Vagharl Madha Kanna vs The State Coroplanant

Shah, C.J.—This is an appeal by accused Vaghari Madha Sana, who has been convicted of murder and sentenced to death by the Additional Sessions Judge, Gondal, and the matter has also come before us for confirmation of the sentence. The deceased Parshottam Deviji was a Kanbi boy aged about 18 years, and lived with his parents at village Kamadhia, which is situated on the Bhadar River.

The offence took place at about 10 P.M. on the night of 8-5-1955 in the hut of the accused, which was on the river bank. After the night meal on that day, Parshottam had gone to the village bazaar and was thereafter seen in the company of the accused. Later on, the same night he was seen hurrying towards his house going past a tea shop of one Trikamji Dhanji. His cousin Hansraj called to him but as he gave no reply Hansra followed him and on reaching home he found that Parshottam''s throat had been cut and he was bleeding.

Mohan and Java, who were also sitting at Trikam''s tea shop, soon came up and realising the critical situation they sent Hansraj to call Ravji Pattel, a former Revenue Patel and a leading man of the village. Ravji came up, and as and new; spread in the village Ors. also collected at the house of Parshottam. His father Devji, who was at his Verdi, was sent for, and he also hurried home.

Parshottam was unable to speak but he was fully conscious and on being interrogated by Ravji Patel in various ways he gave them to understand that his throat had been cat by Madha, in Kana Vaghari, of the village (the present accused). Thereupon, Ravji together with Naran the police patel of the village and Lakha the village policeman and Ors. went Lo the Vagliarivuda and la-quired of Kana where his son Madha waa but Kiuiu said that he did not know.

As they were making a search for the accused in the vicinity, the accused was seen coming along with his paternal aunt Bal Tapu, wife of Sidi, and her two sons, Paths and Sava, and on meeting them Ravji and the police patel took all three of them to the house of Parshottam. They wire shown to Parshottam, and Parshottam identified the accused Madha as his assailant by signs of the hand arid by nodding the head, The shirt worn by the accused was found to be wet and his half pant was found blood-stained.

The accused was then detained and Pathu and Seva were allowed to go. A motor car was sent for and after the car arrived at about 2 A.M., Parshottam was removed to the hospital at Gondal, and Kavji who had accompanied him gave inforrnatl m to the Police Sub-Inspector of Gondal at about 3-50 A.M. On the advice of the Gondal Medical Officer, Parshottam was removed to the West Hospital Rajlcot hi the early morning, but haired in the hospital at 4-25 P.M. the same afternoon.

In the meantime the Police Sub-Inspector of Gondal went to Kamadhia in the morning and started the investigation, in the course of which on the information given by the accused, an Oujkar and two amulets were recovered from Bal Tapu. The same morning the accused produced a pick-axe with which his hut was demolished and a scarf which he had given to his father.

A little later he took the police and the Pinches to his hut, which was found in a demolish as state, and took out a razor and a handle of the razor from beneath clods of earth in the hut. The earth of the floor as also the was were found smeared with blood. Soon after that the accused produced a pen-knife from a Virda ,(water pit) in the sands of the river not far from the hut. All these articles were attached by the police.

On 10-5-1955, the accused was sent to the First Class Magistrate, Gondal, with a request to record his confession, but the accused declined to make a confession and alleged that he was beaten v. the police, though the Magistrate found no frt.''s of the alleged beating on his person.

The accused had an incised injury on his right thumb, and there was also a swelling on his left thumb, but he denied the fact of these injury in. His defence was a total denial of having anything to do with the offence or of his having been talon to the house of Parshottam on that night having been identified by Parshottam. He also need having given any Information leading to the discovery of the Omar and the amulets and of the razor and the pen-knife'' and other articles. He also denied that the shirt that he was wearing was wet, and as regards the blood-stains on his half pant he alleged that they were caused by a bleeding of his nose.

The evidence in this case is purely circum stantial, and it is settled law that in a case dependent on circumstantial evidence, in order to justify an inference of guilt the incriminating facts must be incompatible with the innocence of the accused !or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis jthan that of his guilt. Circumstances front which inferences are sought to be drawn against the ac-! cased must be proved-beyond reasonable doubt and jtimst be closely connected with the facts sought to inferred from them.

Now the first circumstance here is the dying declaration made by Parshottam and his identification of the accused as the person who had cut his throat. The injury on his throat, being injury No. 2 in the ''Post Mortem Notes, Ex. 50, was

an incised wound, neck from 1" below the ear lobule on the left to 1" below the ear lobule on the right side. All muscles and cartiage below are cut. The upper edge of the wound has three small transverse cuts on it. The wound was 8" long, 21/2" broad, gaping deep to wind pipe and gullet which were both cut.

