JUDGMENT
Shrivastava, J.
1. The Additional Sessions Judge, Hoshangabad, has convicted Jamandas of the offence under Section 302, I. P. C., and sentenced him to death, ‘holding him guilty of the murder of Mr. Raghuraman on July 12, 1961, in a running train between Bhopal and Itarsi. The trial Judge has made the reference (Criminal Reference No. 2 of 1962) for confirmation of the sentence, while Jamnadas has preferred Criminal Appeal No. 264 of 1962 from his conviction. Jamnadas was tried for the offence under Section 392, I. P. C. also but has been acquitted. The other accused, Shaukat, who was jointly tried with Jamnadas for offences under Sections 201 and 411, I. P. C., has been acquitted of both the charges. The State has preferred Criminal Appeal No. 283 of 1962 for setting aside the acquittal of Jamnadas of the offence under Section 392, I. P. C., and also for setting aside the acquittal of Shaukat of the offences under Sections 201 and 411 I. P. C.
2. Mr. Raghuraman, a young man of 25, was a lecturer in Civil Engineering in the Government Polytechnic Institute, Khandwa. He resided in the hostel of that institute. On July 9, 1961, he left for Bhopal on duty, (per statements of Lecturers Bhargava, P. W. 20 and Anthony, P. W. 21, and Principal Ramchandra, P. W. 24). On the 12th July, 1961 he reached Bhopal railway station to commence his return journey to Khandwa by 58 Up Pathankot Express. The train had not arrived but he was told that in pursuance of a message, that there was no accommodation in the first class compartments, booking for the first class was withheld. He, therefore, purchased a second class
ticket. However, he approached the Assistant Station Master to help him in getting accommodation in the first class. The Assistant Station Master assured him to contact the Conductor and get him accommodation in a first class compartment, if possible. When the train arrived, the Conductor was seen by the Assistant Station Master for providing accommodation in a first class compartment. The Conductor disclosed that one first class coupe was vacant, as it was reserved from Savda to Bbusawal for Shri Kannamwar, a Minister. Savda is a station beyond Khandwa (between Khandwa and Bhusawal). And since Mr. Raghuraman was to travel only up to Khandwa, he could be accommodated in that coupe. Mr. Raghuraman, there-fere, occupied that coupe (marked ‘C in bogie FCQ 2836). He was all alone in that compartment. He had an attachee and a hold-all. The train left Bhopal at 12.28 hours. He was killed somewhere before the train arrived at Itarsi at 14.30 hours. These facts, which are proved by Assistant Station Master P. N. Tiwari, (P. W. 8) and Conductor K. S. Rawat (P. W. 1), are not in dispute.
3. Conducto’r Khusalsingh Rawat says that he was in charge of the train between Jhansi and Itarsi only; he was to hand over to another con-doctor-guard at Itarsi. When the train reached Hoshangabad, he seated a lady passenger in a first class compartment. However, her husband requested him to provide her accommodation in a Ladies’ compartment. When the train reached Itarsi, he accommodated her in a Ladies’ First Class compartment, and thereafter he started giving over to Conductor Ghesas. He was explaining to him which passengers were seated where and how far they were to travel. He specifically mentioned about the reservation of ‘C’ compartment for Shri Kannamwar and that in that compartment there was a passenger going upto Khandwa. In the course of this conversation, when he passed the ‘C’ compartment of the first class bogie, he happened to notice that the attachee case was lying open on the table inside the compartment and its contents scattered, and the passenger lying dead on the floor of the compartment in a pool of blood. He posted a police constable there and reported the matter in the police station. He returned from tbere with the Station House Officer. Both the doors of the ‘C’ compartment were locked and the bogie was detached from the train and another was substituted. Passengers of the detached bogie were accommodated in the newly attached one, and the train left Itarsi. The detached bogie was guarded by the police at the Itarsi railway station. At about 5 p.m., an inquest was held. Photographer Prem Swarup Nigam (P. W. 7) took photographs of the inside view of the compartment from different angles (Exhibits P 45 to 47). Seizure memos of the contents of the compartment were drawn up. Here, it must be mentioned at once that by the side of the dead body weie lying white trousers (Art G) in a position which unmistakably indicated that the garment had been abandoned from the body of its wearer at that very place and left untouched. (See Photograph Ex. P. 45 and the statement of Garg P. W. 5). It was badly smeared with blood. It had a dhobi-mark ‘JD’. It is made of drill as
generally used by waiters and bearers of Refreshment Rooms and by members of railway staff.
4. M/s. Bedi Brothers ran the Refreshment Room at Bhopal railway station. It supplied meals to passengers travelling in the 58 Up Pathankot Express, which was scheduled to reach there at mid-day. Messages were received in advance and accordingly waiters were entrusted with the requisite number of meals and also their bills. Accused Jamandas, bearer No. 13, used to supply meals in the sleeper coach and accussed Shaukat, bearer No. 6, in the first class compartments. The train stopped at Bhopal railway station for ten minutes, which time was insufficient for the passengers to finish their meals and return the utensils. The bearers, therefore, travelled in the train and generally returned by a Down train either by 57 Down Pathankot Express or by the Grand Trunk Express, after collecting the utensils. The bearers of the Referesh-ment Room wore a prescribed dress consisting of a white closed-collar coat and white trousers, which uniform was supplied to them by the contractors, Bedi Brothers. All this is stated by P. W. 3, Con-setio, the Assistant Manager of the Refreshment Room, and Manager Shiv Raman (P. W. 10). These facts are admitted by both the accused.
