JUDGMENT
1. This is a reference under Section 307 of the Code of Criminal Procedure by the Sessions Judge of Patna.
2. The learned Sessions Judge has disagreed with the unanimous verdict of the Jury with respect to five of the accused and has agreed with respect to the remaining eight. Accepting the verdict of the Jury with respect to the latter eight accused, the learned Sessions Judge has as quitted them and we have nothing to do with them in the present reference.
3. The five accused with whom we are concerned in the present reference are Bhuilotan Singh, Gobind Singh, Dipan Singh, Jag Lal Singh and Bipat Singh. The accused NOS. 1 to 3 were tried under Section 302, Indian Penal Code, for committing murder of one Subans Singh. Gobind Singh and Dipan Singh were further charged under Section 302 read with Section 34, Indian Penal Code. Jag Lai Singh and Bipat Singh were charged under the said offence re id with Section 34, Indian Renal Code. In short, all the accused now before us were charged with the murder of Subans Singh.
4. The case for the prosecution is that on account of a long standing enmity between the deceased Subans Singh and Bhuilotan Singh, the accused, the party of Bhuilotan Singh waylaid the deceased on the day of occurrence, while he along with his two other relations, Sita and Ganga Singh, were returning home from their field in the Bhatan called Gullaria Khanda appeartaining to village Gopalpur, The deceased Subans Singh, a resident of Tonari, and his party are said to have gone towards the field in order to look after their crops about 2 gharis (about 5 P.M.). The accused are residents of Gopalpur, which is at a distanae of about 1/4th mile from the place of occurrence. When the deceased Subans Singh and his party were returning and were on the paith way near the point A marked in the Police map, they saw a mob consisting of 13 persons coming towards them from Gopalpur side and when they came to about a rassi or so, Sita Singh drew the attention of Subans Singh to the mob. Subans Singh did not suspect any foul play and asked his companions to march on. When they came to close quarters Bipat, who was ahead of the mob, cried out “beat all,” Upon this Bhuilotan Singh rushed up and struck Subans with a gharasa on the shoulder. Subans fell down on the chur. Thereupon Gobind and Dipan gave gharasa blows, the former at the nape of the neck and the latter at the top of the right arm. After that Subans fell down from the chur to the field close by, Bipat then said: “Cut off the head quickly.” On this Bhuilotan cut off the head with his gharasa, placing the upper portion of the body on the chur or art and placing one foot on the chest. The severe was given to Juglal, who carried it towards the north.
5. The occurrence is said to have been witnessed by the two companions of Subans, Sita and Ganga, who had upon hearing the shout of Bipat, run away through the fields north of the place of occurrence (point A marked in the Police map) and had come to a place marked D at a distance of 100 feet from point A where Subans was murdered. Kali Dusadh and Damodar Dusadh, who were in their respective fields in that Bhatan, saw the occurrence from their fields. Bansilal, who was returning from Masuri, also saw the occurrence.
6. The case of the prosecution rests principally upon the evidence of the aforesaid five eye-witnesses. Besides this, evidence has been given of a finger print expert, Ghulam Sibtain, to prove that the impression of the thumb of the dead body agreed with that on Exhibit 7, a registered deed executed by Sabans Singh. The head of the deceased, which as stated above was removed by Juglal, was discovered five days later by the Dafadar at a distance of a mile northwards of the plane of occurrence. The head was in a smashed condition and was perhaps not capable of proper identification,
7. It is not necessary for the purpose of disposing of this reference to refer to the other evidence on the record, whish is more or less of a formal character. The case of the prosecution must stand or fall upon the evidence of the aforesaid five witnesses, it is necessary at this stage to refer briefly to the history of the litigation between Subans Singh and Bhuilotan Singh, Sabans and his family are part proprietors of village Gobindpur, where the accused Bhuilotan Singh bolds some land both on nagdi and bhauli rent. Subans obtained some rent decrees against Bhuilotan two months before the occurrence. He also brought a suit for bhauli rent, which was pending at the time of the occurrence and was decided in favour of Subans after the occurrence. In December 1919, three members of the family of Bhuilotan were murdered. In that case Subans and the members of his family were sent up and were ultimately convicted. Sahdeo, a member of Subans’ family, got transportation, and he and Ram Chandra, his brother, were fined Rs. 250 each. The conviction was upheld by the High Court a few months before the present occurrence. In that case Mahadeo, father of Kali, was also accused but was apparently not sent up. There was also a proceeding under Section 145 of the Code of Criminal Prosedure between the two families. Mahadeo gave evidence in that case in favour of Subans. Bansi Lal is a Patwari of Sabans and figured in most of the cases referred to above as a witness on behalf of Subans, Damodar Singh, P.W. No. 15. is a salis or appraiser of bhauli produce of Subans. He was also an accused in the murder case but was not sent up. In his cross examintation he admits that he was a witness for Subans in two or four of his cases. He is also a very distant gotia of Sabans.
