Sheo Barhi and Another vs Emperor

Adami, J.—In a trial with the aid of assessors, the appellant Sheo Barhi has been found guilty of murder u/s 302 and the appellant Rajnarain Lal of abetment of murder u/s 302 read with Section 109 and both have been sentenced to death by the Sessions Judge at Arrah, who has referred the sentence for confirmation by this Court. The two appellants were also by the unanimous verdict of a jury found guilty, the former of theft u/s 379 and of abducting in order to murder u/s 364, I.P.C. and the latter of abetment of these two offences, but no separate sentences were passed under those sections.

On an appeal to this Court there was agreement between the two learned Judges composing the Bench that the convictions u/s 364 and 364 read with Section 109 must be set aside, but a disagreement with regard to the convictions of the two appellants on the charges of murder and abetment of murder respectively. There having been a disagreement the appeal has come before me for decision.

I may say at the outset that with regard to the charges of theft and abduction and the abetment of the same, the two learned Judges of this Court being agreed that the convictions u/s 379 and Section 379/109 must be upheld and those u/s 364 and Section 364/109 must be sot aside. I have no hesitation in accepting their decision on these charges, since the evidence to support the charges of theft is absolutely clear -while there are possible misdirections in the charge to the jury with regard to the extent to which an approver''s evidence may be relied on. The convictions under Sections 379 and 379/109 are upheld and those under Sections 364 and 364/ 109 set aside.

The case as put forward by the prosecution has been detailed in the judgment of the learned Sessions Judge. Shortly stated it; is as follows. Ramjanam and Jogendra wore mail peons at the Dehri post office while Sheobasant Garari was telegraph messenger there. The appellant Shoo Barhi, a carpenter who had nothing to do with the post office used to visit the mail peons quarters and suggest to Ramjanam, Jogendra and Sheobasant that they should steal the money from the post office mail bags. He hold out to them as a reward that he would get them work in Bengal. Ramjanam gave up his post on May 3rd and was succeeded as mail peon by Raj Narain, whom Shoo Barhi approached with his proposal to rob the mail bags. The mail bags wore taken every evening from the Dehri post office at about 6-30 p. m. by the mail peons whose duty it was to hand the bags over to the mail sorter of the train which arrived at Dehri railway station at 8-16 p. m. The mail peon would receive from the mail sorter in exchanges the mail bags for Dehri post office, which ho would place in the station mail box and look them up for; the night, taking them out and delivering them at the post office next morning. If the mail peon brought the Dehri post office bags to the station too late to catch the 8-16 train he locked them up in the station mail box to await the next day''s train.

Sheo Barhi, Sheo Basant and Raj Narain made a plan that Jogendra, when taking the mail bags should miss the irain and that after ho had put the bags in the station mail box they should by means of a duplicate key, unlock the box, take out the bags and divide their contents. Raj Narain obtained the key and Sheo Barhi got it copied.

On May 15th, Jogendra was dismissed and the deceased Harsulal was appointed in his place as mail peon. Though Sheo Barhi visited Harsulal he did not get him to miss the train. Failing to prevail upon Harsu, Sheo Barhi, Raj Narain and Sheo Basant agree to decoy him away and kill him and then take the mail bags and their contents.

On 28th May last the mail to be despatched from the Dehri post office was a particularly valuable one, the registered and insured parcels and letters contained Rs. 4,310 and they were fastened up in four mail bags. These bags were handed over to Harsulal to take to the railway station at 6-30 p. m. and he set out. Raj Narain left the post office a little later, and Sheobasant after getting two telegrams at 7-15 to deliver to the addresses also loft the office. Harsulal did not meet the train at 8-16 p. m. nor were the mail bags found in the mail box in the station.

Next morning as Harsulal did not appear and no mail bags had been delivered, report was made to the police and to the Inspector of Post Offices. At 10 a. m. on 29th Mahesh Dusadh and Sunder Ahir, (P.Ws. 23 and 24) found two bags stuck to a bamboo raft in the canal. These were taken to the post office and were found to be bags which had contained the mail but which had been broken open. Next morning at about 9 a. m. Harsulal''s dead body was found floating in the canal further north from the place whore the bags were found, An incised gaping wound was found on the back of the upper part of the neck stretching from the left oar across the back of the neck; the cervical vertabrae, the pharynx and the spinal cord were cut.

Investigation was going on when, on 31st constable Ramparekha Ram received certain information which led to the discovery, in the house of a prostitute, of money and articles which had been contained in the mail bags, and to the arrest of Sheo Barhi. Sheo Barhi was thereafter used as a decoy with the result that Rajnarain disclosed where he had hidden in the ground his share of the contents of the mail bags and Sheo Basant gave information which led to the production of his share of the booty namely Rs. 820.

