- (1.) THIS is an appeal by Ramjilal, who has been convicted under sec. 302 of the Indian Penal Code by the learned Additional Sessions Judge, Gangapur, and sentenced to death. He has also been convicted under sec. 379 of the Indian Penal Code, and sentenced to undergo one year's rigorous imprisonment. The learned Additional Sessions Judge has also made a reference for confirmation of the sentence of death.
(2.) ONE Ram Sahai, aged about 25, was proceeding from his village Sanwata to Kundali to meet his father-in-law and to bring back his wife on the 30th of September, 1953. Ramjilal appellant was seen with Ram Sahai at village Gandal, and further on till they reached a canal, which was 1-1/2 furlongs from Kundali, by Kalu, P. W. 1, who went ahead to Kundali, and informed Dhinga, father-in-law of Ram Sahai, that his son-in-law was about to reach his village. As Ram Sahai never reached Kundali, Dhinga, Hazari, Kalu Chamar and Puniya, went to Sanwata, and asked Mooliya,p. W. 2, father of Ram Sahai, as to where Ram Sahai had gone. Mooliya said that he had left for Kundali. The party became anxious. It was about 4 A. M. and they began to make a search for Ram Sahai. His body was founds in a field of Juwar, near the place where he was last seen with Ramjilal appellant. Certain marks of injury were found on his body, and a report was made at Police Station Gangapur on the 1st of October, 1953, at 3-30 P. M. informing that Ram Sahai had been killed by some unknown person while he was on his way from Sanwata to Kundali. Investigations were carried out and the appellant was arrested on the 15th of October, 1953, at about 8. 30 A. M. The Sub-Inspector, Mr. Jagdish Prasad, P. W. 28, noticed in the evening that the clothes which Ramjilal was wearing had blood stains on them, and he took in his possession the rubber shoes, green shirt and knicker. These are Exs. 9, 10 and 11. He was lodged in the judicial lock up on the 17th October, on which date an identification parade was held,,, and various witnesses identified him to be the person who was seen with Ram Sahai while on his way from Sanwata to Kundali. On the 20th October the accused is alleged to have given information about selling two murkis to Ramjilal sharoff of Hindaun, P. W. 5 which was verified from P. W. 5 by the police and his account book disclosed purchase of gold murkis from Prabhu on 2nd October, 1953. P. W. 5 Ramjilal said that Prabhu was the name which the accused gave out to him. There was evidence that the deceased Ram Sahai while starting on his journey had a pair of murkis on his body, art J when the corpse was discovered it was noticed that those murkis had been snatched away from his ears. The murkis were not recovered as P. W. 5 Ramjilal said that they had been sold to someone. On the 21st October the accused is alleged to have given information about a gandasi Ex. 6, which was recovered on that date from the house of Mangal, father-in-low of Ramjilal in village Milak Sarai. 1 he Sub-Inspector sent Exs. 9, 10 and 11 and also the gandasi Ex. 6 to the Chemical Examiner who reported having found stains of human blood on these articles. The accused was committed to the Court of Sessions, after enquiry. The accused denied the charge and attributed his prosecution to enmity with one Narayan P. W. 16. The learned Additional Sessions Judge, after trial, held the accused guilty, and convicted him for having caused the murder of Ram Sahai and for stealing away his murkis. He was sentenced as aforesaid. Mr. Milap Chand, who appeared for the accused as amicus curiae, took us through the entire evidence, and contended that the entire evidence, even if believed, was insufficient for supporting the conviction. The case is of circumstantial evidence, and there is no doubt that the accused can only be convicted if the evidence can lead to no other conclusion but that the accused and no other person had committed the offence. The prosecution produced 28 witnesses in support of the prosecution, besides the reports of the Chemical Examiner and the Serologist. The entire evidence can be classified into the following heads: - (1) Evidence to show that the appellant Ramjilal was seen with Ram Sahai at various places during Ram Sahai's journey from Sanwata to Kundali. (2) Evidence to show that Ramjilal was seen with Ram Sahai at a place on the bank of a canal which is said to be about 1-1/2 furlongs from Kundall at about sunset on 30th September, 1953. (3) Evidence of the discovery of the corpse some time on the morning of 1st October, 1953, on search being made for Ram Sahai. (4) Evidence that Ram Sahai had on his person murkis which were not found on his body when it was discovered after his death, and there were marks which showed that they were snatched away from his ears. (5) Evidence that Ramjilal had sold, a pair of murkis to a Sharoff on 2nd October, 1953. (6) Evidence of the discovery of blood stained clothes on the person of Ramjilal on 15th October, 1953. (7) Evidence of the discovery of a gandasi Ex. 6 on 2ist October, 1953, on information supplied by the accused, and which was found to be stained with human blood. There is also evidence that Ex. 6. was in the hands of the accused on the date he was seen with Ram Sahai. The learned Additional Sessions Judge held that the evidence that Ramjilal accused was last seen with the deceased was true, and the denial made by the accused was a circumstance which raised a presumption of guilt against the accused. The medical evidence was clear that Ram Sahai had met his death on account of injuries by a sharp edged weapon on his neck, and that the instrument Ex. 6 was capable of producing those injuries. The learned Additional Sessions Judge laid great importance on the pharsi Ex. 6 being stained with human blood, and its discovery on information