Bigna Kumhar and Others vs King-Emperor

The six appellants with three others were charged with offences under Sections 302 and 147 of the Indian Penal Code. They were charged with committing murder by intentionally causing the death of Mt. Ghasin and with being members of an unlawful assembly with the common object to kill and cause hurt to Mt. Ghasin in prosecution of which common object the said Ghasin was beaten by the members of the assembly causing her death. The trial was held with the aid of four assessors. Three of the assessors were of opinion that it was doubtful if Mt. Ghasin was dead or alive and missing and that the evidence was not sufficient to convict the accused. One assessor was of opinion that Mt. Ghasin had been killed but that the charge u/s 302 had not been proved. He considered that the charge u/s 147 had been proved. The learned Judicial Commissioner agreed with the assessors that the charge u/s 302, I.P.C. had not been established against any individual accused. He, however, came to the conclusion that a riot had been committed and that those who took part in the riot were guilty u/s 147, I.P.C. He was of opinion that the six appellants were guilty u/s 147 and convicted them under the said section and sentenced them to undergo rigorous imprisonment for two years. He acquitted three of the accused, being of opinion that the evidence against them was not sufficient.

This Court, in admitting the appeal also directed notice to issue on the appellants to show cause why they shall not be convicted of an offence u/s 302, I.P.C. We have therefore to consider not only the question as to whether the conviction u/s 147, I.P.C., should stand, but also as to whether the evidence on the record leads to the conclusion that the appellants were guilty u/s 302, I.P.C.

The appeal has been very ably and fully argued by Mr. Anand Prasad on behalf of the appellants and the learned Assistant Government Advocate, with his usual fairness, has conceded that the evidence is not sufficient to convict the appellants of an offence u/s 302, I.P.C. I propose, however, to discuss the evidence as regards both the offences.

Mt. Ghasin was a widow living with her only son Lohra Kumhar a child ten years old. The appellant, Bigna Kumhar is her husband''s brother and her house was situated in the same angan as that of Bigna. The other appellants are all related with each other, and with Bigna.

The prosecution case is that the deceased Mt. Ghasin was supposed to be a witch or possessed by some evil spirit and that she was the cause of illness of several persons in the village. The appellant Bucha Kumhar had a son named Bandhan and he died on the 1st of May 1925. The prosecution case is that the appellants believed that the death of Bandhan had been caused by the witchcraft of Ghasin. The appellants and one Tipru Sawasi, who is a bhandari of the landlord of the village went to bury the body of Bandhan and there was some talk about the death of the boy having been caused by Mt. Ghasin and there was a proposal that Mt. Ghasin should be got rid of. After the burial a meeting is said to have taken place in the house of Bucha after sunset, to which Tipru was also called, where it was resolved to kill Mt. Ghasin. Tipru says that he warned them not to do so and that ho went straight from the meeting to Mt. Ghasin and told her to run away as there was a proposal to kill her. It is said that at about midnight the deceased Mt. Ghasin and her son Lohra were sleeping on a khatia in a room facing the verandah of her house when the appellants went and Bigna called Ghasin and asked her to come out. She did come out and according to one version Bigna caught her by the throat and throw her down and according to another version, Harakh caught and threw her down. They are said to have throttled her and to have carried her either dead or alive.

Now this is said to have taken place on the night of the 1st May 1925. Nothing happened until the 17th of May. The boy Lohra, used to live with his uncle, the appellant Bigna. On the 17th of May Lohra''s sister''s husband Kandna his father, Mahesh, who live at Mouza Tingaria went to Mt. Ghasin''s house and enquired of Lohra as to where she was and than Lohra is said to have told them at once that she had been killed by the appellants and others and that her body had been thrown away. They apparently did not believe him, and they took him to the house of Dukhan and Ladhu, who are the brothers of the deceased woman and lived at Mouzab Timra; and thee they enquired as to whether Mt. Ghasin was there. On being informed that she was not there Lohra told them about her death and they all resolved to go to the thana and lodge the first information. It appears that Kandna and Mahesh before going to Timra had gone to the chaukidar Sohrai and informed him; but that Sohrai told thorn that he would first go the village and enquire into the matter and then go to the thana the next day, The first information was lodged at the thana at Karra on the 18th of May 1925 at about 2 p.m. by the boy Lohra. He was accompanied by the chaukidar Sohrai by Mahesh and Kandna and by his maternal uncles Dukhan and Ladhu. He stated that Bigna Kumhar came to the house at about midnight and asked his mother to open the door and his mother opened the door and that the other appellant then came up and they all accused her of being a witch and of bringing about the death of Bucha Kumhar''s son. Bigna is said, in this first information report, to have seized his mother by the throat and knocked her down and the other appellants to have kicked and fisted her and killed her by trampling. Lohra stated in this first information that he was awakened when Binga first came to the house and that he had seen all that had happened. He further stated that Bigna had warned him not to speak about the affair to anyone and that he was threatened that they would kill him if he told anybody about it. He stated that on the previous day when his sister''s husband Kandna and the latter''s father Mahesh came to his house and enquired about his mother, he told them that she had been killed.

