Fakirchand Nandram v. State — 1949 DIGILAW 56 (MP)

JUDGMENT : MEHTA, J. 1. This is a Special Appeal under S.26, cl.2, Madhya Bharat High Court Act. The accused appellants Hemraj and Fakirchand are convicted under S.385, Gwalior Penal Code, corresponding to S.390, Indian Penal Code, and sentenced to rigorous imprisonment for ten years each and fine of 1 rupee each by the Sessions Judge, Ujjain. As the learned Sessions Judge found both the accused also guilty under S.292, Gwalior Penal Code, corresponding to S.302, Indian Penal Code, but could not inflict adequate sentence, he referred the case to the High Court to pass a sentence of more than 14 years or life imprisonment or death sentence. 2. The accused appellants also preferred appeal against the order of conviction and sentence under S.385, for 10 years, passed by the Sessions Judge, Ujjain. 3. A Division Bench of this Court dismissed the appeal of both the accused and maintained the conviction and sentence under S.385, Gwalior Penal Code. With regard to conviction under S.292, Gwalior Penal Code, the accused was sentenced to be hanged 4. I may here mention that the sentence of hanging passed by the learned Judges of the Division Bench is not in proper legal form. Section 302, Penal Code, and the corresponding S.292, Gwalior Penal Code, prescribes a sentence of death or rigorous imprisonment for life. The manner and method by which the sentence of death is to be carried is not mentioned in S.302,Penal Code. It appears to me surprising that the learned Judges have subsequently justified the use of word hanging. 5. Shortly stated the facts leading to this appeal are as follows: The deceased Baldeo s/o Jagannath aged 60 was residing alone at his house in Badnagar. His wife Mulibai had gone to her brother Jainarayan's house at Indore. On 14th October 1947, P.W. Kanhaiya who is a neighbour of deceased Baldeo noticed that the idol in the mandir, installed in the house of Baldeo was decked with jewels but the door of the mandir was not properly closed. The house of Baldeo was locked. There was a mysterious silence. P.W. Kanhaiya got inquisitive and suspicious so he enquired from Murli Manohar whether Baldeo Pujari had gone out of his house. Inquiry was made from one Kumbhar who used to look after the mandir in the absence of Baldeo; but no satisfactory clue could be found about the whereabouts of Baldeo. There was a mysterious silence. P.W. Kanhaiya got inquisitive and suspicious so he enquired from Murli Manohar whether Baldeo Pujari had gone out of his house. Inquiry was made from one Kumbhar who used to look after the mandir in the absence of Baldeo; but no satisfactory clue could be found about the whereabouts of Baldeo. Next day, that is, on 15th October 1947, Murli Manohar sent a wire to Jainarayan, brother-in-law of deceased Baldeo at Indore. Mulibai w/o of Baldeo and Jainarayan returned to Badnagar from Indore and saw that the doors of Baldeo's house were locked from outside. The locks were forded open by luhar Motilal. On entering inside the house Mulibai, Jainarayan and others found the dead body of Baldeo lying in a room where fuel was stored. They found injuries on the corpse and the safe was rifled. There was an incised wound in front of the neck 1" x ½" Trachea was cut. There was injury below the nipple left side. There was punctured wound 2" x 2" x ½" puncturing the spleen. 6. On 15th October 1947 at 10 P.M. Jainarayan lodged a report at the Police Station Badnagar. Mulibai gave a list Ex. P/11 of stolen ornaments on 16th October 1947 Another list Ex. P/12 of ornaments, pledged with Baldeo, was also given. On 19th October 1947, at about 8-30 A.M. accused Hemraj called P.W.4 Ramgopal to his house and the prosecution alleged that he told him that himself and accused Fakirchand had murdered Baldeo and that they had divided the properties half and half. Accused Hemraj suggested to Ramgopal to give away his share of stolen property to Sub-Inspector Dhande and save him from the consequences of the crime. On hearing this sensational news from accused Hemraj, Ramgopal became intensely nervous and spoiled his clothes. He went away to change his clothes and in the meantime informed P.W.8 Rameshwar of everything that had transpired between him and accused Hemraj. P.W.8 Rameshwar went to the Police Station Badnagar and lodged the first information report on 19th October 1947. 7. The accused Hemraj and Fakirchand were arrested by the Police on 19th October 1947. Both the accused produced the stolen properties which were buried and concealed in their houses. P.W.8 Rameshwar went to the Police Station Badnagar and lodged the first information report on 19th October 1947. 