5. On the day of occurrence (12th July), meals for 8 first class passengers and for 13″ sleeper-coach passengers were issued from the Refreshment Room for the 58 Up Pathankot Express and they were carried by Shaukat and Jarnnadas respectively. Both of them had also been given some extra Thalis, evidently, to be served to those passengers who had not ordered in advance. As was usual, Jamna-das and Shaukat both travelled in the train in order to collect the utensils as also the payments from the passengers. Shaukat returned from Hoshangabad by 57 Down Pathankot Express, which crossed the 58 Up Pathankot Express at that station. He reached Bhopal at 15 hours and deposited the utensils and the money received from all the passengers, who were served with meals by both the bearers in the 58 Up train. Jarnnadas, however, did not return from Hoshangabad but proceeded on to Itarsi, where he boarded the Grand Trunk Express and returned to Bhopal the same evening at about 19 hours. These facts are proved by P. W. 3 and P. W. 10 and are admitted by both the accused, except that Jamnadas says that although he had handed over the entire collection of payments to Shaukat. yet three ‘Thalis’ remained with him. He does not deny that he went up to Itarsi. It is further admitted by Jamandas that on that day he was putting on a blue bush shirt and the uniform white trousers and a white coat and that when he returned in the evening, he was again putting on the same blue shirt (Article H.). But it is in controversy whether the trousers (Article B) that he was wearing when he returned to Bhopal were the same which he had on his person when he had commenced his outward journey.
6. On the 13th July, four garments, each bearing the mark ‘JD’ were seized from Munne Khan’s laundry (per seizure memo Ex. P. 24). They are Articles C and E (white closed-collar coats)– and Articles D and F (white drill trousers). Launderer
Munne Khan (P. VV. 11) and Assistant Station Master Tiwari (P. W. 8) prove the seizure. Munne Khan says to have a laundry near Bhopal Railway Station. He himself marked every garment which came to his laundry for washing, in order to identify it. The distinguishing mark in each case consisted of the initials indicating the owner’s name. For instance, he would mark his own clothes by letters ‘MK’. These marks were inscribed with a solution made of elixirin and alum, dissolved water. Such marks are permanent and need not be repeated after every washing, as the marks do not vanish when the garment is washed. He says that he knows both the accused as his customers and that he used to mark clothes of Jamnadas by letters ‘JD’. He identifies his marks ‘JD’ on the trousers Article G (recovered from the compartment), as also on the trousers Articles D and F; also on the coats Articles C and E (clothes which were seized from his laundry) and also on the bush shirt Article H and the coat Article J. (both of which Jamnadas was admittedly wearing on the day of occurrence). He says that two coats and two trousers (Articles C,D,E and F) were seized by the police from his laundry under Ex. P. 24. When trousers Article B were shown to him, he said that that garment did not bear any mark of his laundry. We have very carefully perused the statement of this important witness. There is nothing in his cross-examination to doubt his veracity. The trial Judge has rightly believed him.
7. In his statement made before the Sessions Court under Section 342, Criminal Procedure Code, Jamnadas admits the clothes (coats and trousers), which were seized from Munne Khan’s laundry and which are Articles C,D,E and F, to be his (Q/A. 28); he also admits the bush shirt (Article H) to be his (Q/A. 31). He admits that he used to get his clothes washed in Munne Khan’s laundry (Q/A.24). But he denies the incriminating trousers (Article G), of which the identity was to be ascertained, to be his. He. pleads ignorance as to whether Munne Khan had marked his clothes, Articles C,D,E,F and G, with the letters ‘JD’ (Mujhe Nahin Maaloom). It is noteworthy that the accused does not deny the existence of the marks on the clothes nor the practice that the laund.erer used to mark his clothes by the letters ‘JD’. He avoids to admit this fact by saying that he does not know. He does not categorically dispute that fact. Furthermore, it is remarkable that he not only admits the coat Article J. (which he was wearing on the day of occurrence) to be his, but also admits that it had dhobi-mark ‘JD’.
“Question 47.
SHAHADAT HAI KI IS COAT (ART.
J.) MAIN JO DHOBI : MARK PADA HAI WOH IS MAIN PAHLE SE PADA HUA THA. TUMHE
KYA KAHNA HAI ?”
Answer.
ZABT NAHIN KIYA.”
“Question 48.
MUNNE KHAN (P.W. 11) KA KAHNA
HAI KI YEH DHOBI MARK US KE HAATH KA LAGAYA HUA HAI AUR YEH COAT TUMHARA HAI.
TUMHE KYA KAHNA HAI?”
“Answer
COAT HAMARA HAI. US ME DHOBI KA
NISHAN PAHLE SE LAGA HAI.”
