HORILAL MOHANLAL GOND Vs. EMPEROR

JUDGEMENT

(1.) THE appellant Horilal and two others by name Bhagchand and Hiralal were originally challaned under Section 302, I.P.C., for murdering one Dhanaram and his wife Mt. Kala. In the course of the proceedings, Horilal was granted pardon under Section 337, Criminal P.C., but when he was examined in the Court of the Sessions Judge, Chhindwara, (in the Sessions Trial of Bhagohand and Hiralal which was numbered 25 of 1938) he turned hostile to the prosecution and was consequently declared to have broken the conditions of his pardon. On the certificate of the Public Prosecutor that Horilal had forfeited the pardon, criminal proceedings were started against him for the offence of murder in the Court of the Head quarters Magistrate, First Class, Seoni, who committed him to the Court of Session, Chhindwara, to stand his trial. The learned Sessions Judge found that Horilal failed to comply with the conditions of the pardon entailing its forfeiture. As a result of the trial Horilal was found guilty of murder and sentenced to death subject to confirmation by this Court.

(2.) THE outline of the case may be briefly stated. On 29th October 1938 Dhanaram, the deceased, accompanied by his wife Mt. Kala, the deceased, and her younger sister Mt. Ghasiti left their village Sukri in a bullock cart for village Simariya where Dhanaram's uncle-in-law Onkar resided, Mt. Kala was wearing ornaments on a somewhat generous scale. The party halted for a time at mouza Kohka to witness the festival of Madai where it is alleged they were observed by Horilal, Bhagchand and Hiralal. They left Kohka about the time of sunset and while they were half way between Kohka and Gadkhapa in the Kohka forest the couple were done to death. The girl, Mt. Ghasiti, however, escaped unscathed and she disclosed the details of the murder to one Beharilal of Gadkhapa who happened to be on his way to Kohka. On a message sent by him to mouza Godawadi Narayan Prasad, Sub-Inspector of Police, hastened to the spot and held the inquest and seized certain articles. The investigation was then taken over by Ehafazul Rahman Khan, Sub-Inspector of Police, Seoni, who arrived there on receipt of information about the incident from Zadu, the elder brother of the deceased Dhanaram, through Rupchand, Kotwar. In the course of the investigation Horilal's kurta, Article P-1, was seized from his person. Horilal, it is alleged, discovered an axe, Article D-l, from the field of one Gulli and he also led the police to Bharamal's field where Mt. Kala's ornaments were stated to be buried, but they were not discovered. He, as alleged, took the police to the scene of the occurrence and pointed out various places where Bhagchand and Hiralal lay in wait for their victims before the commission of the crime. Horilal was arrested on 6th November 1938 and produced before Mr. R.P. Kolte, Magistrate, First Class, on 8th November 1938 for the record of his confession. Horilal was sent back to jail as the Magistrate stated he could record his confession on 11th November 1938. On that day, the Magistrate received a memo. from the Sub-Inspector asking him not to record his confession. He was therefore sent back to the jail custody with an order that he should be produced on 18th November 1938.

(3.) APART from his statement, Ex. P-25, the circumstances proved against the appellant are that he was seen in the company of Bhagchand and Hiralal on that critical evening, that none of the three was present to hear the recital of Ramayana at the house of Mullu (P.W. 13), that he pointed out the axe, Article O, that he led the police to a place where certain ornaments were supposed to have been concealed although they were not discovered, and that his Kurfca, Article P-l, was found bloodstained. A critical examination of each of these circumstances exposes its weakness. Mt. Budho (P.W. 24) saw Horilal and Bhagchand sit-ting together under the eaves of the house of Hiralal at mouza Kohka. It was towards evening and they were smoking chilam. The witness however says they were in the habit of sitting together like that as she had seen them together quite often in the past. It may be that the three individuals did not attend the Ramayana recital but that is not by itself sufficient to show that they had gone out for committing murder. The axe, Article O, pointed out by Horilal does not make any contribution to the evidence as the Imperial Serologist was not able to detect any blood on the scrapings from the axe blade sent to him. His Kurta, Article P-l, was also devoid of any evidentiary value as the bloodstains on it, had become disintegrated and their origin could not be determined. His conduct in leading the police to the place where the ornaments were supposed to be buried loses all its significance in the absence of the discovery of the ornaments. Mt. Ghasiti was not examined as a witness against Horilal presumably for the reason that she had not stated in the previous case that she had seen Horilal.