Malsu Sada vs State of Bihar

Aftab Alam and C.M. Prasad, JJ.—This is a jail appeal by Malsu Sada, the Appellant, who stands convicted u/s 302 of the Penal Code and sentenced to undergo R.I. for life by judgment and order, dated 24.1.2000 passed by the 1st Additional Sessions Judge, Araria in S.T. No. 10 of 1996. The trial Court found him guilty of killing Kauleshwar Sada, his own brother, on 6.8.1995 by cutting his neck by a sharp cutting weapon.

The case was instituted on the basis of a statement by Gulten Sada (P.W. 2, brother of Tetri Devi, wife of the deceased), that was recorded as fardbeyan by the Officer-in-charge, Sonamani Godam P.S. at the Police Station on 6.8.1995 at 10 in the night. The statement simply reports about the commission of the offence, without naming the accused or even casting suspicion against anyone. On 6.8.1995 Gulten Sada along with Nityanand Sada, Dukhai Sada and Chowkidar, 12/1 Chauthi Paswan (none of whom were examined as witness in court) came to Sonamani Godam P.S. at 10 P.M. and made the statement before the. Officer-in-Charge that from his childhood he was in the employment of Indradeo Singh, Mukhiya and lived with him. He worked for him as plough-man and looked after his sundry cultivation works. On 6.8.1995, like any other day, he was at his Darwaja, when at about 6 in the evening his nephew (Bhagina) Ashok Sada (P.W. 1) son of Kauleshwar Sada (the deceased) came to the house of Mukhiyaji and told him that his father Kauleshwar Sadi had died after throwing up blood from his mouth. What was stated by Gulten Sada as having been said to him by Ashok Sada is recorded in the fardbeyan within inverted commas as follows "Hamara Baap Kauleshwar Sada Muh Seh Khoon Odher Ke Mar Gaya". Then he (informant) along with Ashok Sada came to the house of Kauleshwar Sada and found that his brother-in-law (Bahnoi) was lying dead inside his house. His neck was cut at the front and blood in large quantity had fallen on the floor inside the house. By his side there was a blood stained Kachia (Hasua). He went on to say that he had not seen anyone and he did not know who had killed his Bahnoi Kauleshwar Sada. He further stated that his Bahnoi Kauleshwar Sada and his younger brother Malsu Sada both worked in Punjab and they had come back from there 10 or 12 days ago. The recorded statement was read out to him. He found it to be correct and put his L.T.I, on it. On the basis of the fardbeyan a formal First Information Report was later drawn up giving rise to Kursakanta (Sonamani Godam) P.S. Case No. 42/95.

It appears that at a very early stage in the investigation the Appellant confessed of having killed his brother Kauleshwar Sada before the Investigating Officer (P.W. 10). The Investigating Officer recorded his confessional statement in writing. On the Appellant''s statement written down by him, the I.O. made his own signature and made the Appellant too put his thumb-impression. He also obtained on it the thumb-impressions of Firangi Das (P.W. 7) and Bahadur Mandal (P.W. 8) and the signature of Chandradeo Singh (P.W. 9) the co-villagers of the Appellant and in whose presence the confessional statement was purportedly recorded.

The Investigating Officer submitted charge sheet against the Appellant and on commitment he was put on trial u/s 302 of the Penal Code for having committing the murder of his brother Kauleshwar Sada.

The prosecution examined 12 witnesses and got certain documents, including the confessional statement recorded by the I.O. produced as exhibits in support of its case.

Before the trial Court Ashok Sada (the son of the deceased), a child aged about 12 years, who had first seen and discovered the body of his father stated that he had seen his ''Chacha'' Malsu Sada coming out of the room with blood stains over his hand and clothes and going to the hand-pump for washing the blood. Apart from this evidence four witnesses, Firangi Das (P.W. 7), Bahadur Mandal (P.W. 8), Chandradeo Singh, (P.W. 9) and Binda Prasad Singh, the I.O. (P.W. 10) were examined in regard to the confessional statement. Out of the four, P.Ws. 7 and 8 completely disowned the confessional statement. The conviction of the Appellant thus rests on the statement of P.W. 1 and the confessional statement (Ext. 7) which was supported by the evidence of the Investigating Officer (P.W. 10) and, to a certain extent, by Chandradeo Singh (P.W. 8).

