Lingaraj Das vs Emperor

Das, J.—The appellant, Lingaraj Das, aged about twenty eight, was tried by the learned Sessions Judge of Cuttack on a charge u/s 302 read with Section 34, Penal Code, for murdering a woman called Ulia Bewa, who was a prostitute by profession. He has been found guilty of the charge and sentenced to transportation for life. There was an alternative charge u/s 201, Penal Code, of which the appellant has been acquitted by the learned Sessions Judge.

The deceased woman, Ulia Bewa, was originally a resident of a village in the Dhankanal State. She was a prostitute, and used to go to Calcutta for earning money. Some days before 26th August 1940, the woman was seen in company of one Bhaskar Dhir who is now absconding. She was seen in company of Bhaskar Dhir in village Garh Madhupur and some neighbouring villages, such as, Bhoban-pur, Kakudakhali, etc. On 26th August 1940, which was the Janmastami day, the woman was seen in company of the present appellant and Bhaskar Dhir at different times in village Garh Madhupur. She was seen in company of the appellant and Bhaskar Dhir at 4 p. M. then again at 8 or 9 P. M. and then at about 11 P. M. This was the last time when the woman was seen alive. On 27th August 1940, at about 5:30 A. M. the dead body of the woman was found on the railway line between telegraph posts 17 and 18 on the 222nd mile between stations Garh Madhupur and Hari-daspur. One Mr. Butcher (P.W. 11) was in charge of the up goods train. The engine driver of the said train noticed the dead body and stopped the train. Mr. Butcher alighted from the train, and went up to the dead body. It was found that the body had been severed in two near about the waist. Mr. Butcher sent information to the station master of Hari-daspur. The station master instructed his assistant to send a telegram to the Government Railway Police at Cuttack. The telegram was received by the Government Railway Police at Cuttack at about 10 A. M. on 27th August 1940. A case of unnatural death was started by the junior Sub-Inspector, Sri Udaynath Santra (P.W. 21) on the basis of the telegram. The junior Sub-Inspector sent, the assistant Sub-Inspector, Minaketan Dora (P.W. 20) to the spot for investigation. Minaketan came to the spot on 27th August 1940, and held an inquest over the dead body. The dead body was then sent to Cuttaek for post mortem examination. Before such examination was held, a photograph of the upper part of the dead body was made. The identity of the deceased woman has been established by means of that photograph.

The post mortem examination was held at about 2-30 P. M. on 28th August 1940. Sri Udaynath Santra (P.W. 21) investigated into the case from 3lst August 1940 to 2nd Sep-tember 1940. On that date he made over charge of the case to his Senior Sub-Inspector, namely, Sri Kripasindhu Mahapatra (P.W. 13). On 3rd September 1940 Sri Kriptisindhu Mahapatra arrested the appellant. The appellant made a statement to Sri Kripasindhu Mahapatra. This statement has not been admitted in evidence inasmuch as it is hit by Section 25, Evidence Act. Portions of the statement, leading to recovery of certain articles, have been admitted in evidence. It appears that at about 2-30 P.M. on that date the appellant took Sri Kripasindhu Mahapatra to a tank known as Bhabadei tank. There the appellant pointed out a place on the western side of the tank, saying that Bhaskar Dhir had thrown the clothes of Ulia Bewa at that place. The Sub-Inspector asked a fisherman, Gopal Sahu (P.W. 17) to dive under the water. Gopal Sahu brought out a black bordered ihoti, about 9 cubits long. At about 3 P. M. on the same day, the appellant took the Sub Inspector to the house of one Adikanda Sahu (P.W. 2) a goldsmith of village Gopinathpur. The appellant stated that two gold ear-rings given to him by Bhaskar Dhir had been sold to Adikanda Sahu. The Sub-Inspector questioned Adikanda, and the latter brought out two gold ear-rings. At about 5-30 P. M. on the same day, the appellant took the Sub-Inspector to a place on the road near "Rajapola". This was the place which the appellant pointed out as the place where an attempt was made to throttle the woman. The Sub-Inspector examined the place, and found some broken pieces of bangles made out of conch shell. The position of the place where these broken pieces of bangles were found would appear from the sketch map (Ex. 11). The sketch map shows the position of the place with reference to "Rajapola" and the place on the railway line where the dead body was found. As the alleged place of assault was within the juris-diction of Dharmasala Police Station, the G. R. P. Sub-Inspector sent the appellant in custody along, with the recovered articles to the Sub-Inspector of Dharmasala Police Sta-tion. This latter Sub-Inspector completed the investigation and submitted charge sheet.