7. The accused Hemraj and Fakirchand were arrested by the Police on 19th October 1947. Both the accused produced the stolen properties which were buried and concealed in their houses. The stolen articles were identified by Mulibai wife of deceased Baldeo and by those persons to whom the ornaments belonged but which were pledged with Baldeo. One dagger (HINDI WORDS OMMITED) was recovered from the house of each of the accused, Before analysing the evidence of the prosecution, I would strongly condemn the non-examination of the Sub-Inspector Dhande who was in charge of investigation. The Police officer in charge of investigation is the most important prosecution witness. He proceeds to the spot of occurrence to investigate the facts and circumstances of the case. He has to depose how the investigation started, the dates on which the important prosecution witnesses were examined. He had to maintain a diary of investigation from day to day as the investigation proceeds. 8. The prosecution case hinges on the following facts and circumstances: (His Lordship discussed the relevant evidence and proceeded): 9-12. Now I take up the evidence of Mr. Deo, footprint expert. His evidence with regard to footprint is unreliable and inadequate. It would be hardly fair to dub him an expert in footprint because he has got no experience in this line. Prior to this case, twelve years ago he had occasion to examine footprints. He went to the spot and found that there were footprints in blood on the farsi (paved floor). He got the footprints on the farsi impressed on a plain glass, then traced them on a paper. Several people were made to walk on road filled with earth and from footprints, made on earth he compared them with the footprints traced on paper and taken from the blood stained farsi and he gives opinion that the footprints were of accused Fakirchand. Mr. Deo has not given any scientific tests from which he came to the conclusion that the footprints of Fakirchand on earth tallied with the footprints made on blood stained farsi.He has not kept the trace of Fakirchand's footprint impression on the earth on road so that a comparison can be made with the footprint trace taken from the farsi. Mr. Deo has not given any scientific tests from which he came to the conclusion that the footprints of Fakirchand on earth tallied with the footprints made on blood stained farsi.He has not kept the trace of Fakirchand's footprint impression on the earth on road so that a comparison can be made with the footprint trace taken from the farsi. He does not say whether the pad and toe impression were similarly identical. In fact he assigns very inadequate and unsatisfactory reason for coming to the conclusion that the footprints on the farsi at the scene of occurrence are those of accused Fakirchand. The learned Judges below have simply accepted the opinion of Mr. Deo as gospel truth and they could not form their own independent opinion. In a murder case before relying on the opinion of the expert as to foot. prints found near the corpse of the deceased as conclusive evidence against the accused, the Judge should form his opinion with regard to the identity of the footprints found near the corpse with the footprints of the accused. Vide Pullayya, In re, AIR (28) 1941 Mad. 88: (42 Cr.L.J. 316) and In re Oomayan, AIR (29) 1942 Mad. 452: (43 Cr.L.J. 702). 13. No reliance can be placed on the recovery of one dagger, each from the houses of the accused Hemraj and Fakirchand There is nothing to indicate that these daggers were used in inflicting injuries on Baldeo. These daggers were not sent to Imperial serologist Calcutta and hence it cannot be said they were stained with hornau blood. 14. The prosecution has sought to rely on the extra-judicial confessional statement made by accused Hemraj to P.W.4 Ramgopal. Ramgopal deposes that on 19th October 1947 at about 8.30 A.M. the accused Hemraj called him to his house and he went there accordingly. The accused Hemraj told Ramgopal to save him. Hemraj told Ramgopal that himself and accused Fakirchand had murdered Baldeo Maharaj. Half the properties looted from the house of Baldeo was taken by him and the other half share was given to Fakirchand. Hemraj told Ramgopal that the latter should give Hemraj's share of looted property to Sob-Inspector Dhande. Generally speaking, evidence of extrajudicial confession is a very weak kind of evidence. It has to be is scrutinised minutely and receives with great caution. Hemraj told Ramgopal that the latter should give Hemraj's share of looted property to Sob-Inspector Dhande. Generally speaking, evidence of extrajudicial confession is a very weak kind of evidence. It has to be is scrutinised minutely and receives with great caution. In dealing with extra judicial confessions, it should be borne in mind that a witness may easily fabricate wholly or in part a confessional statement and it is very difficult to expose the falsity. However one significant reason why I do not attach any value to this extrajudicial confession is this, that when the statement of accused Hemraj was recorded under S.342, Criminal Procedure Code, no specific question was put to him whether he had admitted before Ramgopal that himself and Fakirchand had murdered Baldeo and divided the stolen property half and half. This was the most damaging piece of evidence against the accused and it was absolutely necessary to give the accused a chance of giving his explanation in this matter. In my opinion considerable prejudice was caused to the accused Hemraj because no question about the extrajudicial confession was put to him and no conviction can be based on the want of explanation of something that was never put to the accused. Vide Dwarka Nath, v. Emperor, AIR (20) 1933 P.C. 124: (34 Cr.L.J. 922). This Privy Council ruling is followed by this Court: vide Bindraban v. Sircar, 1 M.B.L.R. 59 and Kalji v. State, 1 M.B.L.R. 92 and also In re Sogiamuthu Padayachi, AIR (13) 1926 Mad. 633 reference P.640: (27 Cr.L.J. 394). Under the circumstances I do not rely on the extrajudicial confession made by accused Hemraj to P.W. Ramgopal. 