Now the evidence of this boy Lohra is the most important evidence in the case. He is the only eyewitness of the occurrence and if his evidence is believed the whole of the occurrence, as stated by him is proved. The other important evidence is that of Tipru Sawais, the bhandari of the village. The cause of the murder is said to be the general belief that the deceased woman was a witch. It is said that the appellants and others believed that she was the cause of the illness of the people in the village and that the death of Bucha''s son was the immediate cause of the murder. There is no doubt upon the evidence that there was some sort of belief in the minds of the accused and others that the illness in the village was caused by Ghasin. But it seems that the belief was not that she was really a witch but that she was herself possessed by some evil spirit. In Chait or Baisakh preceding the occurrence there appears to have been a panchait, which Tipru and others attended, and there a proposal was made to take steps to drive away the evil spirit from her and that one of the members of the panchait undertook to do so if he was given expenses for making certain sacrifices. This appears to have been a friendly proposal to relieve Mt. Ghasin of the evil spirit which possessed her. The evidence is that during the illness of Budhan and others, Mt. Ghasin used to go and see the sick man and there was no objection to her doing so. She used to go and visit the appellants and others and to dine with them and no objection appears to have been taken to this. There does not appear to be any strong feeling in the mind of the accused and others to get rid of Mt. Ghasin herself on account of her being a witch. Therefore although there appears to be some sort of belief in the mind of the accused of Mt. Ghasin being either a witch or possessed by some evil spirit, and although it has been established by the evidence that Bucha''s son died on the 1st of May, the evidence falls short to prove that the appellants resolved to kill Mt. Ghasin on account of such a belief and on account of the death of Bucha''s son.

The meeting of the villagers at funeral and the resolution to dispose of Mt. Ghasin is deposed to by Tipru alone. As regards his evidence it is clear that one cannot place great reliance upon it. He made conflicting statements before the committing Magistrate and in the Sessions Court. The learned Judicial Commissioner has relied upon his evidence before the committing Magistrate which was admitted u/s 288 of the Criminal Procedure Code. It was contended by the learned vakil for the appellants that the evidence before the committing Magistrate was not admissible at the trial. Reliance was placed upon the words ''subject to the provisions of the Indian Evidence Act, 1872'' introduce into the section by the Amending Act of 1923. By this Amending Act, the evidence of a witness taken before a committing Magistrate may be treated as evidence in the case, if such witness is produced and examined at the trial "for all-purposes" subject to the provisions of the Indian Evidence Act. These words have introduced a certain amount of ambiguity in the section. One cannot be certain as to what is exactly meant by these words. Under the provisions of the Indian Evidence Act the evidence of a witness examined before a committing Magistrate would not be admissible in evidence except u/s 145 or u/s 155 of the Evidence Act for the purposes of the witness being examined as to his previous statement and relevant matters in question or with the intention to contradict him with the statement made by him in previous depositions or generally in order to impeach the credibility of the witness; or u/s 157 for the purpose of corroborating the testimony of the witness given at the trial. To my mind Section 288 makes the previous evidence of a witness taken before a committing Magistrate, evidence admissible at the trial and the limitation, imposed to such admission by the introduction of the words "subject to the provisions of the Indian Evidence Act" merely means, as laid down by this Court in Jehal Teli Vs. Emperor, that such evidence can be used at the trial for all purposes as long as the evidence is evidence within the meaning of the Evidence Act. In other words, that the deposition recorded by the committing Magistrate can be utilized at the trial il the matter contained therein is according to the rules of evidence laid down in the Evidence Act of evidential value. To limit the admissibility of such evidence at the trial only to cases where the evidence is admissible under the Evidence Act would be to frustrate the object in enacting Section 288 of the Criminal Procedure Code. In my opinion the previous deposition of Tipru taken before the committing Magistrate was rightly admitted at the trial.

The question however is as to what is the weight of such evidence. This point has been discussed in a number of cases some of which have bean noticed by the learned Judges in the case of King Emperor v. Jehal Teli (1). In action to this, reference may be made to the case of Bachala Peda Somadu and Others Vs. Nethipudi Appigadu and Others, . It is difficult to lay down any precise rule as regards the weight to be placed on a piece of evidence admitted at the trial. Bach case will depend upon its own peculiar facts and the nature of the other evidence adduced in the case. It can, however, be said that if a witness makes two contradictory statements, his evidence can not be implicitly relied upon and must be taken with a good deal of caution. In Jehal Teli Vs. Emperor, after consideration of the cases bearing on the point, the learned Judges observed as follows:

I think, therefore, that the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilized in support of a conviction.