8. The above narration of the litigation between the two families and the part taken by the aforesaid witnesses clearly prove the facts (1) that there was an enmity of long standing between Subans Singh and Bhuilotan Singh and (2) that the witnesses for the prosecution are partisans of Sabans. Before discussing the evidence in the case I will also refer at this stage to some salient points raised both in the Court below and before us, the first being the identity of the body with that of Sabans, the deceased. The witnesses for the prosecution referred to above stated that they saw the occurrence at whish the deceased Subans was killed by the accused and his body fell first on the ridge and then into the ditch full of water; that it was pointed out to the Dafadar, who instantly arrived on the spot after having received information from Kali; that after the information was lodged at the Thana three or four miles away, the Sub-Inspector arrived at 2 A.M. and the body was identified to him as that of Sabans. If this evidence is accepted, there can be no question as to the identity of the dead body with that of Subans. On behalf of the defence the evidence of the eye witnesses is challenged and it is said that if that evidence is deleted, there is no satisfactory evidence on the record to prove the identity of the dead body with that of Subans, Subans was in jail as a prisoner under trial in connection with the Sessions case of 1919 and the salient marks on his body were noted by the Jail Doctor, who has been examined as a witness in the case. The Sub-Inspector drew up the inquest report and noted some prominent marks on the dead body and also such other marks as were stated to him by the witnesses to be peculiarities of the body. On behalf of the defense it has been pointed out that the marks noted by the Doctor in jail last year upon the body of Sabans and those by the Sub-Inspector on the dead body in question and those deposed to by the witnesses in the case are so dissimilar in their nature that they cannot point to one and the same body. In other words, it is urged that the Sabans who was in jail as a prisoner under trial last year was not the Sabans alleged by the prosecution whose body was found at the place of occurrence (point A marked in the Police map). The question for determination in whether the contention is substantial or that the difference in the description of the prominent marks on the body of Snbans in the jail and on the body found at the place of the occurrence is of an immaterial character and consists only in the mode of describing the same marks of identity in a different way. The decision on this point will be given later on.
9. The second important point for determination in the case is whether the occurrence took place at about 6 P. M. on the l7th September 1910 as alleged by the prosecution, or that it took place later in the night between 8 and 9 P.M. The learned Counsel on behalf of the defence contended that the latter was the time of the occurrence, and in support of it he relied upon the entry in the first column of the first information report in which under the head “Date and hour when reported” the time is mentioned to be 10-30 P.M. It is said that the Thana was only three miles away from the place of occurrence and consequently if the occurrence had taken place at 6 P.M., it would not have taken 4f hours to reach the Thana to have the information recorded. It is also said that the Doctor in his evidence stated that he found undigested rice with acid smell in the stomach of the deceased at the time of the post mortem examination and consequently allowing two houre as the time of having taken his meal so as to make the rice appear in the shape in which the Doctor found it, the occurrence must have taken place two hours before 10 30 P.M., that is, at 8 30 or 9 P.M. On behalf of the prosecution the argument is met by the reply that there is no evidence on the record to show at what hour the deceased took his meal on the day of the occurrence and consequently the fact that undigested rice was found in his stomach would not necessarily lead to the conclusion that the occurrence must have taken place late in the evening at 8 30 P.M.
