Ratan GOND v. The State Of Bihar

Judgment

CRIMINAL APPELLATE JURISDICTION: -‘Crifinal Appeal No. 76 of 1958.

Appeal by special leave from the judgment and order dated March 4, 1958, of the Patna High Court in Criminal Appeal No. 50 of 1958 and Death Reference No. of 1958 arising out of the judgment and order

Ratan Gond v. The State of Bihar dated January 18, 1958, of the Court of the Ist Addi- .

tional Judicial Commissioner of, Chotanagpur at

Ranchi in Sessions Trial No. XC of 1957. B. R? L. Iyengar, for the appellant.

e

Ratan Gond ; ve The State of Bihar

R. H. Dhebar, for the respondent. * ,

1958. September 19. The Judgment of the Court was delivered by —

S. K. Das J.—This is an appeal by special leave. The appellant is Ratan Gond, aged about 28 years. Tried on a charge under s. 302, Indian Pena] Code, he was convicted and sentenced to death by the learned Additional Judicial Commissioner of Ranchi in the State of Bihar. The learned Additional Judicial Commissioner submitted the record to the High Court of Patna for confirmation of the sentence, as he was required to do under the provisions ofs. 374 of the Code of Criminal Procedure. Ratan Gond also preferred an appeal to the High Court. The appeal and the, reference under s. 374, Criminal Procedure Code, were heard together by a Division Bench of the said High Court and it accepted the reference and dismissed the appeal thereby confirming the sentence of deat.n passed upon the appellant. On May 19, 1958, the appellant prayed for and obtained special leave and then filed’ . the present appeal in pursuance of the leave granted to him. .

The facts lic within a nafrow compass. The appel-* lant was a resident of village Urte, Tola Banmunda, police station Kolebera in the district of Ranchi. One Mst. Jatri (P. W. 2), who was a widow, also lived in the same village and same Tola. She had two young daughters, one named Baisakhi and the other named Aghani. Baisakhi was about nine years old and Aghani about five years old. The subject of the present appeal is the murder of the girl Baisakhi. On a Tuesday, May 7, 1957, the two sisters, Baisakhi and Aghani, had gone out to pluck wild berries in a_ hilly jungle situated at a short distance from their village, the distance being estimated variously by various witnesses frém 300 yards to a little more than a mile. We may give here some idea of the location of the village and the hilly area near if. Accordiag to the evidence of Rup Rem (P. W. 1), uncle of the two girls, Tola Banmunda consists of about 40 houses. Ata short distance to the north, there is a hilly tract"known wv 8 e

S.C.R. SUPREME COURT REPORTS’ 1339 as Amtis Chua dill. Close to the hill, there are jungles 1958 on two sides and there #s aso a spring or wellin paren Gond between the two strips of jungles. On Tuesday, Mst. v. Jatri (P. W. 2) had herself gone to pluck berries rhe State of Bihar known as Keond berries at another place. When she —~ left the house in the morning, her two daughters*were * * 24s J: in the house. Mst. Jatri came back at about noon and found Aghani alone in the house. She enquired from Aghani about the elder sister Baisakhi and

Aghani made certain statements to her mother as well as to other persons later that day and the next day.

Aghani, however, died within a few months of the occurrence, before her statements could be recorded in a judicial proceeding. The courts below have referred to,eand the High Court has relied on, the statements of

Aghani. One of the points urged on behalf of the appellant is that the statements of Aghani were not admissible in evidence either under s. 32 or s. 33 of . the Evidence Act (1 of 1872). As we are of the view

~ that this contention is correct, we are omitting all ‘reference to the statements of Aghani in stating the facts of the case. When Baisakhi did not return to the house even in the evening ,Mst. Jatri wentin the direction of Amtis Chua hill, but could not find

Baisakhi. Next morning, information was sent to Rup

Ram (P.W.1) about the fact that Batsakhi was missing, Rup Ram having gone to village Targa for making tiles on the preceding Monday. Rup Ram came back to Banmunda on Wednesday, May 8, 1957..