15. It is no doubt proved that ornaments and articles worth nearly twenty six thousand rupees were recovered from the house of accused Hemraj and accused Fakirchand. The police went to the house of accused Hemraj and the latter had concealed the stolen goods underneath the steps of staircase, and he produced the ornaments and articles. Similarly accused Fakirchand who had concealed the stolen property by burying it in the wall also produced the stolen goods. The stolen properties were satisfactorily identified by Munibai w/o Baldeo Maharaj and by those people who had pledged their ornaments with the deceased Baldeo. 16. Similarly accused Fakirchand who had concealed the stolen property by burying it in the wall also produced the stolen goods. The stolen properties were satisfactorily identified by Munibai w/o Baldeo Maharaj and by those people who had pledged their ornaments with the deceased Baldeo. 16. Now the most important point for decision is whether merely on the evidence of recovery of stolen property, belonging to the deceased from the house of each of the accused and without any other evidence, the accused can be convicted of murder. In In re Sogiamuthu Padayachi, AIR (13) 1926 Mad. 638: (27 Cr.L.J. 394) the two accused who were palanquin bearers, were employed in the mutt. They were convicted by Sessions Judge of murder of the Pandar Sannadhi on night of 28th October 1923. The only evidence against them consists of the fact that they produced certain properties alleged to have been stolen from the mutt and from the deceased and they made certain statements at the time of producing those properties which are admissible under S.27, Evidence Act. The Madras High Court held in this case that when the charge is that the accused committed murder or theft in a building or both, it is not legitimate to presume that the accused are guilty of the more serious offence of murder because they are unable or unwilling to explain their possession of the stolen property and when the unexplained possession of the stolen property is the only circumstance, appearing in the evidence against the accused, they cannot be convicted of murder unless the Court is satisfied that the possession of the property could not have been transferred from the deceased to the accused except by the former being murderer. In this case the accused were acquitted of the charge of murder. 17. In this case before us, there is no evidence whatsoever that both the accused had the common intention to murder. The only legitimate inference that can be drawn from the recent possession of the stolen property was that their common intention was to commit theft and if necessary to use force in commission of theft. In the absence of any evidence that there was a pre-arranged plot of both the accused to go to length of murdering the man in the commission of robbery, it would not be proper to hold them guilty of murder. 18. In the absence of any evidence that there was a pre-arranged plot of both the accused to go to length of murdering the man in the commission of robbery, it would not be proper to hold them guilty of murder. 18. In Nga Thein Pe v. The King, AIR (26) 1939 Rang. 361: (41 Cr.L.J. 44), it was held that in a case in which there are several persons involved and the question of common intention arises, great care mast be taken not to assume that the person merely found in possession of the stolen property should have attributed to him for this reason alone, a common intention respecting the guilt of murder.In Nga Thein Pe v. The King, AIR (26) 1939 Rang. 361: (41 Cr.L.J. 44), the accused along with his associates originally had merely a common intention between them to commit theft and there was never any suggestion that it was thought likely that the murder would be necessary. Nevertheless, two of the accused took deadly weapons with them and then went at night, waiting till all was quiet, to the house of the deceased; and the nature of the theft was such that the deceased was put in fear and in restraint by all of them.Held in the circumstances that the accused was guilty of robbery.In Bhikha v. Emperor, AIR (30) 1943 Bom.458: (45 Cr.L.J. 221), it was held that the mere fact that the accused produced, shortly after the murder, ornaments which were on the murdered woman is not enough to justify an inference that the accused must have committed murder. Evidence to connect the accused with the murder is necessary. In the case before us also there is no other reliable incriminating evidence which would connect