- (1.) THESE are three criminal matters arising out of the judgment of the learned Sessions Judge, Ajmer, dated the 16th April, 1957 by which he convicted the accused Baloo and Budha of an offence under sec. 342 I. P. C. and sentenced each of them to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 200/- each, and in default to undergo further rigorous imprisonment for a period of two months, and acquitted the remaining accused Bhoma son of Deva, Goma son of Kana, Goma son of Amra, Dhanna son of Kajja, Heera son of Kalu and Lala son of Dula. All the accused were acquitted of charges under sections 302 read with sec. 34 and 120b I. P. C. Budha accused has filed appeal No. 63 of 1957 against his conviction and sentence under Sec. 342 I. P. C. Baloo has filed a similar appeal No. 66 of 1957. The State has also filed an appeal which is appeal No. 94 of 1957 against the acquittal of all the accused under sec. l21-B and 302 read with sec. 34 and also against the acquittal of all the accused except Baloo and Budha of an offence under sec. 342 I. P. C. We shall dispose of all these three matters by a single judgment.
(2.) THE material facts leading up to these appeals may be shortly stated as follows. THE deceased Chhoga aged about 25 years lived in village Borai which is at a distance of about three to four miles from Ajmer City towards the west. P. W. 1 Mst. Birji is Chhoga's mother, and P. W. 8 Ratna is Chhoga's step brother. THE accused Baloo, Bhoma, Goma son of Kana, Goma son of Amra, Dhanna and Heera all lived in Barlia which is situate at a distance of about five to six miles from Ajmer on the east. Accused Budha lived in Parla, and the remaining accused Lala in Balipura. THE deceased and the accused are all Rawats. The case for the prosecution is that on the 26th June, 1956, Mst. Ghisi wife of Baloo accused left her Dhani Shakola situate in village Barlia for Ajmer to sell fire-wood but she failed to return home. Baloo's suspicions, in the first instance fell on one Mangu Singh of Baldura. Mst. Ghisi was not found and so on the 3rd July, 1956, Baloo made a report at the police station, Shrinagar (Ex. P-23) at about 8 A. M. in which he stated that she had disappeared on the 26th June, 1956, and that he had come to know on the 2nd July, 1956, that she was living with one Mangu Singh Daroga, a watchman, who lived in Baldura. It was also stated in the report that she had taken away ornaments worth about Rs. 100/- with her. The police entertained the view that there appeared to be an old illicit intimacy between Mst. Ghisi and Mangu, and, therefore, directed Baloo to seek redress in a court of law. Thereafter, the case for the prosecution is that Baloo came to know that it was the deceased Chhoga of Boraj who had beta responsible for the disappearance of his wife, and so on the 5th July, 1956, all the eight accused are alleged to have gone to the house of Chhoga. They inquired from him where Mst. Ghisi was. Chhoga said that he did not know anything about the matter. Thereupon they asked Chhoga to accompany them to Ajmer where, they said, the matter would be placed before a caste Panchayat. Chhoga accompanied them. The story then is that the accused did not take Chhoga to appear before any Panchayat but instead they took him to Shakola. It is said that they had hired the taxi No. AJM 1088 of one Mohanlal P. W. 3 at Ajmer on their way to Shakola. The accused are then alleged to have taken Chhoga to the bar a (enclosure) of Goma (Son of Amra) accused and they tied his hands with a rope and hung him to a branch of a neem tree. This was obviously done in order to extract the necessary information from him as to the whereabouts of Mst. Ghisi. P. W. 4 Heera who was also a resident of Barlia happened to reach the place at that time. It is said that Chhoga had disclosed that Ghisi was with P. W. Moti, a maternal uncle of Chhoga, who lived in village Magri. This village is situate at a short distance from Ajmer on the side of Nasirabad. On Chhoga having disclosed the aforesaid information, he was released, and the story proceeds that the accused Budha then caught hold of Chhoga's hands and took him to the house of Baloo and shut him in a room there so that meanwhile they could go to Moti and fetch the woman, and, if necessary, to confront Moti with Chhoga. Budha having put Chhoga in room, locked it up and took the key with himself. Thereafter, the entice party including Heera left for village Magri in the taxi of P. W. Mohanlal. Inquiries were made from Moti, and it is said that the latter told them that Chhoga had come to his house with Mst. Ghisi some six days back, stayed there for about two days ana then departed from there. Moti volunteered to accompany the accused persons to be confronted with Chhoga if necessary. So the accused and Heera and P. Ws. Dhanna and Nahara (who are also