EMPEROR Vs. GANGARAM HARI PANDIT

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case proceeded to deal with the point of law as follows:-]

(2.) At the start, I desire to deal with the question of law as to the admissibility of certain evidence which has been raised cm behalf of the defence. It has been urged that the evidence now adduced by the prosecution to show that the prosecution theory as then put forward in the Bagdi murder case was false and also that the theory put forward by the prosecution then in the case relating to Gaugu s murder was false is inadmissible. It is urged that it really amounts to evidence of similar acts showing either habit on the part of some of the accused or establishing their bad character. It is also urged that the admission of this evidence really puts the accused on the defence not only as to the murder of Dadu but as to two other murders as to which no charges are framed, but which are made indirectly the subject-ill matter of the inquiry. On the other hand it is urged that this evidence is admissible under Ss. 8 and 15 of the Indian Evidence Act, and that though it may show either habit or bad character, it is relevant as showing motive, preparation and conduct of the accused in the present proceedings, and as showing that the attack on Dadu was not accidental but intentional. The learned Sessions Judge was of opinion that the evidence was admissible; and in fact he has admitted evidence relating to both these murders to show the real character of those murders. The learned Judge in giving reasons for this view has not referred to any section of the Indian Evidence Act; but perhaps he had in view Section 8 of the Indian Evidence Act. This 1 gather from the words motive, preparation, and conduct used in one part of his judgment. But whatever section he may have in view, he has given reasons which I shall consider while dealing with the argument Urged here by the learned Government Pleader. Section 8 provides that "any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact". I do not think that the real truth about those murders can be said to constitute a motive or preparation for any fact in issue in the present proceedings. The motive alleged is that with reference to the six persons, who are said by the prosecution now to be falsely charged, Shripati and his associates were actuated by feelings of enmity against them. The fact of enmity may be proved; but I do not see how the real truth about the murder of Santu Bagdi s child or the murder of Gangu can be said to constitute a motive or preparation for any fact in issue or relevant fact connected with the murder of Dadu. The learned Judge has placed this ground of motive first among his reasons for admitting this evidence. I am unable to accept his view that the real truth about those cases suggests a motive for this murder. It may to a certain extent explain the fear which Shripati entertained from the relatives of those who were accused in those cases. It seems to me, how-aver, that that fear would exist whether those persons were really guilty or innocent. The very fact that some of those who were acquitted in the first case were believed by Shripati and his associates to be their enemies is an indication that the real truth of the case had not such a direct connection with the feeling of enmity. It is then urged that under the second part of Section 8 "the conduct of any person, an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by, any fact in issue, or relevant fact, and whether it was previous or subsequent thereto", I do not think that this clause helps the Crown. The learned Judge observes that that evidence explains the absconding of the persons falsely accused in the present case who were warned by the experience of the persons convicted in Gangu s case. I am of opinion that those six persons are witnesses in the case and though they may have been charged according to the prosecution falsely at one stage of the proceeding, these persons are not the accused parsons before us. I do not think therefore that the second ground urged by the learned Sessions Judge and relied upon by the Government Pleader is covered by Section 8. The third ground urged by the learned Judge is that the confessions referred to this story about Gaugu s murder and that the truth of that statement must be tested. I do not think, however, that that by itself affords any ground for admitting evidence which is not directly shown to be relevant under any of the sections of the Indian Evidence Act. The last reason mentioned by the learned Judge is that it is the duty of the Court to inquire into the allegations as to miscarriage of justice with a view to bring the matter to the notice of Government. It may be perfectly appropriate for the Court to make such an inquiry and to set right so far as it can any miscarriage of justice. But it is equally necessary to see that the question of the guilt of the present accused, who are on their trial on charges relating to a particular murder, is determined on the evidence admissible under the Indian Evidence Act and not on the strength of evidence which it may be necessary to record and. appreciate with reference to two different murders altogether. The interests of justice require that an inquiry as to the truth about those murders should be made; but it can be made separately. The same interests of justice in my opinion require that the case against the present accused should be determined on the evidence which is shown to be relevant under the Act. As regards Section 15 of the Act which has been relied upon, I do not see how it can apply. That section provides that- Whan there is a question whether an act was accidental or intentional of done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

(3.) In the present case there is no question as to whether the death of Dadu was accidental or intentional, It is the case on both sides that Dadu was murdered and whoever assaulted Dadu intended to murder him. Whether the six persons mentioned by Gangaram actually committed the murder or whether some of the present accused committed it is the real question. But it cannot be said that there is any point as to the death of Dadu being accidental. It may be a part of the prosecution case that in attacking the party, assuming for the sake of argument that the enemies of the present accused were the assailants, the object was to go at Gangaram and not at Dadu. The fact remains that those who went at Dadu did murder him, i. e., they intended to do what their act would show they intended to do. Whether those persons were actuated by a desire to go at Gaugaram more than at Dadu or whether they went at Dadu by mistaking him for Gangaram, they undoubtedly murdered him and there can be no doubt that they intended to do so. There is no question of the death being accidental. I may refer to the observations in Rex v. Boyte [1914] 3 K.B. 339, which suggest the test to be adopted in determining whether evidence of similar acts is admissible under Section 15 or not in a particular case. Though there may be cases in which it may not be easy to determine whether the evidence is admissible under Section 15 or not, 1 do not think that in the present case there is any difficulty whatever. Though Section 9 of the Indian Evidence Act has not been relied upon on behalf of the Crown, I have considered it with reference to the question as to whether this evidence can be let in to explain the conduct of the persons who are said to have been falsely charged. I have already referred to this consideration so far as it can be said to fall within the scope of Section 8; and I am satisfied that to explain the conduct of those six persons in absconding when they received the news that their names were given as the assailants of Dadu, the belief on the part of some of them that on previous occasions false charges of that character had succeeded or had been brought would be relevant. There is evidence in this case to show that there was a belief in the village that the accused in Gangu s case were wrongly convicted; and that may be relevant to explain the conduct of the six persons in this case, But that belief might exist whether the accused in that case were rightly convicted or not. In my opinion that would not entitle the prosecution in this case relating to the murder of Dadu to prove that on two previous occasions some of the accused were concerned in similar murders and in charging others falsely. Taking a broad and general view of this type of evidence I feel that in effect it amounts to evidence of habit for committing a murder under circumstances as are now alleged to exist. That kind of evidence is not relevant. It seems to me that the second part of illustration (o) to Section 14 clearly indicates that unless the evidence was particularly directed to show that on a previous occasion any one of the present accused made an attempt to murder any one of the six persons now said to have been falsely implicated it would not be relevant. It is quite clear that the persons concerned in those two cases an accused persons were different. I also feel that there is some force in the argument urged on behalf of the defence as to such evidence being in substance evidence of bad character. Its net result is to create the impression on the mind of the Court that these persons are men of bad character and are in the habit of committing murders, and that, therefore, they must have committed murder on this occasion. That is a line of proof which, in my opinion, is excluded by the Indian Evidence Act and should not be allowed. We have, therefore, excluded from consideration only that evidence, which has been adduced by the prosecution to show specifically that the charges in both those earlier murder cases were positively false and that the persons convicted in Gangu s case were innocent.