8. These statements of Jamnadas, which he made in the Court of Session, lend full support to
Munne Khan’s evidence, and leave no room for doubt that, besides the other clothes, the trousers (Articles D and F) are his and that they had the dhobi-mark. ‘JD’. The incriminating trousers (Article G) bear an exactly similar dhobi-mark J.D. From all this, it must irresistibly be concluded that the trousers (Article G), which were found by the side of the dead body in the compartment, were of no one else but Jamnadas. We have ourselves seen all these trousers and coats and the bush shirt. It is conspicuous that in cut and design also, the is crimmating trousers (Article G) fully resemble the admitted trousers (Articles D and F), but the trousers Article B differ from them. On the hip of the trousers D, F and G are patch pockets of the same size and design. Trousers Article B have cut pockets. It is a brand new garment in appearance and has no dhobi-mark. Patently, all the marks ‘JD’ appear in the same hand, in the same style of writing. The formation of ‘D’ is rather typical.
9. All this leaves no manner of doubt that the garment (Article G), which was found near the dead body, was one of those trousers which were supplied to Jamnadas by the caterers. The identity of Article G is fully established. It is also satisfactorily established that the particular trousers (Article B) which Jamnadas was wearing while he returned to Bhopal from Itarsi was not one of those which were supplied to him by the caterers.
10. It is strenuously contended by Shri Sen that Jamnadas had no opportunity to commit murder in a first class compartment, as he served the sleeper coach. This argument is without substance. It is true that Conductor K. S. Rawat (P. W. 1) says that he himself got into the sleeper coach when the train started from Bhopal and it was in that coach that he took his lunch and that Jamnadas was there. This merely shows that Jamnadas first boarded the sleeper coach when he commenced his outward journey. But he had ample opportunity to get into the ‘C’ compartment of the first class coach and his presence in the sleeper coach in the beginning is not incompatible with his having committed the murder between Hoshangabad and Itarsi. It is in the deposition of the Guard Chandraprakash Garg (P. W. 5) that on the 12th July, the Pathankot Express 58 Up arrived at Bhopal at 12.14 hours and departed from there at 12.28 hours. The train then stopped for two minutes at Barkheda railway station for want of line clear. Thereafter, it stopped for one minute at Midghat home signal. After this, she stopped for three minutes at Budhni railway station, which is a scheduled halt for this train. Fourthly, she stopped at the outer-signal of Hoshangabad for two minutes for want of signal; and fifthly, she stopped at Hoshangabad station, arriving there at 14.00 hours. The train steamed off Hoshangabad station at 14.08 hours and then had a non-stop run up to Itarsi, where she arrived at 1430 hours. At mile 464, between telegraph posts No. 9 and 10, between Hoshangabad and Itarsi, there was a signal of caution, because some construction work was going on, so that the speed of the train was brought down to 10 miles per hour and she ran for about a furlong at that speed. All these entries were
made by him in the Guard’s Journal (Ex. P. 40). Thus, after leaving Bhopal, the train stopped at live places before she left Hoshangabad. It has also come in the evidence of Conductor Rawat, on whose statement Mr. Sen relies, that he saw Jamna-das standing on the ground about 25 paces beyond the tirst class bogie towards the engine. This first class coach was the third from the engine (per P. W. 5). Station Master, Hoshangabad, Shri-krishnaji (P. W. 15) says that on that day, the 58 Up Pathankot Express was admitted in his station on the “third line”. There was no platform on either side of that line. On the first line (by the side of the platform) was standing 57 Down Pathankot Express, which had arrived there at 13.45 hours. On the second line was a goods train which had arrived earlier, at 13.59 hours, so that it was taken on the third line. On the fourth line were standing 10 or 12 wagons of goods train. That fourth line is by the side of goods shed, where passenger trains were not admitted. This statement is supported by the entries in the train register (Ex. P. 60). This evidence shows that not only was there an opportunity for Jamnadas to enter the ‘C’ compartment before the train left Hoshangabad, but also that the situation of the train afforded him an opportunity for an unnoticed and surreptitious entry into it. That Jamnadas entrained in the sleeper coach while starting from Bhopal is, therefore, of no significance.
11. It is next argued by the learned counsel that a possibility of Jamnadas’s trousers (Article G) having been planted in the ‘C’ compartment cannot be ruled out. We see no force in this conjecture. There is not even a remote suggestion in evidence that anybody was interested in falsely implicating Jamnadas. It must be remembered that the compartment was immediately locked from both sides and within three to four hours of its reaching there, photographs were taken of the inside view of the compartment and the incriminating trousers can be seen in that typical position in those photographs (particularly in Ex. P. 45). The suggestion advanced for the accused is, therefore, far-fetched and unfounded.
12. It is further maintained for Jamnadas that there is yet another possibility; the real assailant might have somehow procured Jamandas’s trousers from the Refreshment Room and might have used them while committing murder so that by this device he would shield himself. Again, this idea is too far-fetched to create a doubt. It is dispelled by the peculiar circumstances that are before us. Mr. Raghuraman was to travel in a second class compartment and it was by sheer chance that he got accommodation in a first class compartment. If would be too much to imagine that some one had foreseen that a first class coupe would be coming vacant in that train and that the passenger would be accommodated in it and, further that he would be lonely in that compartment, so that he equipped himself with Jamnadas’s trousers in advance to save his own skin and lay the blame on him.