Thereafter, the case has had a chequered career. The appellant had made a confession before a Magistrate on 7th September 1940. After submission of the charge sheet, an inquiry was made by Mr. Tripathy. He discharged both the present appellant and Bhas-kar Dhir by his order, dated 13th January 1941. On revision the District Magistrate set aside the order of discharge, and directed commitment of both the accused persons to the Court of Session. This order was passed on 5th November 1942. Thereafter, both the accused persons were found absconding and after the arrest of the present appellant, he was committed to the Court of Session by the present Sub-divisional Magistrate of Jaj-pur. The other accused person, Bhaskar Dhir, is still absconding. The above facts explain why a crime which was committed in August 1940 came to be tried in 1944.

The defence of the appellant was a denial of his guilt. He said that the police had induced him to make a confession before the Magistrate. He denied having taken the Sub-Inspector to Bhabadei tank and to have pointed out the place where the clothes of Ulia Bewa were thrown. He also denied having pointed out to the Sub-Inspector the place on the "rasta" near Rajapola where some broken pieces of baugles were found. He however admitted that he had sold two gold ear-rings to Adikanda Sahu. He stated however that the gold ear-rings belonged to him. The learned Sessions Judge has found that the ap-pellant was seen in company of Bhaskar Dhir and Ulia Bewa from about 4 P. M. till about 11 P. M. on 26th August 1940. Bhaskar Dhir and the appellant were seen going with the woman from Garh Madhupur village towards Garh Madhupur railway station. In view of the medical evidence in the record, the learned Sessions Judge has further found that Ulia Bewa was not actually throttled. There was an attempt to throttle her, and she became unconscious. After she had become unconscious, she was taken to the railway line where her body was placed. Then she was run over by a passing train. On these findings the learned Sessions Judge has found the appellant guilty u/s 302 read with Section 84, Penal Code. I may note that the learned Sessions Judge finds that both the present appellant and Bhaskar Dhir had the common intention of killing the woman in order to rob her of her ornaments.

Mr. Sahu has with great ability and thoroughness contended on behalf of the appellant that, (1) the confession is not true in view of the medical and other evidence in the record; (2) even if the confession is true, it does not make out a case of murder against the appellant; and (8) that the articles recovered by the Sub-Inspector of Police (P.w. 13) have not been proved to be those of the deceased woman and do not therefore connect the appellant with the alleged murder.

7.. It is, therefore, necessary to see how far these contentions are correct. As to the identity of the deceased woman, there can be no doubt. Several witnesses have seen the photograph taken before the post-mortem examination was held, and have said that the photograph was that of the deceased woman Ulia Bewa. There can therefore be no doubt that the dead body severed into two parts, which was found on the railway line on 27th August 1940, was the dead body of Ulia Bewa. The time of occurrence is also fixed within certain limits. The prosecution evidence is that the deceased woman was seen alive at about 11 P. M. on 26th August 1940. Her dead body was found in the early morning of 27th August 1940. It is clear therefore that she must have been killed after 11 p. M. in the night between 26th August 1940 and 27th August 1940.

Therefore the main question for consideration in the appeal is if the present appellant is responsible for the murder of Ulia Bewa. The evidence against the appellant consists of (a) the direct testimony of witnesses who saw the appellant with the deceased woman till about 11 P. M. on 26th August 1940, (b) the appellant's own confession made before the Magistrate (P.W. 12) on 7th September 1940 and (c) certain circumstances, such as, the recovery of the articles, to be mentioned hereafter, affording corroboration to the confession. As to the witnesses who saw the appellant in company of the woman on 26th August 1940 till about 11 P. M., they are Dayanidhi Das (P.W. 6) Pitabas Jena (p.w. 7), Govinda Parida (P.w. 16) and Banchu Malik (P.W. 18). One other man, Benu Barik, also gave evidence before the Committing Magistrate on the same point. He died, however, and his deposition before the Committing Magistrate was admitted in evidence u/s 33, Evidence Act. (After considering the evidence his Lordship proceeded.) If the evidence of the aforesaid witnesses is accepted--and I see no reasons why their evidence should not be accepted as correct--then the irresistible conclusion i,s that the appellant and Bhaskar Dhir were seen with the woman on 26th August 1940, and they were seen going with the woman towards Garh Madhupur railway station at about 11 P. M.