There can be no doubt that, as has already been found, Sheo Basant, Sheo Barhi and Raj Narain committed theft of the mail bags. The question is whether they murdered or abetted the murder of Harsu Lai in order to commit the theft. Sheo Basant has been granted a pardon and has given evidence as an approver. Were his story to be accepted as true there could be no doubt about the complicity of the appellants in the murder. But the evidence of an approver must be corroborated in material particulars and those materials particulars should connect the accused persons with the crime. We have to see firstly whether under these conditions Sheo Basant''s evidence can be admitted and secondly if not whether there is sufficient evidence, discarding that of the approver to bring home the guilt of murder to the appellants.

Now the finding that has been arrived at without any reference to the approver''s evidence that the appellants committed theft of the mail bags is strongly corroborative of the story told by Sheo Basant in the witness box, so far as it relates to a conspiracy between Sheo Barhi, Rajnarain and Shoo Basant to commit theft of the mail bags. The theft can hardly have happened without a preliminary arrangement between those who took part in it. In addition we have the independent evidence of Jogendia supported by that of his father that Sheo Bar hi approached him with a suggestion to steal the contents of the mail bags. Sheo Basant has in no way sought to exculpate himself so far as the conspiracy to commit theft and the theft itself is concerned. He does not exculpate himself either so far as regards conspiring to commit murder, though he exculpates himself so far as the actual murder is concerned.

Sheo Basant''s account of how he received two telegrams for delivery at 7 p. m. and delivered them at 9''45 p. m. and 10''30 p. m. is amply corroborated and though this evidence does not implicate the accused it 4ends to show the truth of the story told by the approver in its details. The evidence of Guru Halwai (P. W. 33), Ramdas Paneri (P. W. M), Muhammad Ismail (P.W. 35) and Satdeo Sahu (P. W. 36) if it is believed corroborates the story of Shoo Basant, that Sheo Barhi, Sheo Basant and Rajnarain'' were together with Harsulal at the Halwai''s and Paneri''s shop that evening and this evidence may be said to affect the appellants by tending to connect them with the crime, since the association; was shortly before the theft was committed. It is objected that these witnesses should not be believed to be stating the true facts because they did not come forward to tell what they had seen until a few days after the murder and because there are discrepancies as to who bought the sweets and as to who was carrying the mail bags. The witnesses are independent men who have no reason to concoct a story against the appellants and the discrepancies are not of much importance.

It has been further suggested that Sheo Basant''s story should not be believed because he has failed satisfactorily to explain how Harsulal was so detained as to miss the train the distance to the railway station being so short and how it was that he did not deliver the telegrams till so late. It is true that the explanation of the delay is meagre and wanting in detail but we know for certain that Harsulal started with the mail bags at 6-30 p. m. and that he did in fact miss the mail. We know from independent evidence that Harsu with the appellants spent some of the time at the Halwai''s and the pan seller''s shops. Whether the mail bags ever reached the station and were locked up in the mail-box and then taken out we cannot know for certain. It may be that Sheo Basant took a more active part in the theft and in luring Harsu to his doom than he likes to confess. It has been suggested that the story of getting a duplicate key for the lock must be untrue because the postal authorities whenever a key is missing have to send the lock to Patna. It is obvious that this does not mean that it is impossible to copy the key, but that just because it is possible to copy a key, it is found safer to send to Patna for a new lock with a different key so that if there has been theft of the key with the purpose of copying it, the duplicate key cannot be of any use.

The position is that the story of the approver so far as a conspiracy to commit theft and the actual theft of the contents of the mail bags is concerned: is corroborated by the evidence circum stantial and direct which has led to the finding that the appellants actually did commit theft of the mail bags and as I have said before there must have been some conspiracy or arrangement to commit the crime. Jogendra and his father support the story that Sheo Barhi was instigating the mail peons to commit theft, there is evidence to show that before the theft the three men were as stated by the approver with Harsulal and that Harsulal then had the mail bags in his possession. In my opinion there is enough material evidence tending to implicate the two appellants with regard to a conspiracy to commit theft and the actual theft to corroborate the approver''s story and to show that it can be relied on so far as the charge of theft is concerned. That being so, there seems to me to be insufficient ground for discarding that part of the story of the approver which concerns a conspiracy to murder and the events loading up to the murder. If the approver''s story is believed there can ''be no doubt that the two appellants were rightly convicted of murder.