I entirely agree with this expression of opinion and unless Tipru''s statement before the committing Magistrate is materially corroborated by other evidence or is shown by facts clearly established by other evidence that the statement made by him before the Magistrate was a true statement, the conviction ought not to be sustained upon such evidence, (The judgment then discussed the evidence and proceeded). I now come to the confession of Bigna. It appears that on the 27th of May 1925, he made a statement; before the Sub-divisional Officer in which he stated that on a Saturday or Sunday at the end of Baisakh, Harakh, Hati, Sibu Kumhar, Dhirju Nana, Ramjia Fagu and Bora Kumhar killed Mt. Ghasin and threw away her corpse. The Sub-divisional Officer then asked him as to what had happened and he stated that when Bucha''s son died, Phagu called him (Bigna) and said "See the child is dead. Why have you killed him, have you eaten him what have you done, say cr. else I will kill you and throw you away. If you go by what your sister-in-law says we shall kill you, if you go by what we say nothing will happen to you." That there was a meeting about sunset in the angan of Rangia and Bucha; that it was decided to kill his sister-in-law. He gave the names of all the appellants and of others as being present. He says that he was also present as Bora and Phagu had gone to call him. He then says that they came during the first part of the night when Harakh called his sister-in-law. Baying that he wanted to speak something to her and asked her to come out for a drink of haria. His sister-in-law said that she would not go at night and that Harakh said that he had got something to tell her and thereupon his sister-in-law came out of the room and sat in the varandah. Harakh asked her if she had haria, to which she replied that she had not got haria. Harakh then seized her by the throat, Phagu seized her legs and some of the others trampled and some kicked her; Sihu thrust cloth in her mouth and Harakh throttled her to death. On being asked as to where did he see the occurrence from, he said that Harakh woke him and took him to the spot and told him that if ho would lodge information they would kill him. That is why he did not give information. On being asked where did they throw the corpse of his sister-in-law, he said that after they had killed her they immediately carried her corpse and buried her in the sands in Karo river on the boundary between villages Bilsiring and Kedli.

Now the question is whether this is a confession as all and whether it could be used as evidence not only against Bigna but also against the other accused. Section 30 of the Evidence Act is quite clear. Confessions of an accused can be used against other accused persons who are tried jointly with the accused making the confession when such confession affects the person making it. A confession must be a confession of guilt. The statement made by Bigna could in no sense, be considered to be a confession of guilt. He does not inculpate himself in any way. Ha states that he himself was accused by Phagu as being instrumental in killing the son of Bucha and he was himself threatened with being killed. He accounts for his presence there as he was called there by Phagu and Baro. His statement does not make it out that he was a member of the assembly with the common object of killing or causing hurt to Mt. Ghasin. I am, therefore, clearly of opinion that this statement is not a confession at all which can be used in evidence either as against Bigha or against the other accused. This confession was retracted subsequently and it was stated that ha had made the statement at the instance of Tipra.

It is than contended that his statement to the police which led to the discovery of the bones and the ornaments could be used as evidence. It is clear that the bones were not discovered on account of the statement made by Bigna. His statement was that the body was buried at a certain place. The Sub-Inspector went there and did cot find the body there. He next stated that it was removed to another place and there also no trace of the body was found. The bones were discovered at a third place and as I have said above the bones have not been "proved to be the bones of Mt. Ghasin.

In the circumstances she charge u/s 302 cannot stand.

The charge u/s 147 also cannot stand as it is based entirely upon the evidence of Tipru and Lohra, whose evidence is not sufficient to prove that the appellants were members of an unlawful assembly. The learned Judicial Commissioner has found that the present accused persons were members of the unlawful assembly on account of the discovery of the stains of human blood on the clothes of the accused. A motia chadar was found on the person of Ronghia; a dhoti was found on the person of Boro; a chadar was found in the house of Boro; a dhoti was found on the person of Phagu; a chadar was found on the person of Bucha and another chadar on the person of Bigna, on all of which were stains of human blood. The cloths were discovered about three weeks after the occurrence and it is hard to believe that if the stains of blood were the stains caused by the murder of Mt. Ghasin the accused persons would not have taken the ordinary precaution of washing the stains from the clothes. In my opinion the finding of the stains of blood on the cloths is not a circumstance which would prove the complicity of the accused in crime.

After a careful consideration of the entire evidence in the case, I am of opinion that the charge u/s 302 has not been established and that the charge u/s 147, Indian P.C., has also not been sufficiently proved as against the accused. I would, therefore, set aside the conviction and sentence passed upon the appellants and direct that they be set at liberty.