In the meantime certain other villagers including

Dalpat Sai (P. W. 4), mukhia of the village, and Sohar

(P. W. 5), chaukidar of the village, had been informéd that Baisakhi was missing. Aghani took Rup Ram and these villagers tothe foot of Amtis Chua hill and showed them the spring or well. This village party . found the headless body of Baisakhi at a short distancg from the aforesaid spring. The body was ° identified by Mst. Jatri and others asthe dead body of Baisakhi by reason of the white saree of yellow border which Baisakhi was wearing, five red “ churis” -~/ round the,right hand, twored “churis” round the * 170 ’

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1340 “SUPREME COURT REPORTS [1959]

left hand, one “ bera ” round the leff hand, one brass ring on the left finger afd ¢ertain beads of a “mala” which Baisakhi had pit on. When the headless dead

The State of Bihar body was discovered and identified, Dalpet Sai left some of his companions to guard the dead body and went’to the house of the appellant, but did not fisd him there. He then sent Rup Ram and the chaukidar to the police station which was at a distance of 43 miles. He also sent some voluntoors of the Gram Panchayat to look for the appellant. On Thursday, May 9, 1957, at about 10 a.m., Rup Ram and the chaukidar appeared at the police station of Kolebera and Rup Ram gave an information, which was recorded by the Assistant Sub-Inspector of Police. This information referred to the statements of Aghani and to the other facts which had been discovered by that time. On the same Thursday, the appellant was found in the house of his sister’s husband in another village called Karmapani. The appellant was caught hold of by the village volunteers and brought back to village Banmunda on Thursday. At about lor 2 p.m. on that day, he was questioned by Dalpat Sai (P.W.4) mukhia of the Gram Panchayat, Krishna’ Chandra Singh (P. W. 7), Sarpanch of the Gram Panchayat, and Praduman Singh (P. W. 13), one of the panches of the Panchayat, and it is stated that the appellant made an extra-judicial confession to these persons to the effect that he had killed the child Baisakhi for greed of money, as acontractor who was building a bridge on the Lurki river had offered Rs. 80 for a human head. The appellant was detained by the aforesaid village authorities till the Assistant Sub- Inspector of Police arrived at tho village on Friday, May 10,1957. The Assistant Sub-Inspector arrived at about 3a.m. He was taken to the place where the headless dead body of Baisakhi lay. The Assistant Sub-Inspector made an inquest on the dead body and seized the articles found there including 29 Beads of the “mala” which Baisakhi ‘was wearing and which lay scattered near the place. The Assistant Sub- Inspector ‘of Police arrested the appellant, who was already in custody of the mukhia. “The house of the ow

8.C.R. SUPREME COURT REPORTS: 1841 appellant was,then searched and a sharp cutting weapon called “ balua’”” was found in the north facing room of the house, between a wall and the roof. This

958.

. v. “balua ” had certain blood-stains on it, but the stains rhe state of Bihar having disintegrated, the origin of the blood could not be determined. It is stated that on being questioned where the head of the girl Baisakhi was, the appellant took the Assistant Sub-Inspector of Police and some of the villagers to a place at a short distance of 100 yards or so from where the dead body was. At that place were discovered some strands of bloodstained hair which were seized by the Assistant Sub- Inspector of Police. The strands of hair looked like the hair on the head of a female person and the Chemical Examiner later reported that the strands of hair were stained with human blood and “appeared to be scalp hair of human (female) origin morphologically”. After further investigation by two different Sub-Inspectors of Police, the appellant was sent up for trial. There was an enquiry by a Magistrate of

- tHe first class, who, at the conclusion of the enquiry, committed the appellant for trial by the Court of Session. ;

The defence of the appellartt was that he had been falsely implicated. He denied that he killed Baisakhi near the jungle at Amtis Chua hill. He.furfher denied that he had made any extra-judicial confession to Dalpat Sai, Krishna Chandra Singh and Praduman Singh. He denied that any blood-stained weapon was found in his house by the Assistant Sub-Inspector of Police and he also denied that he was absent from his village or was found in the house of his sister’s husband in village Karmapani.

The learned Additional Judicial Commissioner, as also the High Court, rightly stated that the case against the appellant rested on (a) circumstantial

- evidence and (b) the extra-judicial confession stated to hav8 been made by the appellant. The courts below concurrently held that the extra-judicial confession was voluntary and it did not appear to them to have been, caused by any inducement,: threat or promise h&ving reference to the charge made against °

1958 the appellant so as to attract the prdvjsions of s. 24 RatanGong Of the Evidenco Act. eThey further held that the confession, though later denied by the appellant, was

The State of Bihar 8ufficiently corroborated by the circumstantial evidence — and the confession and the circumstantial evidence S. K. Das J. yead .together led to only one reasonable inference, namely, that the appellant had killed the child

Baisakhi in the hope of getting some money.