said to have joined the party on their trip to Magri) and Moti came back to Barli. It is said that it was raining throughout the journey. The party reached Barli when darkness had fallen. Budha opened the lock of the room in which Chhoga had been shut before they left for Magri. As it was all dark inside the room a match was lighted. Baloo and Budha entered the room, followed by the accused Dhanna. These persons including Heera found that though Chhoga's body was slightly warm he had no pulse and no heart-beat, and so they declared that he was dead. Baloo and Budha bodily brought Chhoga out of the room and placed him on the ground. Heera is said to have suggested to the accused persons to report the matter at once to the police, but as they paid no heed to this, he immediately left the place and so also did P. Ws. Nahara and Dhanna. Thereafter, the case for the prosecution is that the body of Chhoga was taken to a lime quarry which was at a distance of about three furlongs from Baloo's house and it was buried in that pit, the quarry was about 9 to 10 feet deep. In the meantime P. W. 7 Moti, maternal uncle of Chhoga, (who had been brought from village Magri) as soon as he came to know as he says that Chhoga was "about to die", managed to leave the place from the side of the jungle. It is a pity that he did not report the matter to the police immediately even though he admits that he passed through Ajmer on his way to Boraj. Perhaps he was mortally afraid of what had happened to his relation and was only too anxious not to be involved in the matter. Moti reached his sister Mst. Birji's house at about 7 A. M. on the 6th July, 1956. The accused Baloo is also alleged to have gone to Birji's house that morning, on the pretext that he had come to inquire whether Chhoga had returned home or not. Baloo also told them that although Chhoga was with them, he had escaped from their company and so he had come to make the inquiry. When Baloo was at Mst. Birji's house, her son Ratna was of course there. P. W. 9 Ghisa, P. W. 10 Dhanna, P. W. 11 another Dhanna and P. W. 12 Khaju also happened to come there at the time. They all pressed Baloo to disclose the truth. It is said that Baloo admitted to them that he and his companions had killed Chhoga on the night previous and had thrown his dead body into a lime quarry at a distance of three to four furlongs from his house. Mst. Birji and Moti then left to report the matter to the police at the Ajmer Civil Lines Police Station. Moti took her upto the police station and then left her alone. The report (Ex. P. 9) was made by Mst. Birji at 12 noon and was to the effect that on the previous day, some 10 or 12 persons accompanied by some boys had come to her house and inquired from his son Chhoga as to whether he had with him Baloo's wife. Chhoga replied in the negative. Thereupon, they asked Chhoga to accompany them and the latter went away with them. . Mst. Birji said that he suspected that if the woman should not have been found, the Barliawalas might have killed his son. . This report was recorded by P. W. 19 Ahman Kumar, a head constable at the Civil Lines Police Station," Ajmer. Thereupon Sub Inspector Ahisan Ali left the police station at 12-10 P. M. for village Barlia. He was met on the way by P. Ws. Ghisa, Dhanna, Khaju and Ratna in Gunj Mohalla and the accused Baloo was also with them. These persons informed the Sub-Inspector that Baloo had told them that he and his associates had brought Chhoga to Barlia in connection with the disappearance of Baloo's wife Mst. Ghisi and that they had killed him in the night and buried his dead body in a lime quarry at a distance of three to four furlongs from Baloo's house. As the occurrence related to the jurisdiction of police station Shrinagar, Sub Inspector Ahisan Ali made the report Ex. P. 10 to the Station House Officer, Shrinagar, police station, P. W. 24 Todar Singh at 2 P. M. The accused Baloo having already been arrested by Sub Inspector Ahisan Ali was made over to the Sub Inspector Todar Singh. The accused Baloo told Sub Inspector Todar Singh that he would point out the place where Chhoga's dead body was buried fey him. P. Ws. Nanda and Narain were taken as motbirs from Shakola which was on the road-side, and Baloo's statement relating to the discovery that he wished to make was recorded (Ex. P. 1 ). Thereafter the accused led the Sub Inspector and the witnesses to the quarry. Baloo entered into the quarry and then some other persons also, and the body of Chhoga was dug out. P. W. Ratna identified it to be that of his brother Chhoga deceased. The hands and feet of the deceased were found tied with a turban (See Ex. P. 2 in this connection ). The dead body was then sent for post-mortem examination to the medical officer in charge of the Victoria Hospital, Ajmer. The post-mortem report is Ex. P. 