As a result of this injury Parshottam was unable to speak, but there is the evidence of Ravji and several Ors. that he was fully conscious and was able to understand all the questions put to him and to answer them by a nod of the head or by signs of the hand and fingers. It was suggested for the accused that on account of the bleeding caused by the wound Parshottam must have become unconscious and therefore he must not have been in a position to give any answer to the questions put to him, but the suggestion is completely disproved by a number of witnesses whose names are detailed later in this judgment and who had collected there at the time and in whose presence Ravji had questioned Parshottam.

Ravji''s evidence is that Hansraj had come running to his house that night and had told him that Pirshottam''s throat had been cut by some one at the Bhadar river. Hansraj supports Ravji on this point, and it was therefore quite natural for Ravji tc ask Parshottam whether he had gone'' to the Bhiular. Therefore the suggestion made for the Appellant that the question must have been deliberately put in that manner in order to implicate the . accused is without substance altogether. Hansraj had actually seen Parshottam coming from the: direction of the village gate which Is on the river the and he- therefore surmised that Paurohitam widgeon to the river.

In any event, he did speak to Ravji Patel that Pwshottam''s throat was cut at the river, and therefore there was nothing suspicious in Ravji''s asking Parshottam whether he had gone to the Bhadar. TO this question Parshottam made a nod of the head in the affirmative. Ravji then questioned about the culprit as to whether he was a Kanbi or a Koli, to which Parshottam made signs In the negative; when asked whether he was Vagary, he replied in the affirmative by a sign of the hund and by a nodding the head.

Then the names of certain Vftgharl.8 were uttered by Eavjl, to all of which the answer was In tie negative, of course by signs. Even when he was asked whether Madha, son of Mohan, assault-eel him, Parshottam made a sign in the negative, mid it was only when he was asked whether Madha, son of Kana, was the assailant that he made a Hlim in the affirmative moving his haad on the throat and making a nod of head. This question was put three times and every time he made a slim in the affirmative. Then he was asked in the same way regarding the weapon and eventually he made signs in the affimative regarding the weapon being a pen-knife thereafter that Ravji together with the police patel Narau and the-village-police-man Lakha went in the search of the accused. We''are completely satisfied on reading the evidence of Ravji and Ors. that the questions were put In a perfectly natural manner and that the name of the accused did not come out as a result of any suggestions made to Parshottam.

Signs made by an injured person either by a nod of the head to indicate assent or by the sign or motion of fingers or hand in answer to questions put to him for finding out the identity of the individual causing the injury amount to verbal statement within the meaning of Section 32(1) of the Indian Evidence Act. In - ''A.P. Chandara sekera v. The King AIR 1937 P.O. 24 ( v. 24) (Al, the victim whose throat was cut by the accused was alive for some time and being questioned regarding the offence and the person who committed it, she answered the question by signs and nods being unable to speak. She described the accused by signs and when she was asked whether that person was the accused she showed assent by a nod.

It was held that the statement made by the deceased constituted a verbal statement resembling the case of a dumb person and was relevant and admissible in evidence. The rulings in - ''Queen Empress v. Abdullah'', 7 All 385 (PB) (B); - Emperor Vs. Sadhu Charan Das, ; - Chandrika Ram Kahar Vs. Emperor and Mam Ohand v. Emperor'', AIR 1924 Lah 609 (v. 11) (E); were referred to in that case with approval.

The same view was taken in - Emperor Vs. Motiram Raising, , and it was held that gestures of the deceased in reply to the questions put to her taken together with her gestures in reply to them, are admissible in evidence. Broomfleld J. felt it doubtful whether such gestures can be regarded as a verbal statement within the meaning of Section 32 of the Indian Evidence Act or would be relevant as conduct u/s 8 of the Act, but Wassoode v. J. definitely held that their were admissible u/s 32 of the Act. AIR 1937 P.O. 24 ( v. 24) (A) sets this difference of opinion at rest, and holds that signs, nods and gesture amount to a verbal statement u/s 32 of the Evidence Act.

Therefore the answer? given by Parshottam in the present case are admissible as a verbal statement and they amount to a dying declaration made by him. There is not the slightest scope for any suspicion regarding the questions or the meaning of the answers given by him, He was fully consoles end quite capable of understanding the questions and answering them. In fact Ravji Patel and Ors. went for a search of the accused only after his name was'' ascertained from Parshottam.

The evidence also is that when the accused along with Pathu and Sava, sons of Bai Tapu, was brought to Partita''s house and they were made to stand before him, Parshottam rejected the two Ors. mid definitely answered by pointing his finger at Madha and nodding his head in the affirmative, and this he did three times on being questioned. He pointed to his throat and made a sign of cutting by moving his fingers across the throat.