We now proceed to examine the prosecution evidence in slightly greater detail. P.W. 1 was examined on 30.4.1997 i.e. about a year and nine months after the occurrence. On the date of his deposition his age was recorded as 12 years. The trial Court, however, satisfied itself that the witness was able to give rational answer to the questions put to him. He told the court that on the day his father was killed his mother had gone to the Hat in the second half of the day. His father had stayed back at the house because he was not well. He himself was playing on the road (outside, his house). He came to his house for having water and saw his ''Chacha'' Malsu Sada coming out of the house. His hand was stained with blood and there was blood, on his shirt as well. He (Ashok Sada) went inside his house and saw that his father was bleeding from his neck. His uncle went to the hand pump for washing. In his cross-examination there is nothing to materially detract from the statement made by him in his Examination-in-Chief.

P.W. 2 is the informant Gulten Sada. In his deposition before the court he substantially made the same statement as contained in the fardbeyan with the only improvement that his Bhagina Ashok Sada, on coming to the house of Mukhiyap had told him that his father was bleeding from his neck (Aur bataya ki mere pita ke gardan se khoon nikal raha hai.) He did not say before the court that his Bhagaina had also told him that while he was going inside the house for having water he saw his ''Chacha'' Malsu Sada coming out with blood stains over his hands and shirt. He further stated that a large number (200) of villagers had collected at the place of occurrence, out of which he named two or three persons. He also said that he asked them in regard to the death of his Bahnoi but no one could say anything. He was cross-examined by the defense on the point of the presence of Chandradeo Singh at the place of occurrence, presumably to judge him as a witness to the confessional statement but as it would be seen presently that is hardly of any significance.

P.W. 3 is the Doctor who in course of his deposition proved the post-mortem report (Ext. 1). The Doctor''s evidence and the post mortem report leave no room for doubt that Kauloshwar Sada was killed by cutting his neck at the front by some very Sharp cutting weapon.

P.Ws. 4, 5 and 6 are formal witnesses who were examined to prove the inquest report (Ext. 2), and the two seizure lists (Exts. 3 and 4) respectively.

P.Ws 7 and 8 were examined as witnesses to the confessional statement of the Appellant. However, P.W. 7 in his opening sentence said that the I.O. had not arrested the Appellant in his presence and he was promptly declared hostile. P.W. 8 also said that it was not correct that the I.O. had recorded any statement of Malsu Sada in his presence in which he (Malsu Sada) had confessed that he had killed his brother by cutting his neck by a Hasua and that he along with other witnesses had put his thumb impression on the recorded statement.

P.W. 9 proved the inquest report and he further stated that the I.O. had recorded the statement of the accused Malsu Sada in his presence; that on the paper on which the statement was recorded he put his signature; further that Malsu Sada himself and Firangi Das had also put their thumb-impressions. He identified his own signature which was marked as Ext. 5/1. Thus, all that he said is that he witnessed the I.O. recording the statement made by Malsu Sada. He does not say whether or not the statement of Malsu Sada was recorded correctly and whether the statement made by him was confession of his guilt or otherwise.

The I.O, examined as P.W. 10 of course fully supported the confessional statement of Malsu Sada recorded by him which was marked as Ext. 7 (See paragraph 7 of the deposition of P.W. 10).

P.W. 11 was Tetri Devi, wife of the deceased. She said that while she was returning from the Hat she came to learn from a certain Dilip (not examined as witness) that her husband Kauleshwar Sada was bleeding from his mouth. When she. reached home she found that her husband''s neck was cut and a lot of blood had fallen on the floor inside the house. There was a Kachia lying there. When she went near her husband''s body she found him dead. In cross-examination she plainly said that she did not know who killed her husband and no one told her as to who was the killer of her husband.