13. Mr. Sen endeavoured to construct a point from the existence of blood stains on the footboards of the compartments ‘A’, ‘B’ and ‘E’ of that first class coach. The argument was that some
unknown assailants entered the ‘C’ compartment and after having killed the passenger, they got down from the running train. When we look at the photographs we find that blood was literally flowing in the ‘C’ compartment and a stream had reached one of the doors and its foot-board. The stains of blood on the other foot-boards are, therefore, easily understandable as to have been carried by the wind both ways.
14. It must be held that to disclaim an article found at the scene of occurrence is strongly suggestive of the guilty conscience of the accused and is a strong piece of circumstantial evidence. It is different where the accused owns the article but either explains its presence at the particular place or expresses his utter ignorance as to who took it there and how it was there.
15. Having said this much and before we advert to other circumstances appearing against Jamnadas, it is appropriate to consider his statement before the committing magistrate. There he admitted his presence in the ‘C’ compartment where murder was committed. He, however, stated that three other persons entered that compartment when the train was in motion and they killed the passenger; that they threatened him (Jamnadas) by showing a knife; and that it was at their instance that he left his ”full pant” there. The trial Judge has relied on this statement of the accused. Shri Sen’s objection is that the statement must either be accepted as a whole or must be rejected as a whole, so that if it is relied upon for his presence in the compartment at the relevant time, his statement that the murder was committed by some unknown assailants must also be accepted. Reliance is placed on the case of Hanumant Govind v. State of M. P., 1952 SCR 1091: (AIR 1952 SC 343). There it was held that an admission must be used as a whole or not at all. If the Court proposes to make use of an admission made in a statement recorded under Section 342, Cri. P. C., for the purpose of corroborating thereby some piece of prosecution evidence, the Court must use the whole statement including that portion in which the accused offers an explanation. In our opinion, that case has no appositeness here. In the present case, (1) Jamnadas admitted his presence in the compartment at the time of the murder; (2) he asserted that the offence was committed by some strangers who intruded in the compartment; and (3) he had left his trousers in the compartment as was desired by those assailants. In our opinion, these three facts cannot be said to be a single fact, so that the splitting up is not permissible according to the dictum in Hanumant’s case, 1952 SCR 1091: (AIR 1952 SC 343) (supra). That pronouncement of their Lordships applies when the accused states as to any one matter only and is not attracted when the statement of the accused consists of distinct and separate matters. It is open to the Court to accept the statement of the accused so far as it relates to one fact, while reject another fact which is either proved to be false by ihe prosecution evidence or because of its inherent improbability. In such a case it is permissible to accept an admission as to one matter and rely upon it by way of corroboration of the prosecution evidence
on record, and convict the accused on the strength of such corroboration, even though the Court rejects another portion of the same statement relating to another matter on the ground of its inherent improbability. In Karnan Singh v. The State of Punjab, AIR 1954 SC 204, an accused charged along with others with murder at night time was arrested soon after the crime and was found to have received gun-shot injuries. He admitted his presence at the scene of occurrence but explained injuries as having been received when he went to the rescue of the deceased and was grappling with unknown assailants. His explanation was rejected as being improbable, but the statement as to his presence was accepted. The use of that statement in that manner could not be objected to on the ground that it was not in accordance with the principles laid down in Hanumant’s case, 1952 SCR 1091: (AIR 1952 SC 343) (supra), inasmuch as that part of the statement of the accused, which had been rejected, related to a matter distinct and separate from the other matter which was contained in the first part which was accepted. Following this authority, we are unable to apply the decision in Hanumant’s case, 1952 SCR 1091: (AIR 1952 SC 343) to the statement of Jamnadas.
16. We are clearly of the view that when, in his statement to the committing Court, the accused admits his presence at the time and at the place of the occurrence, but alleges that some one else, and not he, committed the offence it is open to the Court to accept the first part and, at the same time, reject the second part of the statement. Such a course is not contrary to any provision of the law nor does it offend against any rule of prudence. This course is permissible because the two matters (presence, and commission of the crime) are two separate and distinct matters. Such a course will not run counter to the pronouncement of their Lordships in 1952 SCR 1091: (AIR 1952 SC 343).
17. In the Court of Session Jamnadas says that his statement before the committing magistrate was actuated by police tutoring. This allegation is wholly unbelievable. In the first place, as pointed out by the trial Judge, the accused had been in judicial custody for several months before that statement was recorded (on March 27, 1962), and that he was produced before the magistrate not from police custody so that be could not be under the influence of the police. A statement of the accused made before the committing magistrate cannot be rejected as having been made at the instance of the police, unless there is intrinsic evidence in the statement or the accused shows by evidence that he made it under threats and duress of the police. In the case, there is no evidence whatever to indicate that the statement of Jamnadas before the committing magistrate was made under police pressure. Secondly, if the accused was under police influence, his statement would not have been self-exculpatory as it is. We unhesitatingly accept the statement of Jamnadas before the committing magistrate that he was present in the ‘C’ compartment at the time of Mr. Raghuraman’s murder and we accept this admission as lending strong corroboration to the presence of his trousers (Article G.) by the side of the dead body. If we are rejecting as we presently are,
his explanation that three unknown assailants entered the compartment and committed murder, we must conclusively hold that no one else except Jamnadas was responsible for the murder. That result is inescapable.