There is no direct evidence to show what happened thereafter. The confession of the appellant made on 7th September 1940 is the only piece of evidence which shows what happened after 11 P. M. on 26th August 1940. This confession was recorded by the Magistrate P.W. 12. The confession is Ex. 6 in the record. The confession recites that Bhaskar Dhir approached the appellant to go with him. Bhaskar stated that he would take the woman with him towards the station on the pretext of taking her to Puri. Bhaskar further stated that on the way they would kill the woman and take her ornaments. The appellant did not at first agree. He agreed after Bhaskar had caught hold of his hands and feet. The appellant then proceeded ahead on the station road, Bhaskar Dhir arrived with the woman from behind. The three went up to Rajapola, the appellant going ahead and followed by the woman, and then by Bhaskar Dhir. On the way the appellant looked behind and saw that Bhaskar Dhir was pressing down the woman and gagging her mouth. The woman groaned and died. Then Bhaskar took out the two gold earrings. Thereafter, Bhaskar and the appellant took the dead body and placed it on the railway line. The two gold earrings were sold for ESection 18 out of which Bhaskar took Rs. 11 and the appellant got Rs. 7. The appellant then went away to Baripada to the house of his brother-in-law. The above gives in brief the statements made in the confession of the appellant. The first point for consideration is if this confession is voluntary and true. The evidence of the Magistrate who recorded the confession shows that he gave the appellant enough time to think over the matter. The appellant was duly cautioned and it was explained to him that he was under no obligation to make a confession, and that, if he made one, it could be used against him. The appellant clearly stated that he had under, stood the position, and was willing to make a voluntary statement. Nothing has been suggested to the Sub-Inspector (P.W. 13) which would indicate that he had tutored the appellant to make the confession. I have no reason to doubt that the confession was anything but voluntary. It is true that there is no guarantee of truth in a confession in which the maker of the confession entirely exculpates'' him and throws the blame on some other person. The confession which is under our consideration is not, however, a self-exculpatory statement. It does implicate the maker substantially in the offence, though it gives a more prominent part to the other person, Bhaskar Dhir.

The confession was retracted in the Court of Session, and it is necessary to see how far it is true and to what extent it is corroborated by other evidence in the record. The most important point about the truth of the confession arises out of the medical evidence given in the case. In the confession the statement is that Bhaskar Dhir pressed down the woman, gagged her mouth and throttled her; the woman groaned and died. The doctor who held the post-mortem examination (P.W. 10) has detailed the injuries found on the dead body. As stated above, the body was cut in two at the waist. The doctor says that the body was severed at the level of the first and second number vertebrae. The right side of the sacrum was fractured and separated. The doctor further found multiple abrasions on the front of neck and on the sides of the face and elbows. He found a lacerated wound and a contusion on the head. On dissection it was found that the skull had been fractured at the vault in the middle line. In the opinion of the doctor, all the aforesaid injuries were ante mortem injuries. The doctor did not find any traces of the woman having been throttled to death. He did not find any abnormality in the larynx or the trachea. He did not find any congestion in the lungs, nor any points of haemorrhage as would be found in a case of death by throttling. Therefore the evidence of the doctor negatives the possibility of the woman having been done to death by throttling. The doctor has further said that all the injuries on the body could be caused by a train passing over her except the injury on the right ear lobe which, according to the doctor, was a post-mortem injury. Therefore the very pertinent question arises as to whe-ther the confession can be held to be true in view of the medical evidence given in the case. It can be taken as established that the woman did not die of throttling. At the time when the post mortem examination was held the only fact known was the fact that a running train had passed over the body. The evidence of the doctor does not in any way preclude the possibility that some of the injuries on the woman, particularly the injuries on the head, neck and face, were caused earlier than injuries 1 and 2 which were clearly caused by a running train. It is true that all the injuries except the one on the ear lobe were ante mortem injuries. That does not, however, mean that all the injuries were caused by a passing train. There is no improbability as far as the medical evidence is concerned that some of the injuries were caused earlier than the passing of the train over the body of the woman. In this connexion the fact that the body was found stark naked on the railway line should also be Considered. The fact that the body was found stark naked rules out the possibility of death having been caused accidentally or as a result of suicide, It is not reasonable to hold that a woman committing suicide would strip herself of all clothes, or that a person who is accidentally run over by a passing train would be moving over the railway line in a stark naked condition. The fact that the body was found stark naked clearly indicates that somebody must have placed the body on the railway line after the woman had been made unconscious by an assault. There is therefore nothing improbable if the woman had been assaulted at the place indicated by the appellant to the Sub-Inspector, and then her body was removed to the railway line when she had become unconscious. That there was an earlier assault on her is also indicated by the fact that broken pieces of bangles were found at the place. The evidence of Mr. Butcher (P.W. 11) and Minake-tan Dora (P.W. 20) shows that the woman had on her wrist some brass ''churis'' and ''churis'' made of conch shell. The broken pieces of ''churis'' found at the place were also ''churis'' made of conch shell. It would therefore appear that the woman had been assaulted earlier at a place on the road near Rajapola and then she had been removed to the railway line and her body placed there. When the appellant stated that Bhaskar Dhir had throttled the woman, the appellant was merely stating what he thought had happened to the woman. It is clear that the woman was not actually throttled to death, though it is possible that some attempt was made to throttle her. It cannot therefore be said that the medical evidence is so inconsistent with the concession that the confession must be held to be totally untrue. The confession substan-tially makes out a case of an earlier assault and then the placing of the body on the railway line. This case is not inconsistent with the medical evidence. I would therefore reject the contention raised on behalf of the appellant that the medical evidence is so inconsistent with the confession that the confession must be held to be totally untrue.