10. The third point of importance raised in this case is that the place of occurrence is most unusual and unnatural. The accusers village was at a distance of 425 feet and that of the deceased was at a distance of half a mile from the place of occurrence. There is nothing on the record to show that the accused knew of the movements of the deceased or that he had that evening gone to see his fields. It is said that the occurrence could not have taken place so near the village without attracting the notice of his co-villagers. Apart from this reasoning another what may be called a substantial reason has been advanced on behalf of the defence to show that the place of occurrence must have been other than the point A, because the Police did not discover any human blood on the spot. The scrapings from the ground which were sent to the Chemical Examiner have been pronounced to contain blood, but the Chemical Examiner is not in a position to say whether it was human blood or not. Then it is said that the blood, according to the case of the prosecution, must have fallen at three different places inasmuch as three of the accused, Phuilotan, Gobind and Dipan, gave three different outs all of which were of such a nature as to cause a copious flow of blood. The learned Government Advocate’s reply is that the blood sent to the Chemical Examiner was disintegrated and, therefore, it was not possible to determine with exactitude that it was human blood or was of any other animal and that the absence of this evidence does not necessarily go to show that the blood found was not human blood.
11. Again, as to the blood not having been found at three different places, the evidence, it is said, does not point to the fact that the accused shed blood at three different places, The deceased was attacked suddenly and three cuts were given to him, and the last out whereby the head was severed necessarily caused flow of blood which the Sub-Inspector found on the spot.
12. Fourthly it has been urged on behalf of the defence that the occurrence, as alleged to have taken place, is improbable. Bipat Singh was, according to the case of the prosecution, ahead of the mob, at a distance of a bans from the rest, yet all the while he is simply said to have directed the assault and, after Subans was dead, the cutting off of his head. He himself, though nearest, did not attempt to cause any assault on the deceased. Again, the accused coming in a mob armed with deadly weapons such as ghrasas, etc., were seen from a distance by Sita Singh and the attention of Subans was drawn to it; yet they all allowed themselves to approach the rioters and to be assaulted by them without any attempt to run away from the plane when there was time for it. The learned Government Advocate’s reply is that Subans could not possibly anticipate that the rioters were coming to assault him and consequently he went along undaunted and unafraid and that, therefore, there is nothing unusual in the conduct of Subans or his party as is alleged by the defense.
13. Fifthly it is said that the aforesaid five witnesses were not the aotua eye witnesses of the occurrence. The details under this head will be noticed later on, but it may be stated here that the criticism of the defense is that Sita Singh and Ganga Singh fled away from the place of occurrence and came by the circuitous way to point D where they alleged to have seen the occurrence, but before they arrived at that place the occurrence must have been over, and that Kali, Damodar and Bansi were, according to the case laid in the first information, not the eye-witnesses of the occurrence at all.
14. I have tried to present both sides of the case. This appears to be the respective case of the prosecution and the defense also in the Court below.
15. The learned Sessions Judge in his detailed charge to the Jury has summed up the case of both the parties fairly and fully. Upon the presentation of the case of both sides by the learned Sessions Judge, and I believe upon the full arguments on both sides by eminent lawyers, the Jury returned an unanimous verdict of not guilty. The learned Sessions Judge, on the other hand, was of opinion that the case against the appellants, the five accused before us, was fully established. He indicated his views in summing up the case in the manner in which he is under the law entitled to do, leaving the Jury to form their own independent opinion. He has repeated the same in his letter of reference to this Court, Thus whereas on the one hand we have got the detailed reasons for the opinion of the learned Sessions Judge for holding that the case against the five accused before us has been proved, we have not got the reasons which prompted the Jury to return their verdict of not guilty. The verdict of the Jury is in the following terms: “We unanimously find all the accused not guilty.” The learned Judge thereafter put two questions to the Jury. The answers and questions are given below:
Q. Do you find that it was the dead body of Subans?
A. We have got doubts as to that even.
Q. You say that the aaaused are not guilty, do you hold they were not present at the time of crime?
A. Yes.
16. At that very time the learned Judge made up his mind to disagree with the verdiat of the Jury as is clear from the following order:
The Jury are unanimously of opinion that all the accused are not guilty. I disagree with this verdiat in case of the accused Bhuilotan Singh, Gobind Singh, Dipan Singh, Juglal Singh and Bipat Singh and I refer their case to the Hon’ble High Court,” etc.