the accused with the crime of murder. Merely on the recovery of stolen property of the deceased, found in possession of the accused soon after murder and in the absence of any evidence that the common intention of both the accused was to commit murder in furtherance of common intention to commit robbery, I would not be justified in drawing the inference that both the accused are guilty of murder. There can, I think, be no doubt whatever that the facts proved and particularly the possession by the accused of all the property which was the result of robbery justify an inference that they took part in the robbery. There can, I think, be no doubt whatever that the facts proved and particularly the possession by the accused of all the property which was the result of robbery justify an inference that they took part in the robbery. 19. In Basangauda Yamanappa (No. 1) v. Emperor, AIR (28) 1941 Bom. 139: (42 Cr.L.J. 697) besides the production of the ornaments of the woman who was robbed and murdered by the accused, there was direct evidence of witness Yallappa who saw the three accused coming out of the door of Jamkhandi mutt where the deceased woman lived. That evidence was relied upon as direct evidence connecting the accused with the offence on the night in question. 20. Here the circumstantial evidence of P.W.9 Deepchand. P.W.10 Misrilal and P.W.13 Pannalal is as discussed above (omitted from report - Ed.) held untrustworthy. Hence there is no other evidence to connect the accused with murder except the production of ornaments. Neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. 21. In Narayana v. Emperor, AIR (20) 1933 Mad. 233: (34 Cr.L.J. 481) the facts were that one girl Ambama was murdered in a ruined and deserted fort at some time between lamp lighting on the evening of 30th September and early morning of 1st october. Ornaments of considerable value which she was wearing on 30th September were missing from her body when it was discovered the next morning, The accused appellant admitted that along with accused No.2 they had buried the ornaments near the spot where the girl was murdered and the accused appellant produced the ornaments from the spot. These ornaments were recovered in consequence of the information given by the accused. The accused gave no explanation as to how he came into possession of these stolen ornaments and from the fact the learned Judges drew inference that the accused was guilty of murder. 22. Beaumont C.J. in Basangaud Yamanappa (No.1) v. Emperor, AIR (28) 1941 Bom. 139: (42 Cr.L.J. 697), dissented from this judgment Narayana v. Emperor, AIR (20) 1933 Mad, 233: (34 Cr.L.J. 481), particularly with regard to the inferences drawn by Madras Judges from the circumstances of the case including production of property, stolen from murdered person. 22. Beaumont C.J. in Basangaud Yamanappa (No.1) v. Emperor, AIR (28) 1941 Bom. 139: (42 Cr.L.J. 697), dissented from this judgment Narayana v. Emperor, AIR (20) 1933 Mad, 233: (34 Cr.L.J. 481), particularly with regard to the inferences drawn by Madras Judges from the circumstances of the case including production of property, stolen from murdered person. Merely because the accused refused to give explanation about the possession of property stolen from a murdered person or gives unsatisfactory explanation, no inference can be drawn that the accused committed murder in the act of theft or robbery. The accused is not bound to give explanation. A reasonable explanation of the evidence should not be rejected because it is not offered by the accused. 23. With regard to the possession and recovery of ornaments from his house the accused Fakirchand states that the accused Hemraj gave him the bundle, containing ornaments saying that it belonged to refugees and he (accused Fakirchand) should keep the ornaments, till they are sold. The explanation of accused Hemraj is that Fakirchand gave him a bundle of ornaments, stating that this represented his share of his father's property which was partitioned. There were still disputes to be settled and pending the settlement, Hemraj should keep the bundle of ornaments. We might reject these explanations for the possession of properties by the two acmeed as totally fantastic. However, merely because the accused are unable or unwilling to explain the possession of the stolen property, and when the possession of the stolen property of which the explanation is not true, is the only circumstance appearing in the evidence against the accused, they cannot be convicted of murder unless the Court is satisfied that the possession of the property could not have been transferred from the deaceased to the accused except by the former being murdered. 