Ravji is corroborated by a number of witnesses, via.,, Hansraj, Devji, Devraj Mulji, Devraj Raja, Karsan Bhabha, Karsan, Nanu Bhada, police patel Naran, village police-man Lakha, Mohanlal Damo dar, Ravji, Mohan and Jiva, who wore present at the time of the original questioning and also at the time when the accused was identified by Parshottam as the person who had cut his throat.

Pathu find Snva were also Vagharls, but Parshottam definitely stated by signs that they not his assailants. The statement of Parshottam involving the accused and his actually identifying the accused is thus a very material circumstance pointing to the guilt, of the accused.

The next circumstance is the blood-stained clothes of the accused. He was found coming along with Bai Tapu and her sons Pathu and Sava and was taken directly from there to Parshottam''.s home. There his clothes Were seen in the light of a torch and his half pant was found to have been stained with blood.

The shirt he was wearing was wet because he had ninsiMiy wiuocd. In the (DoHolunn C JoUl''t that he was at all taken to Piirshottum''s house, but in the committing Court he has admitted that he had been taken there along with Pathu and Suva. He denies that his shirt was wet, but Unit cannot be believed in the face of the positive evidence of the witnesses that it was wet. As regards "the blood stains on the half pant, he imputes them to a beating given by the police and Ors. , but the'' explanation is far from convincing, apart from the fact that it has been definitely denied. As it is, the police was not even on the scene at the time. The blood stains on the half pant and the stains on the shirt have been found by the serologist to be human blood, and its presence thus defmitely indicates his complicity in the offence. There were injuries on the thumb of his right hand and of swelling on his left thumb and he was complaning of pain on the knees.

In the face of the definite evidence of the Panch, supported, as it is, by the Panchnama, the statement of the accused denying the fact of the injuries cannot be accepted, and the presence of the injuries on the thumbs of the accused must be taken as proved. They also show that the injury on the thumbs was caused by a sharp weapon, and considering that the weapons used in this case were a pen-knife and a razor and taking into account the manner of its use, namely, cutting the victim''s throat, it appeal''s quite clear that, the injuries found on the accused must have been caused while handling the weapons. That also sufficiently incriminates the accused.

Then there is the production of the Omkar and the amulets (Dodis) which were worn by the deceased on the neck at the time of the occurrence. The string holding these pieces together was cut and was also found to be blood-stained. The Omkar and the Dodis were recovered from Bai Tapu ou information given by the accused, and that fact is proved by Panch Narbheram and the Panchnama, Ex. 19. Tapu''s evidence also is that the accused had given to her these articles tied separately in rags of cloth. It was suggested that Tapu is on hostile terms with the accused and is therefore implicating the accused, but there is no substance in thin suggestion, and on the other hand, their relation;: were cordial.

The fact that he was seen in the company of Tapu arid her two sons also indicates that the suggestion of enmity or hostility between the two is not true. The Omkar and the Dodis are identified as belonging to the deceased and as articles which along with other ornaments ha was wearing on his person. Therefore the accused is found to be in the possession of two of the ornaments of Parshottam soon after the inciuent and this possession has not been accounted for by the accused.

The accused is a Vaghari, and Vagharis usually build huts on the river bank in order to loofe i''i''ter the beam; and vegetables etc., which they g.-ow in the river bed. The accused had taken the ''Panchas and the police to his hut which was found in a demolished condition, It is true there is no direct evidence as to who demolished the hut, but. considering that blood was found on part of the floor of the hut and on the wall apart from the fact that the floor had been dug out, the obvious inference would be that it must have been done by the accused.

In any event, the presence of blood in the hill suggests that Purshottam''s throat must have Ven cut at Una place. The accused had also prndocci! the under of a country razor after 1 amoving thu the clods of earth in the hut and the blood on the blade was found dried up and it has been cor. Wiled by tht) nwoluBiBl/us liunmu blood, Tjie ityltifk of the rusfoi and the handle too tip produced by the accused from the hut.

The accused then produced n, pen-knife from a I Virda (water pit) in the sands of the reiveruion lift paces from his lint, but as the blood on thiblade had disintegrated, its origin could not be determined by the serologist, Parshottam, no doubt, indicated by signs that his throat was cut by a knife and it does appear that a pen-knife had been used in cutting the that.

However considering that the wound on the throat was 8 long and its upper edge had tare'' small transverse cuts and the fact that the batik. of the razor was found to have human blood out it and the razor was broken at the handle, it seems to us that the razor was also used as the weapon I for cutting the victim''s throat. It was not put to Paurohitam and probably Parshottam too might not have recognised the weapon distinctly ax a I razor it being night time and might have taken it f as a pen-knife. I after the handle broke, the cutting, of the

throat appears to have been done with the pennife, and that accounts for the blood on the razor''s blade. The weapons had thus been recovered on the- information given by the accused.

