Paramhansa Jadab and Anr. v State

MANU/OR/0057/1964

Equivalent Citation: AIR1964Ori144, 31(1965)CLT17, 1964CriLJ680

IN THE HIGH COURT OF ORISSA

Criminal Appeal No. 38 of 1963

Decided On: 01.10.1963

Appellants: Paramhansa Jadab and Anr. Vs.

Respondent: The State

Hon'ble Judges/Coram: R.L. Narsimham, C.J. and Raj Kishore Das, J.

Counsels: For Appellant/Petitioner/Plaintiff: A.K. Padhi, Adv.

For Respondents/Defendant: Standing Counsel

Subject: Criminal

Subject: Law of Evidence

Acts/Rules/Orders: Indian Evidence Act, 1872 - Section 26, Indian Evidence Act, 1872 - Section 27, Indian Evidence Act, 1872 - Section 133; Code of Criminal Procedure (CrPC) - Section 46, Code of Criminal Procedure (CrPC) - Section 164, Code of Criminal Procedure (CrPC) - Section 533; Indian Penal Code 1860, (IPC) - Section 8, Indian Penal Code 1860, (IPC) - Section 302

Cases Referred: Lay Maung v. Emperor, AIR 1924 Rang 173; Haroon v. Emperor, AIR 1932 Sind 149; Pharho Shahwali v. Emperor, AIR 1932 Sind 201; Gurdial Singh v. Emperor, AIR 1932 Lah 609; In Re: Edukondalu, AIR 1957 Andh Pra 729; State of Uttar Pradesh v. Deoman Upadhya, AIR 1960 SC 1125; Emperor v. Sheo Ram, AIR 1928 Lah 282; Mt. Hassan Pari v. Emperor, AIR 1941 Pesh 22; Emperor v. Mt. Jagia, AIR 1938 Pat 308; Empress v. Lester, ILR 20 Bom 165; Emperor v. Mallangowda Parwat Gowda, ILR 42 Bom 1, AIR 1917 Bom 130; Bala Majhi v. State of Orissa, 1952 Cri. L.J. 1743, AIR 1951 Orissa 168; Bhima Shaw v. State, 22 Cut LT 317, AIR 1956 Orissa 177

Citing Reference:

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11 Case Note: Criminal - Conviction - Sections 302,34 and 201 of Indian Penal Code, 1860 - Sessions Judge convicted Petitioners for offence of murder and furnish false information to screen offender - Hence, this Appeal - Whether, Appellants were rightly convicted -Held, judicial confession of Paramhansa was given most prominent part in commission of the crime - However, confession of co-accused which was retracted could not be used as corroboration of Munari's evidence against Paramhansa - Thus, evidence

Discussed

Mentioned

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against Munari, Dukh Haran and Paramhansa towards Bada Jamda was identical with that against Paramhansa - Confession of Paramhansa was not voluntarily and was not true - It was proved that Magistrate had told Appellant that he was not bound to make confession - However, confession of Ram Jatan could be used to limited extent against himself as corroborating evidence of Munari about his participation in commission of crime could not withstand - Ram Jatan had unambiguously admitted that he was joint participant in murder - Although, explanation given by Ram Jatan that he was threatened with death by Paramhansa could not exonerate him from criminal liability -Therefore, Munari's evidence against Ram Jatan was adequately corroborated - No inference of guilt could be made from conduct of Ram Jatan that he worked in Jute Mill in another name - Hence, Appeal of Appellant, Paramhansa was allowed and he was acquitted - Conviction of Appellant Ram Jatan was maintained - Appeal partly allowed.

Ratio Decidendi: " Cou r t s sh a l l p ass p r op or t io n a t e sen t en ces o n a p r o p er scr u t in y o f em an at in g ci r cu m st an ces a t t im e o f o ccu r r en ce o f ev en t s."

Disposition: Appeal partly allowed

JUDGMENT

Narasimham, C.J.

1. This is an appeal from the judgment of the Sessions Judge of Mayurbhanj-Keonjhar convicting the petitioners under Section 302/34 of the Indian Penal Code for the murder of one Dukh Haran Harijan on the 17th December, 1961 at about 10 P.M. and sentencing them to R. I. for lite. The learned Sessions Judge further convicted them under Section 201/34, I. P. C. but did not pass a separate sentence for that offence.