The two learned Judges, however who first heard the appeal have agreed in discarding the approver''s evidence and it is necessary to determine whether apart from that evidence there is sufficient evidence to satisfy the Court that the appellants brought about the death of Harsulal.

The circumstantial evidence in this case is such as would ordinarily lead a reasonable man to believe that the appellants were responsible for the death of Harsulal. We know that Harsulal on the evening of 28th left the post office at 6-30 p. in. with the mail bags in his possession; we know that the bags were found floating in the canal next day, having been opened and their contents extracted, and that the dead body was later found floating in the canal with a murderous wound on the neck and lastly we know that the greater part of the money which had been contained in the bags was found in the possession of the appellants. Furthermore Rajnarain produced the money he had obtained as his share from a hole dug in the bank of the canal in which the bags and dead body were found floating. As I have said, any reasonable man would conclude from the above circumstances that the men who committed the theft from the mail bags carried by Harsulal were the men who killed Harsulal in order to abstract the contents from the mail bags.

It has been urged before me that the circumstances suggest that Harsulal was a fellow conspirator with the appellants in the theft and that he also received a share of the contents of the mail bags, and that, if that is so, it is unlikely that his fellow conspirators murdered him, and the possibility is that someone else killed him in order to rob him of the share he had received. The grounds on which, learned Counsel based this suggestion are, the statement by the approver that Sheo Barhi told his fellow conspirators that Harsulal would be easier to draw into the conspiracy than Jogendra, because he had been at the school of Sheo Barhi''s grandfather, and the statement that Sheo Barhi began to visit the quarters of Harsu, but more especially the statement of the approver that the booty was divided into four shares, Sheo Barhi taking two as being the ringleader and the person who by killing Harsu had enabled the theft to be committed. It is contended that the division into four shares would point to the fact that there were four men who shared the spoils and that Harsulal was the fourth man. Now all these grounds are based on statements made by the approver in his evidence before the Court, if that evidence is discarded no notice can be taken of the statements. If the evidence is discarded it must be discarded as a whole and the defence cannot base arguments on it any more than the prosecution.

It is further argued that unless Harsulal had joined the conspaircy he could not have missed the train since he had so much time within which to~ reach the station. If the approver''s evidence is discarded we have nothing to show when exactly Harsulal met his death except the evidence that he was seen with the appellants and Sheo Basant as about 7-30 or 7-45 p. m. that night. It may be that he was taken to the canal and killed soon after that, and thus the mail bags never reached the station or it may be, as is the case of the prosecution, that he was persuaded by some inducement to miss the train, put the, bags in the station mail box, and then go with the appellants to the canal bank. The facts remain that he had the mail bags, missed the train and was killed that night. There is no evidence at all that Harsulal joined in the theft of the mail bags. Nor is there any evidence that any one also than the appellants and Shoo Basant knew anything about the conspiracy or could be aware that Harsu had received a share of the money and was worth robbing. The strong circumstantial evidence provided by the finding of the stolen property in the hands of the appellants is further strengthened by the evidence of the witnesses who depose to having seen Harsu with the mail bags in the company of the appellants and Sheo Basant at 7-30 or 7-45 p. in. in the evening of the murder. I have already stated that I can see no good reason to distrust the evidence of these witnesses. Their evidence was not shaken in cross-examination, and the discrepancies in it wore not such as would induce me to believe that the witnesses were telling a concocted story.

In my opinion the circumstantial evidence is so strong to show that it was the appellants who brought about the death of Harsulal that there could not be formed in the mind of any reasonable man any reasonable hypothesis to the contrary. I find that both of the appellants must ho held liable for the murder of Harsulil.

The evidence of the approver being discarded there is no direct evidence to show who actually struck the blow which killed HarKu. That the two appellants conspired with Sheo Basant to commit theft and in pursuance of that conspiracy to kill Harsulal in order to enable them to commit theft I have no doubt and I find both appellants guilty of abetment of murder u/s 302 read, with Section 109. There are no extenuating circumstances, the murder had been thought out and premeditated and was a particularly cold blooded one. The appellants are liable to and deserve the punishment inrliebod in cases of murder.

In the case of Sheo Barhi, I find no reason for not indicting the extreme penalty. He had nothing to do with the post office and it is clear from the evidence of Jogendra that he was the prime mover in the conspiracy. I uphold the sentence of death passed upon him by the Sessions Judge. In the case of Rajnarain who is a youth of 18 years of age, the probability is that he was tempted and led on by Sheo Barhi and Shea Basant. For the above reason I substitute for the sentence of death passed upon him a sentence of transportation for life.