11. According to doctor Kunj Beharilal, the death of Chhoga was caused by suffocation. Both the lungs of the deceased were deeply congested and there were multiple haemorrhage in the lungs. The trachea and the bronchi were deeply congested, and thick sandy fluid was found in plenty in the trachea, larynx and bronchi. The doctor also said that the body was decomposed and, therefore, no wounds or bruises could be seen as blisters had appeared all over the body. Apart from the accused Baloo who was arrested on the 6th July, 1956, all the other accused were arrested on the 9th July, 1956. All the accused pleaded not guilty and disclaimed all connection with the crime. Three of the accused, namely Bhoma son of Deva, Goma son of Kana and Goma son of Amra admitted this much that they had gone to village Magri at the instance of Heera to search for Mst. Ghisi and further stated that it was Heera who had paid the hire of the taxi in which they had gone there. The accused Bhoma also gave out the story that when they returned from Magri it was P. W. Heera who gave the key of Baloo's room to P. Ws. Nahara and Dhanna, and that thereafter these persons unlocked the room, and as it was all darkness inside, they shortly afterwards declared that Chhoga had hung himself and committed suicide. The prosecution produced 24 witnesses in support of its story. But before we deal with the evidence of the relevant witnesses, we should like to briefly summarise the findings of the learned Sessions Judge. The learned Judge found in the first place that it was proved that all the accused persons except Lala and Budha had gone to Boraj and brought the deceased Chhoga from his house saying that he would be taken to the Panchayat and asked to make his statement before it about the disappearance of Mst. Ghisi and that he was instead taken to Dhani Shakola in Barlia. In the second place, the learned Judge found that the story of the prosecution that the deceased was tied with a rope by his hands and hung up to the branch of a neem tree was deposed to by P. W. Heera alone although other persons were undoubtedly there and could have been produced by the prosecution to support it. Apart from that, according to the learned Judge, that story was not supported by the testimony of the medical witness Dr. Kunj Beharilal (Ex. P. 24) inasmuch as he clearly stated that he did not find any mark of ligature on the body of the deceased. The learned Judge was, therefore, not prepared to accept the uncorroborated testimony of P. W. Heera that the accused had tied Chhoga's hands by a rope and hung him to a tree. In the third place, the learned Judge found that it was proved that Chhoga was locked in Baloo's room, but his further finding was that the only two persons who were responsible for this were Baloo and Budha accused, and that it was not proved beyond all reasonable doubt that Goma and the other five accused were a party to the act of locking Chhoga in the room. In the fourth place, the learned Judge came to the conclusion that when the accused and some of the prosecution witnesses notably P. Ws. Heera, Dhanna, and Nahara saw the deceased when he was brought out of the room, they did not find any pulse or heart beat in the deceased, and therefore, they took him to be dead. As regards the cause of the death of Chhoga, the finding of the learned Judge, however is that Chhoga was buried in the quarry when he was still alive, and that he died subsequently on account of suffocation, and this finding is based on the evidence of the medical witness that a good deal of sandy fluid was found in the trachea, larynx and bronchi of the deceased, and that such particles could find place in the respiratory cracks only if a person was buried alive. On these facts, the learned Judge came to the conclusion that the accused Baloo and Budha were guilty of an offence under sec. 342 I. P. C. only, and that there was no evidence whatsoever against these and the other accused that they had conspired to murder Chhoga. As for the argument that a case under sec. 304 I. P. C. was established at least against Baloo who was responsible for throwing the body of the deceased Chhoga into the quarry, the learned Judge relying on In re Palani Goundan (1) - F. B. held that an offence under that section was not established as the accused had bona fide believed that Chhoga had died before he was buried in the quarry As already stated above, according to the learned Judge, the only persons responsible to locking Chhoga in the room were Baloo and Budha, and the remaining accused were not a party to it and so he convicted these accused under sec. 342 I. P. C. and acquitted the remaining accused altogether.