18. The story of three unknown assailants having intruded, as set up by the accused, is not only inherently improbable but manifestly false. Firstly, it becomes incontestable that murder must have been committed between Hoshangabad and Itarsi because at Hoshangabad Jamnadas was seen standing on the ground by the side of the train and at that time he was wearing trousers (evidence of Conductor Rawat, P. W. 1). Secondly, if the supposed assailants had committed the murder, he would have pulled the chain after they disappeared from the train. The explanation that he left his trousers in the compartment because the assailants wanted him to do so, is fantastic and must be rejected outright. Thirdly, he w6uld have raised an alarm at least as soon as the train reached Itarsi. Far from that, he quietly slipped away from the compartment, either when the train must have slowed down in the yard of that station or at some other place, without informing anybody of the heinous crime-having been committed in his view. Even when he returned to Bhopal, he did not report it either to the police or to the Manager of Refreshment Room. We, therefore, reject the explanatory part of his statement to the committing Magistrate.
19. The foregoing circumstances and our findings are sufficient to uphold the conviction. It is true that in this case there is no ocular evidence of the murder, but these circumstances furnish such a convincing proof as to wholly exclude every possibility except that Jamnadas killed Mr. Raghuraman, Men may lie, circumstances will not. We would recall here the observations of Baron Parke in Towell’s case, (1854) 2 C and K 309.
“Circumstantial evidence is the only evidence which can in cases of this kind lead to discovery. There is no way of investigating then except by the use of circumstantical evidence; but it most frequently happens that great crimes committed in secret leave behind them some traces, or are accompanied by some circumstances which lead to the discovery and punishment of the offender… Direct evidence of persons who saw the fact, if that proof is offered upon the testimony of men whose veracity you have no reason to doubt is the best proof; but on the other hand, it is equally true with regard to circumstantial evidence, that the circumstances may often be so clearly proved, so closely connected with it, or leading to one result in conclusion, that the mind may be as well convinced as if it were proved by eye-witnesses”.
We have not the slightest doubt in our minds that the circumstances relied upon by us have clearly established the guilt of the accused beyond any doubt; that those circumstances do not admit of any inference other than the guilt of Jamnadas, and that the explanations offered by him are inherently false. We shall now state the other circumstances appearing against Jamnadas.
20. It is proved bv Consetio (P. W. 3) the Assistant Manager of the Refreshment Room at Bho-
pal, that Sbaukat returned by 57 Down Pathankot Express, but Jamnadas did not. Shaukat, on his return, deposited in the Refreshment Room, all the Thalis’ which had been entrusted to him as well as to Jamnadas, and also deposited all the payments which both the bearers had received for all the meats issued to them. The Assistant Manager asked Shaukat where Jamnadas was. Shaukat replied that he had proceeded on to llarsi. Jamnadas returned from Itarsi by the G. T. Express, reaching Bhopal at 19.00 hours, that is, he lelt Itarsi at about 17.00 hours. Now it is a circumstance against Jamnadas that he did not return from Hoshangabad when the purpose of his going in the train, namely, to collect the ‘Thalis’ and payments from the passengers had already been achieved. Normally, he should have returned from Hoshangabad, where he could get into the Express train which had come from the opposite direction, as Shaukat did. When this circumstance was put to Jamnadas, he had obviously no explanation to offer but he said that three ‘Thalis’ had remained with him. This explanation is not plausible particularly in view of Consetio’s evidence. It is noteworthy that the accused says that all the payments and other utensils had been made over to Shaukat. It is unnatural that he would then unnecessarily retain with himself three ‘Thalis’. His explanation does not stand the test of reason.
21. Another circumstance against Jamnadas is that there were found stains of human blood on his bush shirt (Article H) which he was wearing when he returned to Bhopal on the fateful day. samnadas admits this. The blood stains were so scanty that perhaps they did not attract his attention. When confronted with them, he admitted that it was blood. In the committing Court his explanation was that when Mr. Raghuraman was killed by some unknown assailants, a few drops of blood fell on his bush shirt. To the trial Judge he had an altogether different story to relate. He stated that while alighting from the Grand Trunk Express at Bhopal, he had a fall and the blood stains which appeared on his bush shirt were caused by his own injury. By this explanation, he also endeavoured to explain the cuts which he had in his right hand yet another incriminating circumstance. Now, it is not easy to believe that he would fall down at the Bhopal station. It was not as if he was trying to entrain when he had a slip. He could not possibly be in a haste to get down. He was getting down at a station where the train stopped for about 10 minutes and, for what it is worth, it is a matter of common experience that bearers of Refreshment Rooms are used to entering and leaving trains in motion. We have already said that his explanation that he had three ‘Thalis’ with him cannot be believed.
22. Jamnadas had cuts on the index finger and the thumb of his right hand. He was examined by Dr. P. A. Singh (P. W. 28) who says that they could be caused with a light cutting and sharp weapon.