P.W. 12, an Advocate''s Clerk, was examined to formally prove the F.I.R. that was marked as Ext. 8.

This is the position of the prosecution evidence and the trial Court has relied heavily on the evidence of P.W. 1, the son of the deceased and the confessional statement (Ext. 7) to find and hold the Appellant guilty of the charge.

But the difficulty is that the trial Court seems to have overlooked that the so-called confessional statement of the Appellant, recorded by the Investigating Officer (Ext. 7) is directly hit by Sections 25 and 26 of the Evidence Act.

Further, on going through the record of investigation, it is difficult to attach any credibility to the so-called confessional statement. In order to see how the Investigating Officer was led to the Appellant and under what circumstances the confessional statement was made before him we leafed through the case-diary. Before picking up the case diary we had presumed that though this aspect of the matter had not come in the fardbeyan, the Investigating Officer must have come to learn from Ashok Sada, the young son of the deceased, that he had seen his ''Chacha'' Malsu Sada coming out of the room with blood stains over his hand and clothes and going to the hand-pump for washing. We had presumed that Ashok Sada would be among the first witnesses whom the Investigating Officer must have examined since it was he who had first seen the deceased lying down inside the room with his throat slit. But that is not so and the position is quite the reverse.

From the case diary it appears that after recording the fardbeyan the Investigating Officer took down the further statement of the informant and the statements of the two persons accompanying him, namely, Nityanano Sada and Dukhai Sada. These Statements were recorded at Sonamani Godam Police Station itself and these were mere repetition of what was stated in the fardbeyan (paras 3 to 6 of the case diary). He came to the place of occurrence the following day and at 7 in the morning he examined the place of occurrence, prepared the inquest report and seizure lists of different objects, collected and seized by him at the place of''occurrence (Paras 10-13 of the case diary). In paragraph 14 he stated about sending the body of the deceased for post mortem.

The first witness examined by the Investigating Officer was Tetri Devi, the wife of the deceased whose statement is recorded in paragraph 15 of the case diary. Her statement does not indicate any clue as to the killer of her husband or anyone whom she might have suspected. The next witness examined by him (para-16 of the case diary) is Malsu Sada, the Appellant himself. He told the Investigating Officer that he had accompanied his Babhi Tetri Deri for going to the Hat but had stopped on the way to talk to one Ram Prasad while his Bhabhi proceeded for the Hat. While he was returning home the son of his brother, Ashok Sada came to him running and said that his father who was in the house was throwing up a lot of blood. On reaching home he found that his brother was lying dead, badly smeared in blood. In the statement of Malsu Sada there is not; the remotest suggestion of any confession that he had killed his brother.

In paragraphs 17 and 18 of the case diary the Investigating Officer recorded the statements of the witnesses of the seizure lists. Para-19 contains the statement of Chandradeo Singh a co-village and the brother of the Mukhia. Paragraphs 20 records the statement of Ram Prasad Singh and the statements of several co-villagers are jointly recorded in the following paragraph No. 21.

Up to this stage there does appear to be any material, either in forum of statement of any witness(es) any objective finding that would indicate any link between the Appellant and the offence committed. But suddenly in paragraph 22 of the case diary the Investigation Officer records that apart from taking (sic) statements of witnesses he also (sic) confidential enquiry in regard to the officer and the accused. In course of the (sic) he came to learn that Malsu Sada lived with his elder brother Kauleshwar Sada, the deceased, had fallen in love with the wife of the deceased and had developed special relationship with her. This led to some friction between the two brothers and there was possibility that Malsu Sada had a hand in the murder of Kauleshwar Sada. In paragraph 23 of the case diary that is shown to have been recorded at 12 noon of 8.8.1995 it is stated that the I.O. took Malsu Sada under his control (custody) for further investigation of the case and paragraph 25 of the case diary states about Malsu Sada admitting his guilt and paragraph 26 of the case diary records his confessional statement.