24. Here from the proved facts, it appears to me that the common intention of both the anoused was to commit theft in the house of deceased Baldeo and if necessary to use force in case of resistance. The legitimate inference that can be drawn is that both the accused committed robbery. But in the absence of a pre-arranged plan that both the accused had plotted to murder Baldeo in furtherance of common intention, it cannot be inferred that the common intention was to commit murder. Under the circumstances of the case the only legitimate. The legitimate inference that can be drawn is that both the accused committed robbery. But in the absence of a pre-arranged plan that both the accused had plotted to murder Baldeo in furtherance of common intention, it cannot be inferred that the common intention was to commit murder. Under the circumstances of the case the only legitimate. inference that can be drawn is that the accused were guilty of robbery. In Mahbub Shah v. Emperor, AIR (32) 1945 P.C. 118: (46 Cr.L.J. 699), with regard to application of S.34, Penal Code, their Lordships of the Privy Council have held that common intention within the meaning of S.34 implies a pre-arranged plan. To convict the accusal of an offence applying S.34, Penal Code, it should be proved that the criminal act was done in concert, pursuant to the pre-arranged plan. 25. In this case both the accused had the same intention to commit theft in the house of Baldeo and if necessary to use force but there is no evidence to suggest that pursuant to a pre-arranged plan they had common intention to murder. Under the circumstances I would allow the appeal and set aside the order of conviction under S.292, Gwalior Penal Code, corresponding to S.302, Penal Code, and the sentence of death passed by lower appellate Court. 26. It was urged by the learned pleaders for the accused appellants that this Court can hear the appeal with regard to conviction under S.385, Gwalior Penal Code. This is a special appeal to the Full Bench under S.25, cl. (2), Madhya Bharat High Court Act which provides special appeal from "a judgment passed by the Divisional Bench of two Judges of the High Court convicting the accused in the exercise of extra ordinary or appellate jurisdiction: Provided that such appeal shall lie only in the case where the sentence of death or of life imprisonment or of imprisonment for not less than fourteen years is passed or confirmed by the Divisional Bench." 27. Under these circumstances no appeal lies to the Full Bench from a conviction under S.385, Gwalior Penal Code, and sentence of ten years. The conviction under S.385, therefore, remains in tact. 28. Chaturvedi, J. -I agree. 29. Dixit, J.I agree. Under these circumstances no appeal lies to the Full Bench from a conviction under S.385, Gwalior Penal Code, and sentence of ten years. The conviction under S.385, therefore, remains in tact. 28. Chaturvedi, J. -I agree. 29. Dixit, J.I agree. The evidence of Pannalal and Misrilal who state that on the day of the murder they saw the accused coming out or entering the house of the deceased Baldeo, is not trustworthy. So also is the evidence of the recovery of daggers alleged to have been used in committing the murder. No weight can be attached to the opinion of Mr. Deo, Deputy Inspector-General of Police who in the role of a foot-print expert has deposed that the foot-prints found in the house of Baldeo were that of the accused Fakirchand's. The evidence of extra-judicial confession of the accused Hemraj before Ramgopal P.W.4 cannot be taken into consideration as the trial Court did not specifically question and ask the accused to explain the matter. It is also not safe to rely on the uncorroborated testimony of Ramgogal that the accused Fakirchand confessed to the crime. The recovery of property found to have been in the possession of the murdered person from the house of the appellants is the only circumstance appearing in evidence against them. The explanation offered by the appellants of the possession of the property is not satisfactory. But in this case it would not he right to draw from the fact of unexplained possession of the stolen property, the inference that the appellants had taken part in the offence of the murder, unless it is found that there was common intention to murder. There is no evidence of common intention to murder within S.28, Gwalior Penal Code or S.34, Penal Code. In fact the charges framed against the accused do not contain any particulars indicating to the appellants that constructive criminal liability was being fastened upon them for the offence of murder. For the above reasons, the conviction and sentence of the appellants cannot be upheld for the offence of murder. The appellants have been rightly convicted by the Sessions Judge of robbery. The learned Judges of the Division Bench in affirming in appeal the conviction and sentence of the appellants for the offence of robbery cannot be said to have convicted the accused of robbery in the exercise of their appellate jurisdiction. The appellants have been rightly convicted by the Sessions Judge of robbery. The learned Judges of the Division Bench in affirming in appeal the conviction and sentence of the appellants for the offence of robbery cannot be said to have convicted the accused of robbery in the exercise of their appellate jurisdiction. As such so far as the conviction of the appellants for the offence of robbery is concerned, the accused have no right of appeal under S.25 (2), High Court Act.