learned Sessions Judge acquitted the accused and according to the ruling of the Supreme Court in the case of Surajpal Singh vs. The Stated), there must be compelling reasons for this Court to set aside the order or acquittal of the accused and no such compelling reasons are found in the present case. The appeal is dismissed. . ;