Surprisingly Ashok Sada was examined by the Investigating Officer much later in the after noon of 10.8.1995, that is to say, three days after the occurrence and two days after the recording of the so-called confessional statement of the Appellant. Thus it appears to be a case in which the I.O. first selects and picks up the accused and then proceeds to collect evidences to nail him.

How far the statement of the Appellant made before the I.O. was voluntary is sufficiently indicated from the judicial record of the case. It may be noted that after the so-called confessional statement Malsu Sada was formally taken into custody and he was produced before the Chief Judicial Magistrate, Araria on 8.8.1995. At the time of production a petition was also submitted by the Investigating Officer for his examination before a Magistrate for recording his statement u/s 164 of the Code of Criminal Procedure. Therefore, in the order dated 8.8.1995 the Chief Judicial Magistrate gave the following direction:

I.O. has proved that the accused Malsu Sada wants to confess his guilt. Jail Supdt. is directed to keep him in segregation and produce him before the court of Shri R.K. Chakarborty, Magistrate 1st Class, Araria for his confessional statement u/s 164 Code of Criminal Procedure on 9.8.1995.

In pursuance of the direction the Appellant was produced before the Magistrate on 9.8.1995 but the order of that date shows that he declined to make any statement much less any confession of his guilt.

In the aforesaid circumstances, we fail to see what credibility can be attached to the so-called confessional statement recorded by the Investigating Officer which in any event is inadmissible in terms of Sections 25 and 26 of the Evidence Act.

If this was not sufficient we find that the trial Court too has committed a material and serious error in using the confessional statement against the Appellant.

While taking down the statement of the accused u/s 313 of the Code of Criminal Procedure the trial Court did not draw his attention at all to Ext. 7, the so-called confessional statement, and did not ask him anything in that regard. The Appellant was thus given no opportunity to deny the statement attributed to him or to explain the circumstances in which the so-called confessional statement was made by him and on this score too the confessional statement (Ext. 7) cannot be used or relied upon for holding him guilty of the serious charge of murder.

Once the so-called confessional statement is discarded and put out of consideration, the only evidence that remains is the deposition of P.W. 1 that he had seen Malsu Sada coming out of the room with blood stains over his hand and clothes and going to the hand-pump for washing.

It is noted above that at the time of his deposition in court the age of P.W. 1 was recorded as 12 years. He was thus slightly over nine years at time of the occurrence. Gulten Sada, P.W. 2 to whom Ashok Sada had gone to inform about the occurrence does not say that this statement was made by the child to him. It is seen above that Ashok Sada was examined by the Investigating Officer three days after the occurrence and two days after the recording of the so-called confessional statement. After the so-called confessional statement was recorded it would be in everybody''s mind that the Appellant was in fact the culprit. In those circumstances, it cannot be ruled out that the young mind of the child was manipulated in a way to make him see things that he had actually not seen at the time he was entering into the room.

Leaving aside this aspect of the matter and assuming that what the child stated in court was true and correct, on the basis of that circumstance alone we are unable to arrive at the finding, beyond all reasonable doubts, that it was Malsu Sada who had committed the offence. Being seen by the child coming out of the room with blood stain over his hand and clothes does not lead to the only inference that he had cut the neck of his brother by a sharp weapon. There may be other explanations quite compatible with his innocence. He might have come into the room and seen his brother profusely bleeding from his neck. It is perfectly understandable that he might have tried to help him and attempted to stop the bleeding. He might have gone near him and stooped over him trying to pick him up. All this would naturally put blood stains over his hands and clothes. This circumstance alone, therefore, does not lead to the inescapable conclusion regarding his guilt. There being no other material, we find it difficult to sustain his conviction u/s 302 of the Penal Code.

The judgment and order coming under appeal are accordingly set aside. The conviction of the Appellant u/s 302 of the Penal Code and the sentence of Rigorous Imprisonment for life awarded to him are also set aside and he is directed to be released forthwith unless he is wanted in connection with some other case(s).

Before parting with the records of the case, we would like to record our appreciation of the efforts of Mrs. Madhuri Lata who appeared as Amicus Curaie and presented before us the facts of this case in a coherent manner.

In the result this appeal is allowed.