Coming now to the recovery of the articles and the circumstances which support the confession, it would appear that the confession is supported on many material points by the other evidence given in the case. Take for example, the recovery of the two gold ear-rings from Adikanda Sahu. According to the evidence of the Sub-Inspector and the search witness (P.W. 15) the appellant took the Sub-Inspector to the house of Adikanda Sahu. The Sub-Inspector questioned Adikanda and Adikanda produced the two gold ear-rings as having been sold to him by the appellant. It is no doubt true that Adikanda made some mistake about the date on which the Sub-Inspector came to his shop. Adikanda's evidence seems to indicate that the Sub-Inspector came to his shop on 29th August 1940. This is clearly a mistake. The Sub-Inspector had not taken charge of the investigation before 2nd September 1940, and the evidence of the Sub-Inspector and the search witness (P.W. 15) clearly shows that they went to the house of Adikanda on 3rd September 1910. The evidence of the Sub-Inspector shows that it was the appellant who took the Sub-Inspector to the house of Adikanda. In the confession of the appellant there is mention of the two gold ear-rings. It is also mentioned therein that the two gold ear-rings were sold for ESection 18, The evidence of Adikanda Sahu and the recovery of the two gold ear-rings from him clearly corroborate the confession. The Sub-Inspector of police stated that the appellant said that Bhaskar had given him the two gold ear-rings which had been sold to Adikanda for Rs. 18. It is impossible to hold that the Sub-Inspector could have known from before that Adikanda would have two gold earrings. Therefore, the recovery of the two gold ear-rings from Adikanda is a very good circumstance in support of the confession of the appellant. Then there is the recovery of the cloth from the tank. Here again, the appellant took the Sub-Inspector to the tank and the dhoti was recovered from the tank by Gopal Sahu (P.W. 17) in the presence of Iswar Kewat (P.W. 9). There was some argument before us as to whether the woman would wear a dhoti which is generally worn by males. It is nowhere stated that the woman was wearing that particular dhoti at the time when she was murdered. All that was stated by the appellant was that Bhaskar Dhir had thrown the clothes of Ulia Bewa at this particular place in the tank. It is possible that other clothes might have been thrown which were not recovered and that only the dhoti was recovered. The woman might have used the dhoti as a chadar. The important point about the recovery is not that it is a dhoti but that it is a piece of cloth which was found at the place where the appellant said that the clothes of the deceased woman had been thrown. It is not possible that the Sub-Inspector would know the place from before. The fact that the appellant shows the place where the clothes were thrown and the fact that a dhoti is found there from under the water are clearly circumstances which go against the appellant. It was pointed out to us that there was no refer, ence to the dhoti in the confession and, therefore, the recovery of the dhoti cannot be taken to be in support of the confession. It is, however, an independent circumstance which connects the appellant with the crime. Then there is the third circumstance relating to the recovery of the broken pieces of the bangles. Here again, the appellant took the Sub-Inspector to a place which he pointed out as the place where the earlier assault on the woman had taken place. The Sub-Inspector examined the place and found the broken pieces of bangles. This also is a circumstance which connects the appellant with the crime, and corroborates the confession made by him.