2. The crime is said to have been committed in a jungle near Kiriburn in the district of Keonjhar where due to extensive mining projects recently started by the National Mineral Development Corporation there is a large colony of up-country labourers including several people from Gorakhpur and other districts of Uttar Pradesh. One of these labourers was the deceased Dukh Haran Harijan, who came there from his village in Gorakhpur district accompanied by his wife Munari (P. W. 19) and was employed under Dr. Asthana (P. W. 6), the senior Geologist in the said Corporation. One of his relatives is Ram Murat (P. W. 13) who was also working there as a Chowkidar in that project. The two appellants Ram Jatan Jadab and Paramhansa Jadab also belonged to Gorakhpur district and they were working at Kiriburn as Choukidars. Appellant Ram Jatan Jadab was the Choukidar in the prospecting camp and appellant Parmahans Jadab was working as Choukidar at another camp on a hill-top some miles away. It was alleged that these two appellants seduced Munari (P. W. 19) and for some days she actually lived with appellant Paramhans on the hill-top. Her husband Dukh Haran made a complaint before Dr. Asthana P. W. 6 against this conduct of the appellants and as this became a scandal, Dr. Asthana discharged appellant Ram Jatan Jadab from service. He could not punish appellant Paramhans as he was working under the Senior Administrative Officer, Mr. Kachru. Hence on the suggestion of Dr. Asthana a petition (Ext. 6) was prepared and signed by Dukh Haran complaining against the conduct of appellant Paramhans in carrying on illicit intrigue with Dukh Haran's wife. The petition was however not sent to the Senior Administrative Officer on account of the happening of the subsequent events which eventually ended in the murder of Dukh Haran.

3. According to the prosecution the circumstances leading to the murder of Dukh Haran are as follows :

The two appellants decided to get rid of the inconvenient husband. But with a view to allay his suspicion they pretended to agree to his taking back his wile and returning to his home in Gorakhpur Dist. Accordingly Dukh Haran gave up his job on 14-12-61 and received his wages for the week ending 14-12-61 on the 16th or 17th Dec. 1961. Then on the 17th December 1961 the two appellants Dukh Haran and his


wife Munari P. W. 19 proceeded from Kiriburn to the nearest Railway Station at Bada Jamda. But the appellants were anxious to divert suspicion from themselves and hence they all went to the Mechanical draftsman of the project (P. W. 9) where, at the suggestion of the appellant Paramhans, a Sulenama (compromise petition) was written to the effect that the dispute between the appellants and Dukh Haran was settled; that Dukh Haran's wife was returned to him (Dukh Haran) with her ornaments and the couple was returning to their native place. P. W. 9 accordingly scribed the document and handed it over to the appellant Paramhans. Then at about 7 P.M. Dukh Haran was said to have handed over some silver ornaments of his-wife to Paramhans who pledged them with a hotel-keeper, P. W. 10 for Rs. 25/- and received an advance of Rs. 15/- from him. The balance of Rs. 10/- was paid several days later by P. Ws. to Paramhans. Dukh Haran was also present then and the hotel-keeper (P. W. 10) was informed that the money was required to pay the expenses of Dukh Haran to go to his native place and a document was also executed by Dukh Haran in favour of the hotel keeper (Ext. 7). Thereafter the party proceeded towards Bada Jamda. On the way they were also seen by two Chowkidars Ramjit (P. W. 14) and Bhagaban Das (P. W. 15) at about 10 P.M. proceeding on a foot-path towards the base camp of the project. That was the last occasion when Dukh Haran was seen alive.

4. As to what happened subsequently we have the direct testimony of Dukh Haran's wife Munari P. W. 19. According to her the appellants deliberately chose a path through a jungle saying that that was a short cut to reach Bada Jamda railway station. After proceeding some distance appellant Paramhans suddenly attacked Dukh Haran, felled him and also sat over his chest. Then appellant Ram Jatan took out a knife from the pocket of Parmahans and inflicted several injuries on the neck of the victim. Then both the appellants severed the head and right hand of Dukh Haran and concealed them in a bush nearby. His right hand was cut because the name of Dukh Haran was tattooed on that hand. Munari stated that it was appellant Ram Jatan who severed the head and right hand and concealed them in a bush. Then they took away the cash from his pocket of Dukh Haran and leaving the mutilated trunk there returned to the quarters of appellant Paramhans that night. Munari was threatened with murder if she would disclose the crime to anybody. Then they later on went to the base camp where two seats were arranged in a truck by Paramhans for Ram Jatan and Munari to take them to Bada

Jamda railway station. Paramhans however stayed behind at Kiriburn. Ram Jatan took Munari to his house in Gorakhpur district and kept her for sometime. But when his relations objected to keeping her as she is a Chamar by caste he took her to Gorakhpur Railway Station and left her there. From there she went to her native village by train. For sometime thereafter she did not disclose the crime to anybody due to fear of Ram Jatan.

