Bali alias Balmiki and another vs State of Madhya Pradesh

Y.B. Suryavanshi, J.

The appellants Bali alias Balmiki and Ramdas, both sons of Moujilal Gauli have preferred this appeal against the judgment dated 7-1-1984 in S.T. No. 58/83 of the Court of Shri M.A.S. Khan, A.S.J., Betul. Both the appellants have been convicted u/s 302, Indian Penal Code and sentenced to undergo imprisonment for life. The third co-accused Raghunath has been acquitted by the trial Court.

It is common ground that the appellants are real brothers. The co-accused Raghunath is their nephew. Both the appellants reside in the village Kodaroti in the same house. The co-accused Raghunath also reside in the same village, but in a different house. Kamjilal (deceased), who resided in a neighbouring village Kamlapur, had two daughters. One of them is married to PW 12 Ramprasad; the other daughter Dhannobai, prior to 8 or 10 years before the occurrence, was married to the appellant Ramdas. Their marital life was not happy. Dhannobai initiated maintenance proceedings u/s 125, Criminal Procedure Code, and on 17-8-1982, was awarded Rs. 100/- as maintenance (Ex. P-48). The appellant Ramdas, in the year 1980, had filed a petition for divorce in the Court of D.J., Betul which was decreed on 15-9-1982. But there too, the Court awarded maintenance u/s 25, Hindu Marriage Act @ Rs. 50/- (Ex.P49). Pausing here, we may mention that the date of decree is relevant because alleged incident of murder is said to have occurred on the next day i.e. 16-9-1982.

According to the prosecution, Kamjilal (deceased) had a grand-daughter, called, PW-3-Asha, then aged 2 1/2 years (daughter of PW-12 Ramprasad) who mostly lived with grand-father and used to call him Daji. Sometime, late in the afternoon, on 16-9-1982, Kamjilal with the child Asha, left village Kodaroti for village Hamlapur, but at about 8 p.m., PW-12 Ramprasad found his daughter Asha crying outside the house and she stated that "someone" had assaulted Dada who is lying; but she did not coherently narrate the incident. PW-12 Ramprasad apprised the village Kotwar who advised him to visit Hamlapur for verification. Accordingly, PW-12 Ramprasad, with his elder brother PW-1 Shiv and Mangal Kotwar, went to Kodaroti village and found that he Kamjilal has not returned. Then PW-12 Ramprasad went to P.S., Betul. His report about the missing person (Ex.P-1) was recorded at 3.55 a.m. on 17-9-1982 by PW 15 Shiv Pratap Singh, A.S.I. who suspected some incident of marpeet, deputed a constable for enquiry. P.W.-19 Shri Rana, A.S.I. visited the village Kodaroti at about 10 a.m. on 17-9-1982 and nude some enquiries. On getting some clues about litigation with Ramdas (Appellant), Kotwar was sent to call him. Appellant Bali alias Balmiki appeared and informed that Ramdas was not available and therefore, PW-19 Shri Rana interrogated first the appellant Bali. But meanwhile, the appellant Ramdas had also arrived. Raghunath co-accused) who had gone for grazing the cattle was also sent for.

All the three accused were (sic) by Rana (ASI) on 17-9-1982 in the presence of PW: Motilal and Harcharan (Arrest Memo Ex.P-2). It is further alleged, that appellant Bali gave information that three of them have murdered Kamjilal and his head and both hands had been dismembered; that the torso (trunk) along with the clothes worn by deceased have been tied with stones and all the parte have been thrown away into the deep waters of the river Machhna. Appellant Bah also disclosed that an axe used in the incident has been kept on Manda (platform of a watch-tower in a field); that he would lead them to recover those articles. It is stated, that the other two accused Ramdas and Raghunath made similar disclosure-statements (information Memoranda Exs. P-4 and P-5, respectively). The A.S.I. Rana and witnesses were first taken by three accused to a place where the dead body was kept for some time before being dismembered. From that place, blood-stained earth and some leaves with blood-stains were seized (Seizure memo Ex. P-9). The appellant Bali had taken the police and the witnesses to his field and from the Manda he took out and produced blood-stained axe (Article I) which was duly seized (Seizure Memo Ex. P-10).

It is further alleged, that all the three accused then led the police to a place in the river Machhna. Some persons were asked to go into deep waters, and one limb i.e. one hand was thus recovered which was said to be the right hand. This recovery is shown to be at the instance of the accused Ramdas (Seizure memo Ex. P-11). Then a trunk was found which was tied with stones and clothes. A Panchanama Laash (Ex.P-14) was drawn and a separate Seizure memo Ex. P-15 was drawn in respect of the clothes viz. Baniyan, Dhoti and Kameez (Articles C, D and E). On the same day i.e. 17-9-1982 the trunk and one hand were sent for post-mortem examination. They were examined on 18-9-1982 by Dr. M.L. Verma (PW-14). It is further alleged, that the search for the second limb i.e. hand and the head continued on 18-9-1982. On that day a hand was seized, and Shri Rana, Investigating Officer attributed this seizure at the instance of the other two accused viz. Bali and Raghunath (Seizure memo Ex.P-22). To recall, Ex.P-22 records that the right hand has been recovered by the seizure of the other hand on the previous day i.e. Ex. P-11 dated 17-9-1982 also records the seizure of right hand.