(3.) THE accused Baloo and Budha and the State have filed appeals against the aforesaid judgment, and we purpose to take up the appeal of the State first. The contention of the learned Assistant Government Advocate for the State, succinctly put, is that even though a case of conspiracy was not proved against the accused, there was ample material on this record for the learned trial Judge to have held all the accused guilty under sec. 342 read with sec. 34, and further, that so far as the accused Baloo was concerned, he should have been held guilty at least under sec. 304 I. P. C. We may point out at the very outset certain facts which are clear enough and about which there cannot be any serious dispute. There is no doubt that Mst. Ghisi had disappeared from her husband's home. The accused Baloo was, therefore, naturally anxious to find out where his wife had gone. He suspected Chhoga's complicity in the matter. In Baloo's endeavour to bring back his wife, he naturally had the sympathy of certain persons in his own village particularly those belonging to his own community. We can, therefore, quite understand if Baloo, accompanied by certain other persons including some boys, having got a clue that Chhoga was connected with the disappearance of his wife, should have gone to the latter's house in Boraj. So far, we see nothing criminal about this adventure. Chhoga said that he did not know anything about the missing woman and was prepared to accompany them to say this to the caste Panchayat. It also admits of no doubt that instead of being made to appear before a Panchayat Chhoga was then taken to Dhani Shakola where Baloo and most of the accused lived. A very important part of the case for the prosecution then is that Chhoga was taken to Goma's enclosure and his hands were tied with a rope and he was hung to a neem tree in order to force Chhoga to disclose the whereabouts of Mst. Ghisi. Is this story true ? The only evidence on this point, as stated by the learned Sessions Judge is that of P. W. Heera and the learned Judge has not believed him on this point. It has been strenuously contended before us on behalf of the defence that Heera was playing a a rather crooked part in this entire drama, that although he had gone to Boraj himself initially with the party, he had concealed that fact; and, in any case, Heera was undoubtedly present at the place where Chhoga is said to have been hung up to a tree and also when the latter is said to have been subsequently locked up in Baloo's house, and, further, he admittedly was with the entire party when they went to Moti's village Magri and yet Heera was shewed enough to exculpate himself when he came dangerously near the trouble-spots and behaved as if he was a passive and detached spectator of all that had happened in his presence. On his own admission, Heera was a Patel of his own village (though there were two or three other also) and he had certainly not reported this incident to the police after he had left Barlia on the night of the occurrence. If Heera, who by no means appears to us to be a simpleton, had reported the matter to the police at Ajmer, which was at a very short distance from Barlia, perhaps the life of Chhoga would have been saved. The contention of learned counsel for the accused was that Heera was nothing but an accomplice in this entire affair and that his evidence was not worthy of belief and we should discard it altogether. We have anxiously considered the entire position, and although we are not prepared to go so far as to say that Heera was an accomplice in this crime, we are clearly of opinion that we should apply due caution to his testimony, and it would not be safe for us to take his testimony at its face value, and that we should accept his evidence only on such part of the case for which ft is possible for us to 6nd corroboration elsewhere. As the learned Sessions Judge who had the advantage of seeing and hearing Heera was not prepared to believe him so far as the tying of the deceased to the neem tree is concerned and as there is no independent corroboration of that story, whether direct or circumstantial, we are not prepared to hold in disagreement with the learned trial Judge that this particular part of the entire incident stands proved on the record beyond doubt. Thi6 brings us to that part of the prosecution story according to which the deceased was locked in Baloo's room. We have no doubt that Chhoga deceased was locked in Baloo's room. On this point there is not only the testimony of P. W. Heera, but this part of the story is accepted, though not directly, by three of the accused themselves, namely, Bhoma son of Deva and Goma son of Kana and another accused Goma son of Amra. We also have the evidence of P. W. 5 Nahara, P. W. 6 Dhanna and P. W. 7 Moti in this connection. We see no reason, therefore, to doubt that Chhoga was put into a room in Baloo's house, and the room was then locked and thereafter the party left for the village Magri to contact P. W. Moti. ;