5. In the meantime on 25-12-61 the corpse without the head and right hand was noticed by some of the labourers who reported the matter to the Section Officer, Birendra Sharma (P. W. 5) who saw the corpse and then sent a report (Ext. 2) to the Deputy Administrative Officer (P. W. 2) who immediately forwarded it to the Officer-in-charge, Barbil police station (P. W. 20). His A. S. I. (P. W. 17) registered it as an U. D. case, went to the spot and held an inquest over the trunk. The severed right hand was found lying at a distance of about 30 cubits from the trunk. The head, however was not traced. Some clothes (M. Os. I to IV) were on the dead body. The body was then sent for post-mortem examination to Dr. Hazra (P. W. 1). As the body was in an advanced stage of decomposition the Medical Officer could not say how the head was severed from the body and he could not give any definite opinion about the cause of death. Similarly, he could not give any opinion about the cause of severance of the right hand from the body as the muscles were in a state of decomposition and the skin margin were in black and pulpy condition. But as the fleshy portions were still attached to the body the Medical officer further stated that the possibility of a tiger attack was remote. This opinion is material because some of the witnesses have stated before the Police that they noticed the marks of paws of wild animals near the place where the corpse was found.

6. The case was investigated by the S. I. P. W. 20 and the Circle Inspector (P. W. 22). They both visited the spot and found it to be a rocky bed near a stream. There were cut marks on the rocky bed and small particles of bones were also found near those cut marks. These pieces of


bones were sent to the Chemical examiner whose report shows that they were stained with human blood. The police then took vigorous steps to arrest Paramhans at Kiriburn, Munari in her village in Gorakhpur district and also to trace out appellant Ram Jatan. Munari's statement was recorded by the police on 4-3-1962 in her home village and she was also produced before a Magistrate at Gorakhpur where her statement was recorded under Section 164 of the Criminal Procedure Code on 5-3-62. Appellant Paramhans was also interrogated and produced before Dr. Asthana (P. W. 6) in the afternoon of 18-2-62. He made an extra judicial confession before this Officer completely confessing his guilt and implicating appellant Ram Jatan also. He was then arrested by the police on the next day 19-8-62 and produced before the Magistrate. Sometime later appellant Ram Jatan was found in the labour camp at Barrackpore near Calcutta. He was arrested on 15-3-62 and produced before a Magistrate at Barrackpore (P. W. 21) where on 17-3-62 he made a confession Exhibit 12. (The judgment then discussed the evidence in the rest of the para and in paras 7 to 10 and proceeded : )

11. The case against the two appellants will be dealt with separately.

Appellant Paramhansa Jadav.

12. Though Munari's evidence about the con-duct of this appellant till the departure of the party towards Bada Jamada has been amply corroborated as given above, there is no corroboration of her evidence as to what happened subsequently except his extra-judicial confession. The crucial question for consideration is whether that, extra-judicial confession made before Dr. Asthana. (P. W. 6) on 18-2-62 in the afternoon and again repeated before Uchhab Swain (P. W. 12) on the next day early morning is admissible. When questioned about this confession Paramhansa stated that he was actually in police custody from 16-2-1962 before he was taken to Dr. Asthana. It was however urged by Mrs. Padhi on behalf of this appellant that though the police took care to formally arrest him only on 19-2-1962 as stated by the Circle Inspector (P. W. 32) he was for all practical purposes in police custody at the time he made the confession before Dr. Asthana and that consequently that confession would be inadmissible under Section 26 of the Evidence Act.

13. It is now well settled that "police custody" for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v. Emperor AIR 1924 Rang 173 the learned Judge pointed out the danger of construing the expression "police custody" in Section 26 of the Evidence Act in a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge observed that if such a view be taken it will be very easy for the police to evade that section and that the correct interpretation would be that

"as soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in "custody" within the meaning of Sections 26 and 27 of Evidence Act". In Haroon v. Emperor AIR 1932 Sind 149 and Pharho Shahwali v. Emperor AIR 1932 Sind 201 it was pointed out that, even indirect control over the movements of suspects by the police would amount to 'police custody' within the meaning of that section. In Gurdial Singh v. Emperor; AIR 1932 Lah 609 and in In re Edukondalu MANU/AP/0070/1957 also the same principles were emphasised and it was observed that there may be police custody without formal arrest. In this connection some of the observations of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhya MANU/SC/0060/1960 may also be noticed: The majority of Judges observed :

"Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be, said to be taken in custody : submission to the custody by word of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27 of the Indian Evidence Act."