On 19-9-1982, Shri Rana, I.O. (PW-19) made a discovery and seizure of one more hand from the waters of the river. The recovery of "third hand" was shown at the instance of accused Raghunath, (Ex. P-25). To recall, two hands were already seized on two preceding dates, vide Exs. P-11 and P-22. It further seems that though the two hands were seized on 18th and 19th September, 1982, only one hand on 19-9-1982 was sent vide Requisition Ex. P-26 for examination by Civil Surgeon. PW-18 Dr. J.L. Agrawal opined, that the hand sent to him for examination appeared to have been severed from the body a week before and it was of a "male". It is further stated, that on 21-9-1982, about 2 to 3 kilometres away from the place of the river Machhna, where the trunk was recovered, a human head, in mutilated condition, was recovered from the waters. According to Shri Rana, I.O. this seizure and pursuant to the information given by accused Bali of having thrown the head at that place in the river. But, admittedly, no information memo relating to this discovery/seizure was recorded. Statements of some material witnesss including alleged eye-witnesses were recorded by Rana, I.O. (PW.19) on 17/18-9-1982. The blood-stained axe, the blood-stained leaves and earth, which were duly sealed after seizure, were sent to F.S.L., Sagar vide Ex.P-39 dated 23-11-1982. According to the reports, human blood was cofirmed on the blood-stained earth and the leaves. The axe (Article I) had blood, but its "origin could not be determined due to disintegration". During investigation, Patwari had prepared the map of the place of the incident which is Ex. P-30. The litigation referred earlier is said to be the motive for committing murder. All the three accused were charge-sheeted u/s 302/201, Indian Penal Code.

All the accused denied the charges under sections, 302, Indian Penal Code, and stated that they have been falsely implicated. The defence case was, that the witnesses have stated due to the influence of the police; some minor injuries on the accused Bali were due to beating by the police and on his complaint to the Magistrate, he was medically examined, though belatedly; that according to Ramdas, after the divorce, no dispute survived between him and his wife. The prosecution case rested under three heads :

(i) Direct evidence;

(ii) Circumstantial evidence, mostly about recoveries;

(iii) The motive.

(i) Direct evidence :

PW-5 Jayabai who lived with her father in the vicinity of the place of the incident had denied having seen any incident. She further stated, that she does not know those accused nor she had seen any assault PW-6 Manna also denied having seen any incident. Similarly, PW-7 Dayaram, whose field is located on the way from Garha to Kodaroti, had also denied having seen any incident of assault. All those three witnesses were confronted with their police statements. (Exs. P-43, P-44 and P-45, respectively) which they have totally disowned. Turning to the statement of PW-3 Asha (a child, estimated about 4 years old when examined) stated and identified in the dock all the three accused having assaulted her grand-father. She even stated their names. But when further questioned, Bali was identified as Raghunath; and Raghunath was identified to be Ramdas. When further questioned, she stated that she does not know their names and cannot identify either. She stated that her grand-father i.e. Daji was assaulted by lathis and axe when she was sitting on his shoulders but after the assault with lathis and axe, she fell down. Ultimately, one of the assailants covered her head with a blanket, and left her near her house at Kodaroti. At the time of the incident, she was hardly 2� years old. Therefore, her evidence is also of no assistance to the prosecution. Still another witness is PW-9 Punjab. He too is a "child witness" aged 13 years. His version is that while he was going to a field in the company of Salikram, to eat lemons, PW-5 Jayabai came running and informed that a person is being assaulted by 3 persons. Then this witness, with others, went towards that field. He claims to have heard some noise of assault and had even seen from a distance of about 50 yards, 3 persons assaulting a man who had fallen down. According to Para 3, he identified all those 3 accused in the dock being the assailants. He also mentions the presence of Manna (PW-6) near the place of assault. Para 7 of the cross-examination shows material omissions in his diary statement. His police statement was also recorded belatedly. On his own showing, after about 8 days he disclosed this incident to this Headmaster. Moreover, as observed by the trial Court, this witness on the eve when evidence was recorded, stayed together with Ramprasad (PW-12), who is son-in-law of the deceased. Beating in mind that he is a "child witness", whose evidence has to be approached with caution and also considering the serious infirmities in his evidence, his statement has been rightly discarded; and thus the learned trial Court has given findings on basis of circumstantial evidence and the motive only.