17. On a reference under Section 307 of the Code of Criminal Procedure this Court has to pass its order acquitting or convicting the accused ”after considering the entire evidence and after giving due weight to the opinion of the Sessions Judge and Jury.” It was pointed out by Mr. Justice Davies in the case of Emperor v. Chellan 29 M. 91 : 3 Cr. L.J. 371 that the Legislature, in directing that this Court should duly weigh the opinions of the Jury gives an implied authority for the taking of such opinions. And the Sessions Judge would have done well, before referring the case to the High Court, to have recorded the opinions of the Jury. We also agree with the judgment of Sir Subrahmania Ayyar, Officiating Chief Justice, and Mr. Justice Boddam that the circumstances that no such reasons have been ascertained does not warrant the High Court to destine to go into the evidence and to arrive at its own judgment, after giving due weight to the views taken by the Judge and the Jury as to the guilt or innocence of the accused. This, to my mind, sums up the whole law on the subject and has been accepted in various cases: vide Emperor v. Surnamoyee Biswas 21 Ind. Cas. 900 : 41 C. 621 : 14 Cr.L.J. 660, Emperor v. Asgar Mandal 48 Ind. Cas. 500 : 22 C.W.N. 811 : 20 Cr.L. J. 20, Emperor v. Pramatha Nath Bagchi 55 Ind. Cas. 282 : 30 C.L.J. 508 : 21 Cr.L. J. 266, Queen v. Sham Bagdi 13 B.L.R. App. 19 : 20 W.R. 73 Cr., Emperor v. Annada Charan Thakur 2 Ind. Cas. 497 : 36 C. 629 : 13 C.W.N. 757 : 9 C.L.J. 638 : 10 Cr.L.J. 32 and Emperor v. Mussammat Zohra 55 Ind. Cas. 294 : 1 P.L.T. 657 : 21 Cr.L.J. 278.
18. The above-mentioned cases also establish the proposition, which is plain upon the language of Section 307, Clause (3), itself, that upon such a reference the Court is bound to consider the entire evidence and give weight to the opinions of the Sessions Judge and the Jury. Although the learned Sessions Judge in this case would have been well advised if he had asked the Jury to give the reasons for their verdict. We do not think that we can refuse to entertain the present reference, The absence of the reasons of the Jury for their verdict only enhances our responsibility in the matter and requires as to go into the evidence more carefully.
19. The arguments in the present case on behalf of the accused by two eminent Counsel of this Court have left nothing to be regretted that the reasons for their verdict were not given by the Jury. We have carefully considered the entire evidence in the case and have listened to the arguments on both sides at great length. As already observed, the entire case rests upon the evidence of the five eyewitnesses, The learned Sessions Judge in his charge to the Jury pointed out ‘that the evidence on the record does not substantiate that Bipat and his family had any apparent motive for this diabolical murder.” The name of Bipat was not mentioned to the Dafadar who came immediately after the occurrence on the spot, either by Sita Singh or by Kali. There is an inherent improbability, as already indicated, in the act attributed to Bipat in the assault, for if he was in front of the rioters close to the deceased and, as the prosecution has put it, the leader of the mob actuated with one and one motive only of murdering the deceased, he would not have resisted the temptation of using the gharasa which he himself had in his hand. Kali Dusadh says that Bipat gave orders and then ran up to Subans, It may well be asked why he did not then use his gharasa to hit Subans, and waited till his followers oame. The Jury has unanimously acquitted him. We have no hesitation in saying that the learned Judge has in a way suggested that there are strong circumstances in his favour. There is no reason why we should not accept the verdict of the Jury in the present case as regards Bipat, and without going further into details we acquit him.
20. The learned Judge has given the benefit of doubt to eight of the accused persons. He has refused it to Juglal, upon the ground probably that a very prominent part was attributed to him by the prosecution, namely, that after Bhuilotan at the bidding of Bipat had cut off the head of the deceased, the head was entrusted to Juglal, who carried it in his hand and threw it away somewhere. We do not think that the evidence against Juglal is conclusive, nor do we think that the part, attributed to him has been satisfactorily established to bring him underthe purview of Section 34, Indian Penal Code, and to make him liable constructively for the murder of Subans. We, therefore, aoquit Juglal also.