14. Here regular investigation of the case commenced on 15-2-62 by the S.I. (P.W.20) and the Inspector of Police (P.W.22), took over charge from him on the same day. He had examined some of the witnesses on that date and interrogated appellant Paramhansa on 17-2-62. Dr. Asthana stated that in the afternoon of 18-2-62 this Inspector accompanied by the S.I. came to his office with appellant Paramhansa at about 4 or 5 p.m. left Paramhansa there and went away. Then Param-hansa made the confession at 5-30 p.m. that day. He also admitted that Paramhansa was brought by the police in a police van and that the regular police officers went away after leaving him with Dr. Asthana, but some other persons who came in the Police van were left there. Apparently he did not realise the consequence of this admission. But the Circle Inspector who knew the dangerous consequences which could flow from these admissions went to the extent of flatly denying that he took appellant Paramhansa in a Police van to the residence of Dr. Asthana in the afternoon of 18-2-62. He totally denied having met Paramhansa anywhere on 18-2-1962. It is obvious that the evidence of Dr. Asthana should be believed and this Inspector must be held to be making an untrue statement with a view to take the confession outside the scope of Section 26 of the Evidence Act. The Inspector was very careful to say that he arrested Paramhansa at 9 a.m. on 19-2-1962. But in the circumstances of this case I would hold that Paramhansa was in police custody for the purpose of Section 26 of the Evidence Act from the date of his interrogation by the Inspector on 17-2-1962 and that he continued to be in police custody when he was brought and left in Dr. Asthana's residence on 18-2-1962, at about 4 or 5 p.m. It is true that when this appellant made the confession before Dr. Asthana no police officer was near him. But some persons who came with the police in the Police van were left there. Thus there was indirect control and surveillance over the movements of the appellant by the police. This continued till the next day when the Circle Inspector came there and formally arrested him at 11 a.m. There is no doubt that the Circle Inspector adopted this clever subterfuge with a view to evade the provisions of Section 26 of the Evidence Act and he would have succeeded but for the admissions made by Dr. Asthana (P. W. 6).

15. It is well settled that once police custody has commenced, the mere fact that for a temporary period the police discreetly withdraws from the scene and left the accused in charge of some other person will not render the confession of the accused before that person admissible. Thus in Emperer v. Sheo Ram AIR 1928 Lah 282 confession before a Post Master was held inadmissible. In Mt. Hassan Pari v. Emperor AIR 1941 Pesh 22, confession before a Medical Officer in Hospital was held inadmissible under Section 26 of the Evidence Act as police custody had commenced. In Emperor v. Mt. Jagia MANU/BH/0098/1938 the very fact that the accused was in charge of a private individual after he was first taken into police custody was held to be not sufficient to render his confession before that individual admissible. Empress v. Lester ILR 20 Bom 165 and Emperor v. Mallangowda Parwat Gowda MANU/MH/0107/1917 may also be seen in this connection. The Circle Inspector took him into custody on 19-2-62. He was produced before the Magistrate at Champua on the next day on 20-2-62 for recording his confession. But he refused to confess before the Magistrate. This shows that as soon as police influence was removed, the accused would not confess. I would, therefore, hold that the confession made before Dr. Asthana at 5-30 P.M. by appellant Paramhans on 18-2-1961 in the presence of Mr. Bose (P. W. 18) and repeated next day morning before Uchhab Swain (P. W. 12) would be inadmissible under Section 26 of the Evidence Act.

16. If the confession of appellant Paramhansa is thus ruled out there is practically no corroboration of the evidence of Munari about his part in the commission of the crime. Merely because he had a strong motive to get rid of the inconvenient husband and he was seen going with the party at about 10 P.M. on the fatal night (17-12-1961) it cannot be said that he must have joined in the commission of the crime. His subsequent conduct also is not at all suspicious. He stayed at Kiriburn and Ram Murat (P. W. 13) stated that a week after the disappearance of Dukh Haran Paramhansa told him that he went to Bada Jamada station to see off Ram Jatan, Dukh Haran and Munari when they were proceeding to their native place. Munari contradicted this statement by saying that Paramhansa did not accompany them up to Bada Jamada. But she had stated before the police officer and the Magistrate at Gorakhpur that Paramhansa also accompanied the party up to Bada Jamda.

17. It is true that in the judicial confession of Ram Jatan Paramhansa has been given the most prominent part in the commission of the crime. But this confession of the co-accused which was retracted could not be used as corroboration of Munari's evidence against Paramhansa, as I shall


show presently while discussing the case against Ram Jatan Jaday.

18. I would, therefore, hold in disagreement with the Lower Courts that the charge of murder has not been established against appellant Paramhansa Jadav. Appellant--Ram Jatan Jadav.