23. Jamnadas was admittedly wearing trousers (Article B) when he returned to Bhopal that evening. These trousers are of a make different from those which were supplied to him by his masters as a part of the uniform. These trousers (Article B) had no
dhobi mark and were clearly brand new. Udhemdas (P. W. 7) and Karmumal (P. W. 19), who sell ready made clothes at Itarsi, have identified this garment (Article B) to have been sold from their shop. Then again, on a glass shutter in the ‘C’ compartment were observed chance impressions of fingers. The shutter was seized (Seizure memo Ex. P. 1) and impressions on it were compared with the specimen finger impression of Jamnadas (Ex. P. 7). These impressions were found by the finger print expert Galgate (P. W. 13) to be of Jamnadas. It is not necessary to dwell upon these circumstances in view of the fact that those, with which we have already dealt, overwhelmingly establish the guilt of Jamna-das.
24. When dealing with the appeal against acquittal (Criminal Appeal No. 283 of 1962), we shall consider the allegations, against the accused of his having stolen from Mr. Raghuraman gold chain and wrist watch.
25. Regarding sentence, Mr. Sen appealed to us to reduce the sentence to imprisonment for life on the ground of youth. Jamnadas is said to be 22. While the age of the accused is always given due weight on the question of sentence this case has special features. There is no extenuating circum-stance. The murder was in cold blood. The accused had taken precautions. The victim was an innocent and defenceless young man of 25. The murder was committed in a running train when the passenger was all alone in the compartment–a matter causing general alarm in the travelling public. Eleven incised wounds were caused, indicating that the passenger was butchered to an instantaneous death, so that there may not remain the last trace of life before the train reached Itarsi. Such a heinous crime, which was committed with inhuman brutality, calls for no other than the extreme penalty provided in law. The enormity of the crime and the gravity of the situation In which it was committed outweigh the consideration of the age of the offen- der. We are, therefore, constrained to confirm the death sentence proposed by the Sessions Judge and must dismiss the appeal of Jamnadas.
26. This brings us to the appeal against acquittal. The murder was committed on the 12th July. First information report (Ex. P. 30) was lodged by Conductor Rawat (P. W. 1). The inquest was held and photographs were taken the same evening. The dead body was identified the same night by Rao (P. W. 6). Trousers (Article G), evidently, provided the clue for investigation. On the 13th July, Investigation Officer, D. S. Tiwari (P. W. 30), along with Divisional Inspector D. N. Chakrawarty (P. W. 31) went to Bhopal. During the course of interrogation Jamnadas disclosed that he had handed over a gold chain, a wrist watch and currency notes of Rs. 60/-to Shaukat the previous night (Information memo Ex. P-26). It was only during the course of inter- rogation of Jamnadas that the police came to know of Mr. Raghuraman’s gold chain and wrist watch. Before that, it was only murder which was being investigated into and there was no knowledge of these articles being in possession of Mr. Raghuraman or of the theft. On his information Shaukat was interrrogated.
27. Shaukat stated that on the previous night Jamnadas had given to him for the custody a thin-gold chain and a wrist watch fitted with a stainless steel chain which he (Shaukat) had hidden amidst rags in a truck near the Electric Power House:
“Kal raat tarikh 12-7-61 ko qarib 9 baje mera sathi waiter Jamnadas ne muzhe ek hath ghadi chain lagi hui aur ek sone ki patli chain rakhne ke liye diya tha jo main le jakar bijli ghar ke pas khadi hui ek tuti truck men gudrion men chhipa kar rakh diya hai. Chalkar deta hun.” (Information memo Ex. P. 28).
This information was given by Shaukat in the presence of D. I. Chakrawarty (P. W. 31) and Assistant Station Master Tiwari (P. W. 8). He then led the witnesses to the place where a forsaken truck was standing. There, Shaukat produced from amidst rags a thin gold chain and a wrist watch with a strap of stainless steel and delivered them to the police (seizure memo Ex. P. 29).
28. These two articles were identified to be of Mr. Kaghuraman. Shaukat was, therefore, charged with the offences under Sections 411 and 201 of the Penal Code and Jamnadas was further charged under Section 392 of the Code. The learned trial Judge acquitted both the accused of the respective charges mainly on the grounds that Hie prosecution failed to prove that these articles belonged to the deceased and that there was no evidence to prove that Jamnadas robbed the deceased of anything. The trial Judge did not believe the evidence relating to identification of these articles.