21. The case of the three accused persons Bhuilotan, Gobind and Dipan has to be considered in some detail. This, therefore, brings us to the consideration of the five points that arise in the case and which have been enumerated above and the arguments for and against those points. The learned Sessions Judge has disposed of them and after a careful consideration, we have not been able to discover in the arguments of the defence anything to show that the explanation of the various objections raised by the learned Counsel and as given by the learned Government Advocate is not satisfactory. No doubt the enmity between the two families of Subans and Bhuilotan is acute and the witnesses are partisans of Subans, yet that is not in itself a sufficient reason to hold that the entire case of the prosecution is false or that the witnesses are not giving a true account of the occurrence. Whether the time o! the occurrence is 6 P.M. or between 8 or 9 P.M., it is impossible to believe that the deceased could have been murdered elsewhere and his body thrown at point A. If he was murdered under different circumstances and so early in the evening as, taking the time suggested by the defense, between 8 and 9 P.M., it would not have been possible to bring the body at the point A, fresh after the murder, for, according to the Doctor’s evidence, the murder must have taken place 30 or 40 hours before the time when he examined the body on the 19th September at 9 A.M. This is not the time to dispose of a dead body after murder. The murderers could have waited till it was late in the night when the people would retire to bed. The information was lodged either at 9 30 or at 10 30 P.M. The dead body must, therefore, have been placed there before the information was despatched to the Thana and consequently it must have been at 8 P.M., if not earlier. As observed above, that is not the time to dispose of a dead body after murder. There is nothing to show that the deceased did not take his meals late in the evening and no inference can be drawn from the evidence of the Doctor having found undigested rice in the stomach of the deceased. The time for the digestion of meals is still uncertain in medical jurisprudence. No hard and fast rule oan possibly be laid down on it, as it depends upon various circumstances, the constitution of the man, the climate of the place in which he lives and various other circumstances. I have, no doubt, derived in my experience great help from the evidence of the Doctors upon the time of digestion, who have always found it not so exact and accurate as to fix accurately the time of a particular event from the fact that the food was found in a particular condition digested or undigested in the stomach. The books on medical jurisprudence will themselves show that the information upon the subject must only be guess work. I attach great importance to the argument of the learned Counsel on behalf of the defence that three of the witnesses, Kali, Damodar and Bansi, should not be accepted as eyewitnesses because they are not said in the first information to have actually Been the occurrence. No doubt it is possible that they had seen the occurrence and were not themselves seen by the informant. The informant in one place said that he made the statement in the first information contrary to what it appears in record and in the next breath he says that he committed a mistake. The benefit of this must be given to the accused, particularly when the Jury has not relied upon the evidence of those witnesses. I would, therefore, from my consideration discard the evidence of Kali, Damodar and Bansi, regard also being had to the fact that they figured almost in all the prior litigation between the two families of Subans and Bhuilotan.
22. Then remains the evidence of Sita Singh and Ganga Singh. True, they are relations of Subans, but there is no reason why they should not be believed as having gone in the company of the old man to see his field in the evening of September month, when the irrigation of fields is very important. There is also no reason to discredit the evidence simply because they ran away from the place and came to point D, which is 100 feet from the place of occurrence. Sita Singh is said to have reported the murder at once to the Dafadar and thereafter he went to the Thana. The statement in the first information appears to he true and, therefore, we have no hesitation in accepting it. In doing so we do not show in the least any want of confidence generally in the opinion of the Jury, We do not want to lay down that in every case where the Judge differs from the Jury he is entitled to refer the case to the High Court under Section 307, nor do we want it to be understood that this Court will differ from the view of the Jury unless and until it feels that a strong case has been made out against the accused. We have, therefore, given our anxious consideration to the opinion both of the Jury and of the Judge. Regard being had to the evidence in the case, we cannot but convict the three acoused of the charge of murder.
23. We accordingly convict Bhuilotan, Dipan and Gobind for having murdered Subans under Section 302, Indian Penal Code, and sentence each of them to transportation for life, as it is the only alternative sentence that can be awarded to the accused in this case.