(ii) Circumstantial evidence:

The other findings by the trial Court are : that the dismembered parts were of the body of Kamjilal, who met homicidal death; that the recovery of trunk and one hand was on basis of "joint and simultaneous statements" given by all the three accused (Para 21 of the Judgment); that the recovery of the head and another hand on 18-9-1982 has not been proved by clear and cogent evidence at the instance of any particular accused (Para 22 of the Judgment); that Investigating Officer had drawn those "false documents which can only be explained away on a view that this has been done in order to create evidence against all the accused to complete the prosecution case"; that the blood-stained axe was recovered from the possession of accused Bali, though the Serologist was not able to determine the origin as scrapings were disintegrated. Thus, the recovery of an axe was the incriminating circumstance; that so far as the accused Ramdas is concerned, the litigation furnished a sufficient motive; that the accused Bali being brother of Ramdas, was a "committed brother" (like Laxman of Epic Ramayan) and an axe has also been recovered. Therefore, inferences have to be drawn against both those accused. (Para 31 of the Judgment). But the circumstance about the motive is not applicable in the case of accused Raghunath, though he also made joint disclosure-statement leading to the recovery of the trunk and a hand from the river. Trial Court''s observations in Para 29 of the Judgment are asunder :--

Accordingly, the two appellants have been convicted, and co-accused Raghunath has been aquitted.

The learned counsel for the appellants Mr. Ali and Shri B.P. Singh, learned Government Advocate for the State, heard at length.

Firstly, it was submitted that the prosecution evidence has failed to prove the death of Kamjilal, muchless, that it was homicidal. The learned trial Court had rightly observed in Para 8 of the Judgment that dismembered parts were recovered/seized on different dates, and the opinion of the doctors was not elicited on basis of putting them together. The head was mutilated and beyond recognition. The parts of the body were highly decomposed. However, it has come in evidence that Kamjilal had some boil which had left a white scar on his leg. PW-1 Shiv, PW-13 Rampyari (respectively elder brother of son-in-law and wife of the deceased) have identified this scar-mark on the leg. Furthermore, PW-12, Ramprasad had deposed that on the day the deceased left, he was wearing Article E-Dhoti and Article D-Shirt. Rampyari had also identified those clothes as belonging to her husband. The deceased had left with the child in the afternoon and the child was found in the night near her house. So far as the presumption of death is concerned, 7 years'' time has not elapsed. But the deceased had no reason to abandon the child and go away elsewhere. In the totality of these circumstances, we have no reasons to disbelieve the evidence of near relations who have identified the torso being that of Kamjilal on basis of white scar-mark and the clothes which were tied around the trunk with stones so that the body may not appear floating after sometime. The medical evidence, obviously, does not state the cause of death. Yet the circumstances of dismembering the body itself lends assurance to the inference that the death was not natural but homicidal. Hence, we concur with the finding by the trial Court that it was the dismembered body of Kamjilal; and that the death was homicidal.

Secondly, it was submitted that u/s 27 of the Evidence Act, "joint and simultaneous statements are inadmissible". The principal contention is, that all the three accused were interrogated by the I.O., and their statements were recorded, and all have disclosed that the dead body was thrown in the Nala after being dismembered. Thereafter, all the three led the police party to the river from where the alleged recoveries were made. This information was by all and the recovery is also shown to be by all the accused. The question is, whether such and simultaneous statement leading to recovery is admissible? Section 27 of the Evidence Act provides :

When any fact is deposed to as discovered in consequence of information received from a person accused of an offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

There are various decisions to the effect that where information is given by "several accused", it is only the information which is first given that is admissible, and "once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of an information received from another accused person". It will suffice to cite two decisions on this point.

In State Government of M.P. vs. Chhotelal Mohanlal, 1955 NLJ 239 : AIR 1955 Nag. 71, (Bhutt and Tambe, JJ.), it was held, that simultaneous statements made by accused persons are not per se inadmissible in evidence and are liable to be considered if the discovery made in consequence thereof affords guarantee about the truth of the statements. That was a case of the theft of bales from the train. Evidence was sought to be given that two of the accused A and B had made certain simultaneous statements to police in consequence of which the five bales of cotton, the subject of offence, were discovered. As statement was to the following effect "I and B have kept (them) hidden at mile 313 in the jungle near the railway line, 3 bales in the nala and 2 bales in the bushes. I can go and point out them. B and I together have concealed the bales for which I shall go and point out". B''s statement was as follows : "All these 5 bales were kept hidden on the same day in the night before sun-rise. 1 am prepared to go and point I may be excused." The two accused then took the police to the spot. A then pointed out two places wherefrom two bales of cloth were recovered. B then pointed out another place wherefrom three bales of cloth were recovered. Though the giving of information was simultaneous and the recording of their statements was part of the same transaction there was no satisfactory evidence to show as to who made the statement first. Held, that, in the circumstances, the respective statement made by each of the accused was admissible against him as the pointing out of the different places by the different accused afforded some guarantee about the truthfulness of their statements.