I, therefore, hold that the confession is voluntary and true, and it is supported by other circumstances connecting the appellant with the crime in question. It was contended that there had been no test identification of the articles recovered and there is nothing to indicate that they belonged to the deceased woman. There is evidence of one witness, Adhikari Fakir Charan Das Goswami (P.W. 19) who says that when he saw the woman she was wearing gold earrings and churis, similar to those which were recovered. I may note here that the recovered articles were not exhibited in the Court of Session, as they appear to have been made over to certain persons after the accused persons had been discharged by the Committing Magistrate. There is no evidence in the record to show that any other person besides the deceased woman was in a position to identify the recovered articles. The question of indentifica-tion is, however, immaterial in view of the statements made by the appellant which led to their recovery. The evidence of the Sub-Inspector (P.W. 13) shows that the appellant stated that the place where the dhoti was found was the place where the clothes of the deceased woman had been thrown by Bhaskar Dhir. The appellant himself stated that the two gold earrings which had been taken by Bhaskar from the deceased woman had been sold to Adikanda. Adikanda brought out the gold ear-rings. The question of identification is, therefore, immaterial in view of the statement of the appellant that the two gold earrings taken by Bhaskar had been sold to Adikanda. The appellant admitted that he had sold two gold earrings to Adikanda, but he said that they belonged to him. No evidence has been given to prove that the two gold earrings sold to Adikanda belonged to the appellant, or they belonged to Nilamani Dhir's mother, as was stated by the appellant earlier to Adikanda.

The only other point which requires consideration is the offence which the appellant has committed if the confession is accepted as voluntary and true. It has been strenuously contended that, even if the confession is accepted as true, it does not make out an offence u/s 802, Penal Code, against the appellant. The confession makes it quite clear that both the appellant and Bhaskar Dhir had the common intention of killing the woman and taking her gold earrings-. There is a clear statement in the confession that Bhaskar Dhir told the appellant that the woman would be taken towards the station on the pretext of taking her to Puri, and that on the way, she would be killed and her ornaments removed. If both the appellant and Bhaskar Dhir had the common intention of killing the woman then the series of acts by which they assaulted the woman and then placed her body on the line would be one transaction. That transaction would be judged by the common intention which they originally had. If the common intention was to kill, and they gave effect to their intention by a series of acts, the offence will be clearly one of murder. In Nehal Mahto Vs. Emperor, . and In re Kaliappa Goundan AIR 1933 Mad 798 the same question has been considered. It has been held in the Madras case that if the intention is to kill and the killing results, the accused succeed in doing that whioh they intended to do, and if the acts follow closely upon one another and are intimately connected with one another, then the offence of murder has been committed. The learned advocate appearing for the appellant tried to distinguish the two cases on the ground that in none of them did the accused person believe that the person whom they had assaulted was dead. In the Patna case it was held that these was no evidence that the accused, when he carried the body to the railway line, was under the belief that the woman, was dead and that he was handling a dead body. In the Madras case also it was not found that the accused persons thought that the deceased woman was dead when they put her dead body across the rails. In the present case, however, the appellant has clearly stated in his confess sion that the woman was thought to be dead when she was removed to the railway line. The question, therefore, is whether this distinction makes any difference in the legal position. It has been pointed out in In Re: Thavamani, that the most important point is whether there was any intention to cause death. There is a reference to certain earlier cases where, in the absence of an intention to cause death, it was held that the offence committed was one u/s 307, Penal Code, or Section 326, Penal Code. Where, however, there is from the very beginning a clear intention to cause death, the offence is one of murder if death results from a series of acts. The following observations made in the case reported in In re Thavamani AIR 1943 Mad 571 make the position clear:

Kaliappa Goundan and Another Vs. Emperor, however, and, in the present ease, it is clear that theri was at the beginning an intention to cause death. This intention was apparently completely barreid into effect but in fact was not. Even if the intention at the second stage of the transaction had been merely to dispose of a dead body, as is pointed out in 57 Mad. 158,2 the two phases of the same transaction are so closely connected in time and purpose that they must be considered as parts of the same transaction. The result of the actions of the aooused taken as a whole clearly is to carry out the intention to kill with which they began to act.

If the intention be to kill, the offence is one of murder even if the killing takes place by a series of acts in two stages. In the particular case under our consideration, the intention is clear from the confession itself. The fact that the appellant accompanied Bhaskar Dhir knowing that the woman was to be killed on the way for her ornaments, the fact that he removed the body of the woman to the railway line, the fact that he sold the two gold earrings to (sic) Sahu and shared the booty--all these show that the appellant had the same intention as Bhaskar Dhir, namely, to kill the woman and rob her of her ornaments. The mere fact that the earlier assault on the woman did not result in her death, but that she was killed by a passing train would make no difference. In view of the common intention to kill the woman, the appellant would be clearly guilty of the offence of murder. The learned Sessions Judge has imposed the lesser penalty in view of the long delay which has taken place in the trial of the appellant. The lesser penalty having been imposed, there is no question of interfering with the sentence. In the result I would dismiss the appeal and nphold the conviction and sentence passed against the appellant.

Sinha, J.

I agree.