29. In our opinion, it has been established by the prosecution that the gold chain and the wrist watch belonged to Mr. Raghuraman. Mr. Bhargava (P. W. 20) and Mr. Anthony (P. W. 21) have identified the gold chain and the watch as that of Mr. Raghuraman. Both these witnesses were lecturers in the same institute. In the Polytechnic Hostel Mr, Bhargava (P. W. 20) was occupying a xoom adjoining Mr. Raghuraman’s. He says that Mr. Raghuraman left for Bhopal on the 9th July and never returned; Raghuraman was wearing a gold chain and also a wrist watch; the watch had a scratch on the dial at the place where the word “Anti-magnetic” was printed; it was a Roamer watch; the hooks of this watch were rather typical; he (witness) used to tell Raghuraman in a light strain that the watch had become very old so that he should go in for a new one. Mr. Anthony (P. W. 21) says that Mr. Raghuraman used to wear a gold chain round his neck which he could identify. Both these witnesses previously identified both the articles in an identification parade in the presence of Balkrishan Nam-biyar (P. W. 22) and Balraj Mehra (P. W. 23). The gold chain and the watch were mixed with 4 other chains and 4 other wrist watches, 3 of which were Roamer. The witnesses correctly identified the articles. The learned trial Judge has laid a great deal of stress on Mr. Anthony’s answer to a question in cross-examination that he could not be absolutely positive as to the identity of the chain and that it might or might not be the same. We have perused the statement of the witness with care. He is a lecturer in English, a respectable gentleman. There is no reason to doubt his veracity. Tf such a
witness is heckled he would naturally say that the chain which Mr. Raghuraman used to wear was exactly like the one which he identified but it was not possible for him to swear that it was the very same one. His statement is:
“Raghuraman ki chain aisi hi thi jaisi ki yah hai. Ho sakta hai ki yah wahi ho ya nahin. Main kewal itna kah sakta hun ki unki chain ki banawat aisi thi”.
We do not think that this statement in any way nullifies his testimony or affect its credibility. There is no particular comment in the judgment of the Sessions Court regarding the evidence of Mr. Bhargava (P. W. 20). In the course of investigation all the teachers of that Institute were asked whether anybody could identify the belongings of the deceased and only two of them, namely, P. W. 20 and P. W. 21 offered themselves for the purpose, because they were closely acquainted with the deceased and had seen those articles on his person. In our opinion, both of them are truthful witnesses. Neither Shaukat claims these articles as his, nor Jamnadas.
30. Mr. Roy Choudhary objects to the legality of the test identification parade oa the ground that it was not conducted by a Magistrate. It is true that in this case the identification parade was held in the presence of Balkishan Nambiyar (P. W. 22), Manager of the Refreshment Room at Khandwa Railway Station, and Balraj Mehra (P. W. 23), Head Cleark in Patel Cotton Company, Khandwa. While we do not approve of the police arranging an identification parade to be conducted by Panch witnesses instead of by a Magistrate, where one is available, and while such identification may, In the circumstances of a particular case, be field “as infirm and unsafe for reliance, the evidence cannot be struck down as inadmissible unless a police officer is present at the time when witnesses identify. It is laid down by their Lordships in the case of Ramkishan v. State of Bombay, (1955) 1 SCR 903: ((S) AIR 1955 SC 104) that where a test identification parade is arranged by the police and held in the presence of Panch witnesses, the statements involved in the process of such identification would be statements made by the identifying witnesses to the Panch witnesses, so that such statements would be outside the purview of Section 162, Criminal Procedure Code, provided the process of identification was carried out under (he exclusive direction and supervision of the Panch witnesses and the police had completely obliterated themselves from the parade. These tests arc satisfied in the present case. It is satisfactorily proved that at the time when the witnesses identified the two articles, no police officer was present. Having regard to all the circumstances, the statements made by Mr. Bhargava and Mr. Anthony cannot be said to be inadmissible. Although, as we have said, such practice should be discouraged as a matter of prudence, the evidence of identification in the present case cannot be rejected as being contrary to law. After a careful consideration of the statements of both the lecturers, and having in view the fact that both the accused disown these articles, we have no hesitation in holding that the prosecution has successfully proved that they belonged to Mr. Raghuraman.
31. The tact that these articles were taken out ty Shaukat from a deserted truck is also established beyond doubt. There is positive evidence of the Assistant Station Master Tiwari (P. W. 8), and Divisional Inspector Chakrawarty (P. W. 31), to that effect. We have minutely perused their statements and particularly their cross-examination. There is nothing for which the truthfulness of their testimony as to the seizure of these articles can be doubted. Now, ‘hiding’ must be construed as showing possession because, in a case aa the present one, he had both animus and corpus.
32. In Pulukuri Kottaya v. Emperor, 74 Ind App 65: (AIR 1947 PC 67) the Judicial Committee had an occasion to consider the applicability of Section 27 of the Evidence Act to the statement of the accused which was
“I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place”. The Privy Council held that the whole of the statement was admissible with the exception of the first part, “I stabbed Sivayya with a spear”. In Pershadi v. State of U. P., (S) AIR 1957 SC 211, the accused stated that he would give the clothes of the deceased which he had placed in pit in a brick-kiln. Their Lordships held that this was not only admissible to prove the knowledge of the accused as to the concealment of those clothes, but further it was held to be evidence connecting him with the offence.