It is not disputed that in an appeal filed by special leave under Art. 136 of the Constitution it is not normally open to the appellant to raise questions of fact or to ask for interference by us with concurrent findings of fact, unless the findings are vitiated by errors of law or the conclusions reached by the courts below are so patently opposed to well-established principles as to amount toa miscarriage of justice. Mr. Iyengar for the appellant has urged before us three main points. Firstly, he has submitted that the extra-judicial confession said to have been made by the appellant is not admissible in evidence. Secondly, he has contended that even if admissible, there is 1fo guarantee of its truth. Thirdly, he has submitted that even with regard to circumstantial evidence, the courts below have relied tn inadmissible evidence, with particular reference tothe statements of Aghani, to establish one of the circumstances, namely, that the appellant was last seen with Baisakhi oefore her murder. His argument is that the other circumstances established against the appellant, namely, the recovery of the blood-stained “‘balua”’, of the blood-stained hair and the absence of the appellant from the village om Wednesday, do not carry the case against the appellant far enough so as to complete the chain and make them inconsistent with any hypothesis other than the guilt of the appellant. He has submitted that in considering the circumstantial evidence in this e case the ‘courts below have departed from the wellestablished principle that the circumstances affirmatively proved against an accused person must be of such a character asto be consistent orly with his guilt and inconsistent with any reasonable hypothesis

* of his innocence. ° °

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8.C.R. SUPREME COURT REPORTS 1343

Before we gxamine the aforesaid submissions, it is necessary to state that the finding of the courts below that Baisakhi was murdered seme time between May 7 v.

and May 8, 1957, and that the headless dead body which ris state of Bihar was discovered on May 8, 1957, was correctly identified as the dead body of the girl Baisakhi has not been challenged before us. The post-mortem examination on the dead body was held on May 11, 1957, and the ante-mortem injuries which the doctor found were (1) complete severance of the head from the neck, (2) one incised wound on the left shoulder and (3) an incised wound on the left upper arm. The doctor’s evidence makes it quite clear that the unfortunate girl was brutally done to death. The identification of the headless dead body also rests on a very sure oundation.. We have already referred to the clothing, ring, beads, etc., from which the identity of the dead body was established. The murder of the - girl Baisakhi having been clearly established, the courts below rightly applied their mind to a consideration of the principal question in the case, namely, if the appellant was responsible for that murder.

This brings us to a consideration of the submissions made on behalf of the appelfant. We may say at tho very outset that we agree with learned counsel for the appellant that the statements of Aghani, who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under s. 32 or s. 33 of the Evidence Act. Section 33 is clearly Gut of the way because Aghani made no statements in a judicial proceeding or before any person authorised by law to take her evidence. The only relevant clause of s.32 which may be said to have any bearing is cl. (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction whfich resulted in hi§ death. In the case before us, the statements made by Aghani do‘not relate to the cause of her death or to any of the circumstances relating to, her death; on the contrary, the statements-relate to the death ofher sister. We are, therefore, of the opinion

S. K, Das f.

1958 that the statements do not come withifé g. 32(1) of the —_ Evidence Act and, indeed, Mr. Dhobar appearing on behalf of the State, has eonceded that s. 32(1) does not The State of Bikar *pply to the statements of Aghani. Excluding tho statements of Aghani, what then is S. K. Das J. the evidence against the appellant? Firstly, wo have the extra-judicial confession. Then, we have the following circumstances which the courts below have held to have been clearly established against the appellant, namely, (a) recovery of the blood-stained * balua ” from a room of the appellant, (b) recovery of the blood-stained strands of hair from a place pointed out by the appellant and (c) disappearance of the appellant from the village immediately after the murder and his arrest in village Karmapani in circum; stances mentioned by Maheshwar Sai (P. W. 6). Lastly, there is another adverse circumstance which arises out, of the total denial by the appellant of the recovery of the blood-stained “ balua ” and of his arrest in village Karmapani. As to the extra-judicial confession, two questions arise: is it voluntary, and, if so, is it true? The appellant denied at a later stage that; he had made aconfession, but it is not necessary fo consider in this case the abstract question as to whether; as against its maker, a conviction can be based on a confession which is found to be voluntary and true. It is enough to state that usually and as a raatter of caution, courts require some material corroboration to such a confessional statement, corroboration which connects the accused person with the crime in guestion, and the real question which falls for decision in the present case is if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant, in case we hold that . the confessional statement is voluntary and true. Let us first see if the confession was voluntary. ° Section 24 df the Evidence Act states:

“A confession made by an accused perstn is irrelevant in a criminal proceeding, if the making of the.confession appears to the Court to have been caused by any inducement, threat or promise having feference to the charge against the’accused person, et