supplied by the accused was considered to be a strong piece of circumstantial evidence to connect the accused with the murder. The presence of human blood on the clothes, which the accused was wearing at the time of his arrest, and which were proved to have been worn by him at the time he was seen with the accused, was another piece of circumstantial evidence which the learned Judge considered to be sufficient to reach to an irresistible conclusion that Ram Sahai had been done to death by the accused. The prosecution also relied on the Extra judicial confession alleged to have been made by the accused to Mr. Nemichand Jain, Munsif Magistrate at Gangapur, while he was produced for remand and at the time of identification proceedings. The learned Additional Sessions Judge, however, has rightly held that that evidence was inadmissible, as the special provisions for recording confessions, if made before a Magistrate, provided by sec. 164 of the Code of Criminal Procedure, had not been complied with. The evidence in respect of the appellant Ramjilal having been seen with Ram Sahai on 30th September, 1953, while Ram Sahai was on his way from Sanwata to Kun-dali, consists of the statements of P. W. 1 Kalu P. W. 6, Birja P. W. 7, Chatru P. W. 8, Sua P. W. 9, Roop Narain P. W. 10, a Gangla P. W. 11, Sugnipa and P. W. 18 Hazari. Of these the important evidence is of P. W. 1 Kalu, PW. 6 Birja, P. W. 7 Chatru and P. W. 8 Sua. Kalu stated that while he was returning from Gandal to Kundali, he saw Ramjilal accused sitting on a stone near Ram Sahai who was sitting on another stone near the bank of a canal which was going from Gandal to Kundali. On asking Ram Sahai, * the latter told him that he was going to his father-in-law. The witness went in advance and informed Dhinga, father-in-law of Ram Sahai, that the latter was about to visit him. The witness identified the shoes, shirt and knicker, Exs. 9, 10 and 11 to be those which were on the person of the accused at that time, and Ex 6, pharsi, was also recognised as being in the hands of the accused at that time. It was then sunset when he saw the accused with Ram Sahai. Birja, P. W. 6, resident of Gandal said that he knew Ram Sahai son-in-law of Dhinga from before, and saw him on his way towards Kundali while passing his house about half an hour before sunset. He identified Ramjilal to be the person who was with Ram Sahai on that day, and also recognised Exs. 9, 10 and 11 to be the article which were on the person of Ramjilal, and Ex. 6 in his hand. He is said to have some talk with the appellant Ramjilal, who stated that he wanted to purchase a cow. Chatru. P. W. 7, resident of Gandal, corroborated Birja in practically all particulars. Sua, P. W. 8, resident of Gandal, said that while he was cutting grass in the jungle, the accused came, and there was some talk between the two, in the course of which Ramjilal is alleged to have said that he was a thakur by caste and wanted to buy a cow. The witness identified the gandasi which was in his hand at that time, also the clothes and the shoes which he was wearing. The time given by the witness when he saw Ramjilal is 4 or 5 P. M. This was obviously before Ramjilal met Ram Sahai in the course of his journey. P. W. 10 Gangla and P. W. 11 Suganiya only depose to have met Ramjilal on the morning at Bharda Talab and to have seen him wearing articles Exs. 9 to 11. P. W. 8 Roop Narain speaks of having seen Ramjilal at about sunset on the day of incident while going from the side of Kundali to the side of Bharda. All this evidence only proves that the accused was with the deceased Ram Sahai at about sunset on the 30th of September, 1953. This may be of importance if it is otherwise proved that Ram Sahai met his death on or about the time when Ram Sahai was last seen with Ramjilal. There is however no proof at what time Ram Sahai met his death, for the only evidence in this respect is discovery of the corpse some time next morning and the medical evidence that death may have taken place about 3 or 4 days before the 2nd of October, 1953, when the body was examined by Dr. Brij Kishore Sharma, P. W. 26, at 5. P. M. He noticed three incised wounds on the right side of the neck, and the cause of death was shock produced by profuse bleeding from the cutting of big vessels of the neck by sharp edged object. He stated that these injuries could be caused by the pharsi (gandasi) Ex. 6, and that death appeared to have taken place within 3 or 4 day of the post mortem examination. This opinion is not at all helpful, for admittedly Ram Sahai was alive till the evening of 30th September, 1953, and only 48 hours had elapsed when the body was examined by the doctor. The earliest time when the dead body of Ram Sahai was noticed is some time on the morning of 1st October. It is unfortunate that the exact time is not on the record, but we have from the evidence of Mooliya P. W. 2 that Dhinga and his companions from Kundali came to him at about 4. A. M. , and asked about the whereabouts of Ram Sahai and thereafter went out in search of Ram Sahai, and the party ultimately found Ram Sahai's dead body lying in a field of juwar. This, however, only proves that Ram Sahai was dead on the morning of 1st October, but does not prove the time of his death. The circumstance of Ramjilal being found on the previous evening with Ram Sahai is, therefore, insufficient to connect Ramji with the murder of Ram Sahai, in the absence of other circumstances pointing to the guilt of Ramjilal. There is evidence that the deceased had set out from his house wearing a pair of murkis and that the murkis were not found on the body of the deceased when his corpse was discovered. It has also been proved that Ramjilal gave information that he had sold a pair of murk is to Ramjilal P. W. 5. Ramjilal P. W. 5 proves that the accused Ramjilal sold a pair of murkis to him, but as the murkis have not been recovered, it lis not possible to say whether the murkis sold by the accused were the same which were worn by the deceased. This circumstance is, therefore, of no value in proving the guilt of the accused. The recovery of blood stained clothes from the person of the accused has been sufficiently proved. Jagdish Prasad, P. W. 28, says that he arrested Ramjilal on the morning of 15th October and by evening noticed that his clothes were blood-stained. He took the shirt, shorts and shoes of the accused in his possession at about 5 or 5-30 P. M. The evidence about time does not seem to be accurate, for in the seizure memo, Ex. P.