19. The evidence against this appellant up to the stage of his going with Munari, Dukh Haran and Paramhansa towards the Bada Jamda is identical with that against Paramhansa. Munari's evidence is therefore fully corroborated up to that stage. As regards his participation in the crime the best corroboration is found in his own judicial confession (Ext. 12). He was found working in a Jute mill near Barrackpore, taken into custody and produced before a Magistrate (P. W. 21) on 16-3-62 for recording his confession. The learned Magistrate stated that he disclosed his identity gave him a warning and remanded him to jail custody for reflection. He was again produced before him the next day. The Magistrate gave him warning and further gave him three hours' time for reflection and then his statement was recorded after he was satisfied that no police officer was present in the Court room. The confession was attacked on two grounds. Firstly, it was not voluntarily made and secondly, it was not true. So far as voluntariness is concerned, the main contention of Mrs. Padhi for this appellant is that the record of confession (Exhibit 12) does not show that the Magistrate (P. W. 21) told this appellant that he was a Magistrate. But the record clearly shows that the Magistrate told the appellant that he was not bound to make a confession and that if he confessed that confession would be used against him. But the Magistrate has given evidence in Court and stated that he did tell the appellant that he was a Magistrate and he also acted him as to why he was making a confession to which the appellant replied that as he had done something wrong, he was going to confess. This oral evidence is admissible under Section 533 of the Criminal Procedure Code, (Bala Majhi v. State of Orissa MANU/OR/0007/1951. I would therefore hold that Exhibit 12 is admissible.

20. As regards the truth of the confession however, I must point out that on many essential details connected with the murder it is at variance with the evidence of Munari. Ram Jatan wanted to show that it was Munari who wanted to get her husband killed. But Munari pleaded complete innocence of any such intention. Ram Jatan wanted to ascribe the prominent part in the murder to appellant Paramhansa saying that Ram Jatan assisted him out of fear. According to him it was Paramhansa who severed the hea3 from the body. But according to Munari's evidence it was Ram Jatan who cut off the head and took prominent part in the commission of the crime having declared his intention to kill Dukh Haran prior to the party's leaving Kiriburn. Ram Jatan's confession is significantly silent as to the cutting of the right hand of the victim. Thus, in view of the studious attempts made by Ram Jatan to show that he was an unwilling accomplice in the commission of the crime it cannot be used against appellant Paramhansa.

21. But in my opinion, the confession of Ram Jatan can be used to limited extent against himself as corroborating the evidence of Munari about his participation in the commission of the crime notwithstanding the other unsatisfactory features noted above. It was, however, urged that the confession should be used as a whole and should not be accepted in part. If the main evidence against the accused is based on the confession there may be some force in this contention. But where the main evidence against the accused is that of Munari that portion of the confession which incriminates the maker may be used as corroborative of her evidence (see Bhima Shaw v. State MANU/OR/0051/1956. Ram Jatan has unambiguously admitted that he was a joint participant in the murder of Dukh Haran. According to him he caught hold of the victim and thereby facilitated his murder by his companion. His explanation that he was threatened with death by Paramhansa will not exonerate him from criminal liability. Hence, Munari's evidence against this appellant is adequately corroborated.

22. The prosecution has also relied on the fact that this appellant ran away from the place and was actually found working in Jute Mills near Barrackpore where he was arrested by the police. The labour officer of the factory P. W. 4 has stated that this appellant was working there under the name of Lakhman. This conduct of the appellant was urged by the learned Standing Counsel as an incriminating piece of evidence against him. But I find that in cross-examination this witness admitted that he had no personal knowledge of the fact that the appellant was working in the Jute Mills under the name of Lakhman. It was the clerk-in-charge of the attendance register who knew this fact. He was not examined as a witness. Even it be assumed that the appellant worked in a Jute Mill in Bengal in another name no inference of guilt can be made from


this conduct alone. By February 1962 the suspicion had fallen on both the appellants and even innocent persons may lose their balance, abscond and try to conceal their identities under a false name. I would therefore, attach no importance to the subsequent conduct of Ram Jatan while working in the Jute Mills in Bengal.

23. For these reasons the appeal of appellant, Paramhansa Jadav Under Section 302/34, I. P. C. is allowed, his conviction and sentence are set aside and he is acquitted. He shall be set at liberty forthwith. But the conviction of the appellant Ram Jatan Jadav Under Section 302/34, I. P. C. and the sentence of imprisonment for life passed for that offence on him are maintained. His conviction Under Section 201/34 is also maintained.

23a. The appeal is thus allowed in part.

Das, J.

24. I agree.

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Paramhansa Jadab and Anr. v State

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