8.C.R. SUPREME COURT ‘REPORTS 1345 proceeding frem a person in authority and sufficient, 1958 in the opinion of the Coust, 80 give the accused person pian Gond grounds which would appear to him reasonable for v. supposing that by making it he would gain any The State of Bihar advantage or avoid any evil of a temporal nature in — reference to the proceedings against him”. S. K. Das J. Mr. Iyengar has referred us to the evidence of the three witnesses, Dalpat Sai (P.W. 4), Krishna Chandra

Singh (P. W. 7), and Praduman Singh (P. W. 138), Mukhia, Sarpanch and Panch respectively of the

Gram Panchayat. We agree with Mr. Lyengar that having regard to the provisions of the Bihar Pancha- yat Raj Act (Bihar VIII of 1948) the aforesaid three persons can be said to be persons in authority within the meaning of s. 24. The question, however, is—are there any circumstances which tend to show ‘that the making of the confession appears to have been caused by any inducement, threat or promise, having refer- ence to the charge against the appellant and proceed- ing from any one of the aforesaid three persons and sufficient in the opinion of the court to give the appel- lant grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

The courts below have categorically answered this question in the negative. . We have examined the evi- dence of the three witnesses mentioned above. That evidence shows that the appellant was brought to the house of Dalpat Sai (P. W. 4) at about 10 a.m. on Thursday (May 9, 1957). He was questioned for some time ;, Dalpat Sai (P.W. 4) said that he was questiéned for about two hours. The evidence of Dalpat Sai makes it clear, however, that it was not a pro- cess of continuous questioning for two hours. Ratan was given some food and then, when he was questjoned, -he kept quiet for some time and then be said that he had killed the girl because the contractor who was building the bridge on river Lurki had offered to pay asum of Rs. 80 for a human head. Having examined the evidence of the three witnésses who prove the extra-judicial confession, we do not come to

Ratan Gond v

1346 SUPREME COURT REPORTS _ [1959]

@ conclusion different from the one arrived at by the courts below. Mr. Lyeng&r referred us to the observations made by Cave J. (As he then was) in The Queen

The State of Bihar V. Thompson ('). That was a case in which a prisoner

S. K. Das f, was tried for embezzling the money of a company. It was proved at the trial that, being taxed with the crime by the Chairman of the company, the prisoner said that he had taken the money. The Chairman stated that at the time of the confession, no threat or promise was made, but he said to the prisoner’s brother, “ Tt will be the right thing for your brother to make a statement ” and the court drew the inference that the prisoner, when he made the confession, knew that the Chairman had spoken these words to his brother. In these circumstances, the learned Judge said: “JI prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner’s statement was free and voluntary, and that they did not discharge themselves of this obliga- tion”. He further added that there were always, reasons to suspect those confessions which were supposed to be the offspring of penitence and cemorse, and which nevertheless were repudiated by the prisoner at the trial. It is true that in the case under our con? sideration the appellant denied to have made the confession whiclr he had made earher ; but we find no such circumstances as were present in Thompson’s case ('), such as the statement of the Chairman of the company to the brother of the prisoner. It is true that the appellant was brought back from village Karma. pani by members of the village volunteer force. He was*taken to the village authorities to whom he made a confession. The evidence does not even remotely suggest that any threat, promise or inducement was made. The only circumstance relied on by Mr. lyengar is that it took about two to three hours from the time when theappellant was brought to the house of the mukhia up to the time when he made his confessional statement. Mr. Iyengar has relied on In re Kataru Chinna Papiah(*}, where a Superintendent of Police questioned the accused person for four hours at night (1) (1893) 2 Q. B, 12, 18. (2) ALLR. 1940 Mad. 136.

§.0.R. SUPREME COURT REPORTS 1347 and again for “two hours in the morning. It was pointed out that this was atflagrant violation of the relevant rule in the instructions issued to police officers.

All that we need say is that there was no such ques- rhe state of Bihar tioning in the present case. Another decision to whic Mr. Lyengar has invited our attention is Hashmat

_ Khan v. The Crown ('). Wedo not think that that decision is of any assistance to Mr. lyengar. It was held therein that a mere possibility of there having been some inducement is not sufficient to attract s. 24 of the Evidence Act; but only when it appears to the court’ that the confession has been made as a result of some inducement held out by a person in authority that it becomes irrelevant. That was a case in which the accused person, when questioned, was told that it would be better for him if he told the truth; it was held that this amounted to an inducement within the meaning of s. 24 of the Indian Evidence Act.