-15, the time of seizure of these articles is mentioned as 10 P. M. We accept the evidence of the Sub- Inspector that he made a proper memo of seizure and packed the articles and put proper seal before sending the same to the Chemist. We also accept the report of the Chemical Examiner and the Imperial Sero-logist that these articles Exs. 9, 10 and 11 were found to be stained with human blood It may also be accepted on the evidence of various witnesses discussed above that the accused was wearing these articles at the time he was seen with Ram Sahai. The learned Additional Sessions Judge has. however, committed an error in utilising this evidence against the accused without calling upon him to give an explanation about the presence of human blood on these 'articles. This may have necessitated a remand of the case but even assuming that they were stained with human blood, there is a delay; of 15 days between the date of the incident and the date of the recovery of these articles. The presence of human blood after such a long delay loses much of its value, for there can be other reasons for the presence of human blood on the clothes, for instance, a person may have received a cut or there might be a case of bleeding from the nose and so on The fact that blood stains on the clothes of the accused were no (t noticed till after the accused had been in police custody for more than 12 hours required more fuller explanation by the prosecution. Leaving that circumstance apart, the circumstance of discovery of clothing worn by the, accused being stained with human blood after a period of fifteen days from the date of incident is a very weak sort of evidence against the accused. In this connection we may refer to an observation to be found in. The State vs. M'otia (l), "the presence of these blood stains after a period of seven days does not necessarily indicate that they must have been received in this murder. " The next important piece of evidence against the accused is the recovery of a bloodstained gandasi (also called pharsi by various witnesses ). The recovery of the gandasi Ex. 6 is proved by the evidence of Jagdish Prasad, P. W. 28, Murli, P. W. 24 and Chiranji. P. W. 22. This gandasi has been identified, as stated above, by various witnesses to be in the possession of the accused on the date of the incident. The identification of the gandasi before a Magistrate is, however, not of much assistance, for Chiranji P. W. 28, admitted that Ex. 6 had brass rings while other gandasi with which it had been mixed up for identification has no such rings. Assuming, however, that this gandasi Ex. 6 was with the accused on the 30th September, 1953, and was also recovered at his instance, and was stained with human blood, it has to be kept in mind that this recovery was on the 20th October, 1953, and no question was asked by the learned Additional Sessions Judge to the accused to give him a chance to explain the presence of the blood-stains. The accused was asked whether the gandasi belonged to him, to which he answered in the negative. But as in the case of clothing the accused had not been given an opportunity to explain the blood stains, in any case the presence of blood stains after such a long period doesnot necessarily indicate that the instrument was used for the murder of the deceased, and that human blood stains could not be expected to be found for any other reason. At best, it may raise some suspicion against the accused, but suspicion however graver cannot form the basis of conviction when the evidence is entirely circumstantial. As stated in the earlier part of the judgment, the prosecution evidence was sought to be reinforced by proof of the confession before Shri Nemi Chand, Magistrate, who conducted the identification of the accused. But that confession has been rightly discarded by the learned additional Sessions Judge. Another piece of evidence which seeks to connect the accused with the crime is the evidence of P. W. 16 Naran, who said that the accused met him at Gandal on the night of 30th September, 1953. The accused told him that he wanted to purchase a cow and wanted to rest in the village for the night, and he allowed him to do so. The inference is that this was the time when he may have come to the witness after the incident, but that is only a supposition for, as stated earlier, we do not know when Ram Sahai met his death At any rate, it does not connect the accused with the murder of Ram Sahai. That is all the evidence that has been led by the prosecution to connect the accused with the crime. In our opinion, the evidence is entirely insufficient to bring home the guilt to the accused, The evidence may raise some sort of suspicion, but suspicion, as stated earlier, however grave cannot form the basis of conviction of so serious a charge as murder. The appeal is, therefore, allowed, and the accused is acquitted of both the charges, and the conviction and sentences passed upon him are set aside. The reference automatically fails and is dismissed. The accused will be set at liberty, if not required for any other offence. ;