The above decision followed Lachman Singh and Others Vs. The State, . The learned Government Advocate strongly relied upon this decision because that was also a case where the accused persons made statements disclosing that the dead bodies of the persons murdered were thrown in a Nala and thereafter, the police party with the accused went to the Nala where each of them pointed out a place where different parts of the dead body were discovered. But the ''initial pointing out'' was by accused S. Their Lordships held --

that even if the rule to be applied in the case was that it is only the information which is first given that is admissible u/s 27 and once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person, the case was covered by the rule and the discoveries made at the instance of S were admissible in evidence u/s 27.

A significant feature in that case, as also in the case before us, is, that the river from where the dismembered parts were said to have been recovered, is an expansive river running over several miles and indefinite information could not have led to any discovery, unless the accused had conducted the police to the actual spot from where part of the body after combing have been recovered. On facts in Lachhman Singh''s case (supra), the accused Swaran Singh who led the police to a particular spot and it was at his instance that recoveries were made. The High Court was satisfied that the ''initial pointing out'' was important for the recovery. In the case before us, from the evidence of P.W.11 Motilal Yadav (Panch witness) and P.W.19 Rana, A.S.I., all the three accused in this case were present together and each was interrogated in the presence of the other two. For recoveries also all the three went together and in such a situation of simultaneous statements, it is not possible to specifically give a finding, as was the case in the decisions referred above that a particular accused ''initially pointed out'', or was "the first to point out the actual place of discovery". As admitted by the I.O., he has not recorded the timings in the memoranda or in the diary to enable us to give that finding.

That apart, even the discoveries are shrouded with reasonable suspicions and confusions. On 17-9-1982 the recoveries consisted of the torso one hand an axe; on 18-9-1982 another hand was recovered; and on 19-9-1982 a third hand was recovered, when only one person has been murdered. The mystery about the third hand haunts the entire discoveries, and even the I.O. in para 59 admits, that there is some mistake somewhere and that is why he had shown recoveries of three handset different occasions. The benefit of doubt of this circumstance would naturally go to the defence and not to the prosecution. Moreover, apropos the discovery of the second hand, witness says, that it was found "floating over stream". Contra, the I.O. says that it was also recovered from under-waters, after some persons dived deep in the water. The climax is the recovery of a head from a place which is two to three kilometres away from the place where other parts of the body were recovered and alleged by from place shown by all accused. There is no information memo about the head and it is difficult to accept the explanation given by the I.O. that while the accused were being sent to judicial custody, he casually told them that they have already made their disclosure and that is why (all three) made a discovery about the place where the head was found at their instance. Here again it is not possible to pin-point or particularise a particular accused out of the three. Some such difficulty about the recovery statements arose in a decision reported in Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, , Para 5 at page 368 gives all the details and the reasons for discarding recovery of a ring. In Dagdu and Others Vs. State of Maharashtra, at page 150, Mr. Chandrachud, J. has observed--

It is plain common sense that suspects are seldom willing to furnish quick and correct clue to the crimes for which they are arrested. A certain amount of coaxing and promising has inevitably to be done in order to persuade the accused to disclose at least the outlines of the crime. But the use of strong methods of investigation, apart from raising problems concerning the observance of decency in public affairs and of human dignity, is fraught with the danger that the very process by which evidence is collected may become suspect and fail to imspire confidence.

In the instant case, the Panch witness, on more than one occasion, repeated, that the accused during discovery proceeding of investigations were beaten, though this is denied by the I.O. Moreover, the I.O. seems to have overstepped the seal for recoveries, and the conclusion seems inevitable, that the discoveries are so manipulated that each of the accused is connected with the articles recovered. This feature in the discoveries, with others already described above, casts a serious doubt about the recoveries on basis of which alone the accused are being connected with the offence. At any rate, the prosecution has succeeded in creating serious doubts about the guilt of the accused. The prosecution has to prove its case beyond all reasonable doubt. The prosecution case "may be true", but it has not proved that of "must before" and there is a long distance between these two concepts. Since the oral evidence is now totally absent for consideration and it is not possible to particularise the "initial pointing out" of some discoveries to a particular accused, the conviction of the two appellants are unsustainable.

In the result, this appeal succeeds and is allowed. The conviction of the appellants u/s 302, Indian Penal Code and the sentence of imprisonment for life are hereby set aside. The appellants are on bail and their bail bonds are discharged.