As to the truth of the confession, nothing has been brought to oyr notice which would show thatthe confessional statement contained any untrue or inaccurate statement. It is true that the prosecution has given no evidencé to show that the contractor who was building the bridge over river Lurki, or for that matter, any contractor, had offered a sum of Rs. 80 for a human head. In the very nature of things, it is not expected that any contractor, even if he had made such an offer, will admit having done so, and we do not think that the prosecution can be asked to give evidence in support of any such offer. We recognise that in ordinary and normal circumstances nobody asks for a human head for building a bridge; nor is it usual normally for a person to accept such an offer, even if it is made. We must not forget, however, that we are dealing inthis case with aboriginal people who are still steeped in superstition. It is worthy of note that Maheshwar Sai (P. W. 6) said that when the appellant was taken in custody in village Karmapani, he did not even enquire why he was arrested; on the contrary, he offered Rs. 20 and a he-goat to the witness and

(1) (1934) LL.R. 15 Lah. 856. ‘os

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S.K. Das J.

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Ratan Gond v. The State of Uihar implored the latter to save him. Sitch a statement was again of an incriminatory nature, and if the evidence of Maheshwar Sai is correct, the statement was absolutely voluntary and was not the result of any questioning at all. For these reasons, we do not think that the reference to an offer of Rs. 80 for s hyman head in the confessional statement of the appellant necessarily destroys its veracity.

There can be no doubt that the recovery of the blood-stained “ balua ” (even though the origin of the blood could not be determined owing to disintegration) and of the blood-stained strands of female hair at the place pointed out by the appellant, are circumstances clearly proved against the appellant. These circumstances may not be sufficient by themselves to prove that the appellant was the murderer, but there is no doubt that they lend assurance to the confessional statement of the appellant, assurance of a kind which connects the appellant with the crime in question. This is a case in which the confession and the circumstances have to be read together. There is thé additional circumstance that soon after the murder the appellant disappeared from his village and when arrested in another village, his conduct was such as to show that: he was suffering from a guilty mind. On the top of al] this, there is the total denial by the appellant that any blood-stained “ balua ” was recovered from his house or that he disappeared from the village after the murder. It is unfortunate that tho learned Additional Judicial Commissioner did not ask the appellant to explain the recovery of the blootl-stained strands of female hair. That was an important circumstance against the appellant and when the learned Additional! Judicial Commissioner examined the appellant under the provisions of s. 342 of the Code of Criminal Procedure he should have asked the appellant to explain this circumstance. We take this opportunity of inviting the attention of the léarned Additional Judicial Commissioner to this very serious omission. Another omission on the part of the learned Additional Judicial Commissioner is his failure to ‘comply with the provisions of s, 287 of tht Code of

» a © ge S.C.R. SUPREME COURT REPORTS 1349 Criminal Procedure. The examination of the accused recorded by or before the Corhmitting Magistrate does not appear to have been tendered by the prosecutor

Ratan Gond v.

in the present case ; at least we do not find any such The State of Bihar statement in the printed paper-book. We are satisfied, however, that no prejudice has been causede The Assistant Sub-Inspector of Police who gave evidence of the recovery of blood-stained hair from a place pointed out by the appellant was not even cross-¢xamined on the point. The defence of the appellant was a total denial and even ifthe recovery of the blood-stained strands of female hair was put to the appellant, he would undoubtedly have denied such recovery a8 having been made at his pointing out the place.

- Tosum up: we see no reasons to differ from the conclusion arrived at by the courts below that the confessional statement made by the appellant was voluntary and admissible; there are no reasons for thinking that it was not true. The circumstances clearly proved against the appellant, even excluding the circumstance which rested on the statements of Aghani, afford sufficient corroboration to the confession of the appellant, though denied at a later stage, and the corroboration is of such a nature as to connect the appellant with the murder of the: child Baisakhi. The only reasonable inference which can be drawn from the confession read with the circumstantial evidence is that the appellant killed the child Baisakhi between May 7 and 8, 1957, in the hope of getting some money. Whether that hope was realised or not is more than we can tell. The head was never recovered, but there can be no doubt that the dead body was correctly identified to be the dead body of the child Baisakhi,

As to the sentence, in view of the circumstances in which the child Baisakhi was killed, we do not think that we shall be justified in interfering with it in the present case. For these reasons, we hold that the appeal is without merit and must be dismissed.

° : Appeal dismissed. «

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