EMPEROR Vs. SHIVABHAI BECHARBHAI

JUDGEMENT

(1.) The appellant, Shivabhai, has been convicted by the Sessions Judge of Kaira of murder under Section 302, Indian Penal Code, and abduction in order to murder under Section 364, Indian Penal Code. He has been sentenced for the first offence to transportation for life, and for the second to seven years rigorous imprisonment, the two sentences to run concurrently. The Judge concurred with three out of the four assessors in convicting him. The alleged murder was of one Naran, a Patidar, living in Mahommadpura, a village about one mile from the railway station of Boriavi. He lived with his mother, Bai Lala, his wife, and two little sons, and was about twenty-five years old. The prosecution case is that, early on the morning of October 10 last, the accused Shivabhai, who is also a Patidar, living in the same village, went to Naran's house and inquired whether he was ready to go. Naran said that he would shortly come and after taking his meal went to Boriavi station. The accused was already there, and both are alleged to have travelled by the same train, which left Boriavi at about 8 a. m., to Thasra station, and from there to have gone to Dabhali, a neighbouring village, where, the appellant and his brothers cultivated certain lands. The appellant with the aid of two of his brothers, is said to have murdered Naran, on October 10, 1925, at a place about four fields off their lands, just outside the limits of Dabhali. At that spot, some human remains were found, which are testified to have been those of an adult male, aged between twenty-five and forty, and which the prosecution assert were those of Naran. There were marks of violence on some of the bones, and human blood was also found on a bead-necklace (part of the remains) and on the ground. Naran never returned to his village; his disappearance was notified in the Police Gazette; and various other steps taken to trace him, but (apart from the finding of these remains) unsuccessfully. His mother, Bai Lala, had become suspicious, owing to Naran's non-return, especially upon receipt of a postcard on October 12, which she showed to various people in the village, who pronounced it not to be in Naran's handwriting. On October 20, 1923, she made a petition to the Sub-Inspector, who happened to be there on, circuit, complaining about Naran's disappearance, and mentioned her suspicion against the accused Shivabhai. Inquiries were forthwith made, with the eventual result that the appellant and one of his-brothers by name Bhulabhai were committed for trial on charges under Secs.302 and 364, Indian Penal Code. Another brother by name Nagar, who was also implicated in the police inquiry, is said to have absconded Bhulabhai (who was Accused No. 1) has been acquitted, while the appellant (who was Accused No. 2) was convicted and sentenced, as already, stated.

(2.) The main contentions of the appellant's counsel are, firstly, that it is not established that Naran was murdered, and that there is no sufficient identification of the remains found near Dabhali so as to prove them to be Naran a. Secondly, it is contended that the evidence as to Accused No. 2 leaving Mohammadpura with Naran and both going together to Dabhali is false. Thirdly, it is contended that, in any case, the evidence adduced is insufficient to establish the offences alleged against the appellant, and that there is a reasonable doubt, the benefit of which should be given to him. The question which, I think, should first be determined is, whether or not the evidence as to Naran being in the company of Accused No. 2 on October 10, should be accepted, for that question also affects the issue as to identity of the remains. (After discussing the evidence his Lordship found that Naran was murdered and proceeded further.) In addition we have the discovery of pieces of burnt cloth in a neighbouring field. If these pieces of cloth were part of the clothes that Naran was wearing at the time of his death, then it is a piece of evidence pointing to an attempt to destroy property that might lead to the identification of the remains; and this supports the theory of a crime having been committed. The fact of their being found also in a field where the appellant admits that he and his brother used to reside occasionally and kept a fire-place for cooking and other purposes, make it a very important piece of evidence against him. If the appellant or any of his brothers committed this murder, it is not improbable that the clothes would be destroyed not far off from where the murder was committed, and this field would be the nearest convenient place where they could be burnt.

(3.) Is there, then, any evidence to support a finding that these pieces of cloth were in fact part of Naran's clothes, removed after his death? Though it has not been brought out clearly in the Sessions Court judgment, or in the argument before us, I think there is such evidence. In my opinion, it is clearly proved by the evidence of the Sub-Inspector (Ex. 49), the Head Constable (Ex. 56), and the Punch witness (Ex. 45), read with the Punehnama, Ex. 47, that these burnt pieces of cloth were discovered by the police in consequence of information given by Bhulabhai, Accused No. 1, that he had burnt the clothes of Naran and would show the police where he had done so. Thereupon, ha took them to this field, and pointed out the ashes, in which the pieces of cloth were found. This was on the morning of November 1, after the discovery of the remains. Accused No. 1 was then in the custody of the police, within the meaning of Secs.26 and 27 of the Indian Evidence Act, under the ruling in Queen-Empress V/s. Kamalia [1886] 10 Bom. 595, as held by the Sessions Judge. Consequently, this information that he had burnt Naran's clothes and would show them where he had done so, is admissible in evidence under Section 27, just as in Queen-Empress V/s. Nana [1889] 14 Bom. 260 it was held that an accused's statement, that he had buried certain property in the fields was held admissible. This information was no doubt, not a confession of complete guilt, so far as the charge of murder was concerned, but it was a direct admission of constructive guilt, for his burning the clothes primarily implied that he had taken part in this murder; and, under Section 237, Criminal P.C., he could have been convicted under Section 201, Indian Penal Code, although not charged with this offence of. Begu V/s. Emperor . Accordingly, under the ruling in Queen-Empress V/s. Nana [1889] 14 Bom. 260 and similar rulings such as Queen- Empress v Javecharam [1895] 19 Bom. 363 and Emperor V/s. Haji Sher Mahomed A.I.R. 1923 Bom. 65, it amounts to a confession within the meaning of Section 27. In my opinion it can (as stated in Ameer AH and Woodroffe's Law of Evidence, 8 Edn., p. 295) also be treated as a confession within the meaning of Section 30, Indian Evidence Act, and though it does not mention the appellant (Accused No. 2) and says that Accused No. 1 alone burnt the clothes, still it certainly "affects" Accused No. 2 from the very fact that the field where the clothes were burnt was that of Accused No. 2, as well as Accused No. 1, that they admittedly used to reside there occasionally; and that Accused No. 2 was seen in this vicinity with Naran on October 10. It may be added that, according to Fulabhai, whose evidence I accept, he had told Fula that he was going to his, mal land, i.e., this very field, and the neighbouring ones. The word "affect" is a very wide one, and though, no doubt, the ordinary case contemplated by Section 30 is where the confessing accused directly implicates another accused, as well as himself, I can see no sufficient reason for holding that the section is limited to such a case, and does not also cover a case where the confession indirectly affects a co-accused. In Empress V/s. Rama Birapa [1878] 3 Bom. 12, West, J., distinctly contemplates the case of a confession of the limited kind allowed by Section 27 being taken into consideration against a co-accused tinder Section 30, as is pointed out in Ameer Ali's Law of Evidence at p. 303. That the confession in question affected Accused No. 2 was recognized by that accused, who, in para. 7 of his written statement, Ex. 68, explains the pieces of cloth as being merely rags used for lighting a fire. He adds: The pieces of cloth may therefore have been found from the place but nothing has been proved thereby.