33. The question what presumption arises from the fact of the accused having been found in possession of stolen articles must be answered after taking into account the entire situation which presents itself. A presumption of fact must be such as would naturally arise. This is quite clear from the language of Section 114 of the Evidence Act. Regard must be had to all the material circumstances before determining what presumption should justifiably be drawn. In this case, the possibility of Mr. Raghuraman having been killed before the train reached Hoshangabad is ruled out by the attending circumstances. We have already reached the positive conclusion that it was Jamnadas who killed Mr. Raghuraman in the running train between Hoshangabad and Itarsi on the 12th July. We have also found that Shaukat had returned from Hoshangabad so that he could not be present when the murder took place. The stolen articles were produced on the 13th July by Shaukat from a place of hiding. On the 12th itself Shaukat had coma to know of the murder having been committed. Since Shaukat could not possibly have committed the theft, the only presumption that arises is that he received and retained them, either knowing or having reason to believe that it was stolen property. Illustration (a) to Section 114 of the Evidence Act is attracted. Furthermore, no other inference is possible than that it was Jamnadas, who committed the theft in respect of these articles. This finding of ours is based on the totality of the circumstantial evidence which is incompatible with any one else committing the offence. It is permissible to draw all logical conclusions from proved facts. To repeat the words of Lord Chief Baron Macdonald in Rex v. Patch and Rex v. Smith (cited in Wills’ Circumstantial Evidence. 6th Edition (at pp. 46-47):
“When circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction to the mind of jury, it may be proof of a more satisfactory sort than that which is direct. When the proof arises from irresistible force of a number of circumstance, which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than, under some circumstances, direct evidence may be.”
Therefore, the order of acquittal of Jamnadaa of the offence under Section 392 of the Penal Code, as also of Shaukat of the offence under Section 411, Indian Penal Code, must be set aside. But, we do not see any case under Section 201, Indian Penal Code, made out against Shaukat. What the section re-quires is that the accused must have had the intention of screening the offender. To put if differently, the intention to screen the offender must be the primary and sole object of the accused. The fact that the concealment was likely to have that effect is not sufficient, for the section speaks of intention as distinct from a mere likelihood. From the circumstances of this case it cannot be safely inferred that Shaukat concealed the stolen articles with the intention to screen Jamnadas.
34. An argument arose during the course of the hearing whether the facts constituted an offence under Section 392 or under Section 404, Indian Penal Code. The basis for the argument was that in order to constitute ‘robbery’ all the elements of theft must exist and one of the ingredients of that offence, as defined in Section 378 of the the Penal Code is that the property stolen must have been in the possession of a “person”. Now, in a case such aa the one at hand it is difficult to hold precisely whether the articles were stolen before the murder or after it. In case the properties were taken by Jamnadas only after Mr. Raghuraman breathed his last and was a dead body, could it be said that the offence committed was theft? This argument at first appeared attractive (and we may also say that in another set of circumstances it may possibly bo given effect to) but on a little reflect ion we find that where murder and robbery are committed in the course of the same transaction by the same person, the offence would fall under Section 392 and not under Section 404. In that context, the word “person” cannot be so narrowly construed as to exclude the dead body of a human being who was killed in the course of the same transaction in which theft was committed. The matter would be different if a thing is stolen from a dead body apart from the transaction in which death occurred. In our opinion, therefore, the offence committed by Jamnadas is punishable under Section 392. Indian Penal Code, and not under Section 404 of the Code.
35. In the absence of eye-witnesses to these crimes, our conclusions are founded on circumstantial evidence. We are aware of the principles laid down by the Supreme Court in a string of decisions beginning from Hanumant’s case. 1952 SCR 1091: (AIR 1952 SC 343) to A. C. Lagu v. State of Bombay, (1960) 2 SCR 460: (AIR 1960 SC 500) as to the standard of proof required for conviction when a case rests entirely upon circumstantial evidence. It must be concluded: (1) that Jamnadas
boarded the ‘C’ compartment at Hoshangabad or immediately after the train started from that station and the fatal assaults were dealt by him between Hoshangabad and Itarsi; and (2) that Jamnadas took away a gold chain and a wrist watch of the deceased and these articles were received and retained by Shaukat either with the knowledge or with reason to believe that they were stolen articles. On the first conclusion the appeal of Jamnadas must be dismissed; on the second conclusion the State appeal must be allowed, though partly. It appears to us that Jamnadas took all precautions he could possibly think of. He had already put off his coat before he entered the ‘C’ compartment. At Hoshangabad station he was seen putting on only his trousers and a bush shirt. He got rid of his trousers at the scene of occurrence itself, so that the garment, which was extensively smeared with blood could not be noticed to connect him with the crime, and he procured a substitute for it. But murder speaks. Little did he realise when he abandoned the trousers (with all his cleverness) that it would be that garment which would speak aloud his guilt with unerring certainty, for it had an unfailing identifying mark which the Providence had prearranged through the hand cf the launderer. It was but Pro-vindential that Conductor K. S. Rawat’s attention was attracted by the attache case and the horrible sight came in his view at Itarsi only. Had the train left Itarsi with the dead passenger unnoticed, perhaps, it would have been too late. Such are the ways of the Providence.
36. The result is that the conviction of Jamnadas under Section 302, Indian Penal Code, is maintained and Criminal Appeal No. 264 of 1962 is dismissed; the Reference (No. 2 of 1962) is accepted and the sentence of death is confirmed. Criminal Appeal No. 283 of 1962 is partly allowed and Jamnadas is further held guilty of the offence under Section 392, Indian Penal Code, and sentenced to 3 years rigorous imprisonment, and Shaukat is held guilty of the offence under Section 411, Indian Penal Code, and is sentenced to one year’s rigorous imprisonment but his acquittal under Section 201, Indian Penal Code, is maintained.