Coupled with these circumstances, tiers s evidence that the deceased was seen in the company of the accused on the night of the offence They we found together at the tea. shop of Mahcbi at night. According to witness Abhramkhan, Ex. 23, he was sitting that night near Mahobatkhan''s tea shop and saw the accused and Parshottam coming together and askinieach other to purchase ''Pan'' and then they both j took Pan-Bidi and went towards the village gat Bijal Bharwal, Ex. 24, corroborates Abhram on this J point.

The accused and Parshottam were also SW M I sitting near the Chabutara outside the village by Bhikba Gangdas and later by Pramodrai and Vashram Gagji. Thus the circumstantial evidence 1 related above, viewed cumulatively, proves condusively and beyond any shadow of a doubt that it the accused who cut the throat of Parshottam on j the night of the offence at his (accuser''s) hut on bank of the Bhadar river.

The next question is as to the nature of the offence. An incised wound deep vertical on file .side of the lower lip sun gests that the fin blow muse nave Dec the lip and it was then that the throat must been cut.

In. any event, judging from the nature of the wound caused on the throat, there cannot be the slightest doubt that the Injury was caused celibately and in a cold blooded manner. It ran from one year to other and was 8" long, and though the learned Additional Sessions Judge appears to be of the view that the measurement of the Wound was not properly taken and the length may not be 8" we do not see any reason to .question the correctness of the measurement.

The wound was 21/2" broad, and considering that there were three transverse cuts, the breadth of the wound would appear to bra as is shown by the Medical Officer. As has been stated in Medical Jurisprudence and Toxicology by Modi (Ninth Edi- . Won), page 201.

an incised wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues. It is somewhat spindle shaped and gaping, its superficial extent being greater than its depth. This gaping is greater in deep wound3 when the muscles fibers have been out transversely or obliquely.

Parahottam had worn Phul and Champvas on the ears and these were found to be bent. The accused too had slight abrasions on the knees, which suggest that the deceased might have put up some resistance. He might have been over-powered and thrown on the ground and the throat cut there-alter. Mohan Bhavan, who was sitting along with Hansra.1 and Jiva at Trikam''s tea shop and who had seen Parshottam going hurriedly towards his from the Bhadar side, had noticed that'' the clones of Parshottam were dirty, which also suggest., that lie mant have beon thrown down on the ground.

In any event, the manner in which the throat has been cut right across from ear to ear indicates that the cutting must have been, done by overpowering Parshottam and while in a lying position. The possession of the Omkar and the his has been traced to the accused, and the fact that these were the ornaments of the deceased suggests that at first the idea in assaulting Parshottam must have been of robbery, but as the deceased put up resistance, the intention must have been to kill him first and then to rob him of the remaining ornaments, but Parshottam succeeded in running away.

The offence committed is deliberate and is not a result of an action on the spur of the moment. Mr. Mankad has urged that the deck at best amounts to culpable homicide not amounting to murder punishable u/s 304, Part I, I. P. Code, and in support of the contention he has relied on - ''Khan Mir v: Emperor'', AIR 1925 Lah 148 ( v. 12) (G). But the facts of that case were quite different and there a sudden fight had arisen between the accused and the victim; they abused each other, and in the heat of the moment the accused drew out a knife and stabbed the victim which resulted in death.

There can be no comparison between the facts of that case and those of the present case. Mr. Mankad also relied on - ''Mathai Mathew v. State'', AIR 1962 Ker 305 ( v. 39) (H). In that case, the accused and the victim were both drunk, and a wordy quarrel that ensued between them in the drunken state appeared to have developed into a hand to hand fight in the course of which the accused inflicted a deep cut with a knife on the neck of the deceased, and it was on these peculiar facts that the accused was convicted u/s 304, Part I, P. Code.

The above Travancore case is, therefore, easily distinguishable on the facts. Judging from the nature of the injury in the present case, the vital part of the body on which the wound was caused and the nature of the injury which has cut throat completely, there can not be the slightest doubt that the offence committed was one of murder and nothing short of it.

On the question of sentence, Mr. Mankad has urged that the accused Is a young man aged about 27. years and that in view of his youth the exhume penalty of law may not be imposed. However youth by itself is not a justification for awarding the lesser penalty. The learned Judge has considered all the circumstances in imposing the sentence of death, and we do not see any reason to'' differ from his view.

There is no extenuating, circumstances in, this case and the crime committed is deliberate and cruel. We therefore cannot accede to the request of learned Counsel for awarding the leaser sentence, and in our opinion this is a fit case for imposing the extreme penalty of the law.

We therefore confirm the conviction of the accused and also the sentence of detail and dismiss the appeal.

Baxi, J.

I agree