Rajvi Roop Singh, J.C.
1. The appeal in this case is directed against the judgment of learned Sessions Judge of Manipur dated 24.1.1964 convicting the appellants Malsawn Lushai and Chhawanhuia Lushai of offences Under Section 302/32, 349 I.P.C. and Section 14 of Foreigners Act respectively. They have been sentenced to imprisonment for life Under Section 302/34 I.P.C. 7 years R.I. Under Section 394 and 2 years R.I. Under Section 14 of Foreigners Act. The learned Sessions Judge has directed the sentence to run concurrently. The State of Manipur has filed a Revision petition for enhancement of life imprisonment to sentence of death. This revision petition was entered as Criminal Revision Case No. 5 of 1964 and a notice was issued to the appellants to show cause why their sentence should not be enhanced so as to make it in accordance with the Law. The appeal and revision will in these Circumstances be disposed of together by this judgment.
2. The facts of this case fall within a narrow ambit and may be succinctly stated as follows:
On 17.5.1962 the deceased Bhungjachin of New Churachandpur left for Burma with Gokai Paite the brother of his wife with a sum of Rs. 3800/- which he took as a loan from his brother Haosinyan Paite P.W. 2 for purchasing bristle (pig hair) and Saom Masingha (intestine of bear). Gokai Paite went with the deceased to meet his relatives there. They went to village Jaumura in Burma where their relatives were residing. There they met the two appellants who are the residents of that village and asked them for help in purchasing bristle and Saom Masingha. They stayed there for 15 or 16 days but were not successful in getting these articles. When they were staying there they learnt that communal riot between the tribes of Paite and Mhar was imminent at Churachandpur, therefore they left without purchasing the articles. When they reached near village Lompi, they found both the appellants sitting near the road. From there onwards all the 4 persons left for Chakpikarong. In the evening of 5th June, 1962 they reached Chakpikarong. After taking their meals they deft Chakpikarong. When they resumed the journey it is said accused Chhawanhuia told the party that if any one has money or smuggled goods with him he should walk behind others in order to avoid harassment from the Police. The deceased told them that he has got money with him.
Thereafter they reached village Bijang at 9 p.m. From there onwards they had to cross the river Imphal which is 40 to 50 yards wide. While crossing the river Gokai was ahead of all as he had torch with him by which he was showing the way to the other members of the party in that dark night. He was followed by accused Malsawn, It is said that accused Chhawanhuia was walking behind the deceased, When Gokai had reached the middle of the river he heard the report of a gun fire close behind him. He being afraid ran forward and after crossing the river went in the nearby jungle on the opposite side of the bank of the river. He remained there for the night and in the morning he left for his village. He reached village Sompek at about 8 or 9 a.m. and took rest at the house of one Paite. In the house there was no male member, therefore he narrated the incident of the last night to the women of that house. The appellants also came there. He inquired them about Bhungjachih and they replied in the negative. Thereupon he requested them to join him in the search for Bhungjachin but they did not agree to join him in the search of the deceased. Thereafter Gokai alone went to the river side and found the dead body of Bhungjachin lying at the house of Angou Singh of village Bijang with gun shot injury at the hack of his head. It appears that on 6.6.1962 Sunghril Anal of village Kolen saw the dead body lying on a Chaw land of the river Imphal. Thereupon he informed Champhring Anal the Khullakpa of Kolan Tampak.
The Khullakpa of the village made a report to the O/C Sugnu out post who sent 2 constables to guard the dead body. They instead of guarding the dead body there brought it to the house of Angou Singh. Gokai Paite P.W. 3 after seeing the dead body sent the information to his brother Thangkhum P.W. 1 at Churachandpur, therefore, he came there. Gokai P.W. 3 told him all about the occurrence. He thereupon went back to Churachandpur and lodged the report about the occurrence at the P.S. Churachandpur 7.6.1962 at 4.30 p.m. Shri Shyama Singh, S.I.P.W. 14 recorded the statement of the informant and arrested the accused Chhawanhuia Lushai at about 5 p.m. on the same day. Thereafter he went to the place of occurrence and asked the A.S.I. to arrest the other accused Malsawn Lushai. Shyama Singh, S.I. reached the place of occurrence in the morning of 8.6.1962 and prepared the inquest report Ext. A/12. He prepared the site plan and thereafter recorded the statements of some of the witnesses. After that he got sealed the dead body and sent it for post mortem examination along with constable C.W. 1 Gopal Singh. The constable handed over the dead body to P.W. 11 Dr. Gopal Singh. Dr. Gopal Singh, performed post mortem examination on the dead body of Bhungjachin on 9.6.1962 at 8.30 A.M. He found the following ante-mortem injury on the dead body.
One round lacerated wound 1' in diameter and 4' in depth 1' away towards the left from the occipital protuberant and ' below the same.
On dissection he found one compound communated fracture of the occipital bone and the rupture of brain membrane. The brain itself was decomposed.
According to him the above injury was caused by a gun shot. He also took out two pellets Exts. M-3 and M-4 from the head of the dead body. According to the Doctor the cause of death was haemorrhage and shock as a result of above injury. He prepared the post-mortem report Ext. A-8. Thereafter on the night intervening 7/8 June, 1962 the A.S.I. arrested the other accused. After that on 11.6.1962 the investigating officer P.W. 14 Shyama Singh went to village Rengkai and recovered Rs. 1520/-from Mangjaki Hmarni P.W. 6 wife of Ruma Hmar at the instance of accused Malsawn in the presence of Ruma Hmar P.W. 10 and Vungsiam Paite P.W. 7 and prepared its recovery memo Ext. A/6. Thereafter on 11.6.1962 he recovered Rs. 2190 from Khan-grami Lushaini P.W. 5 of village Saikot in the presence of Vungsiam Paite P.W. 7 at the instance of appellant Chhawanhuia and prepared its recovery memo Ext. A/5. Again on 13.6.1962 he recovered the gun Ext. M/2 at a distance of one furlong from the place of occurrence lying at the foot of a plantain tree in the field of Bolhen of village Kolen Tampak at the instance of Chhawanhuia in the presence of P.W. 4 Champreng Anal and P.W. 8 Ngam hao Kuki and prepared its recovery memo Ext. A/4. Thereafter on the completion of the investigation he submitted the charge-sheet against the appellants in the Court of Addl. District Magistrate, Imphal. The learned Magistrate by his order dated 22.5.1963 committed the appellants to the Court of Sessions Judge to stand their trial under Sections 302, 394, I.P.C. and 14 of the Foreigners Act.
3. The learned Sessions Judge found the charges defective, therefore, he reframed fresh charges.
4. Both the appellants pleaded a complete denial of all the allegations of the prosecution. As regards the recovery of the sum of Rs. 3,710 at their instance they stated that the amount belonged to them as they brought it from Burma for purchasing land at Churachandpur with an intention to settle there. As regards the recovery of the gun Ext. M/2 appellant Chhawanhuia stated that neither it belonged to him nor it was recovered at his instance. They lead no evidence in their defence.
5. The prosecution in order to substantiate the offences under Sections 302, 394, 411 I.P.C. and under Section 14 of the Foreigners Act examined 15 witnesses. The learned Sessions Judge after consideration of the entire evidence and all aspects of the case convicted the appellants as noted above. The appellants being aggrieved with this judgment of the learned Sessions Judge have filed this appeal. The Government of Manipur has filed the Revision petition as stated above.
6. In this case the first point for consideration is whether the deceased Bhungjachin died on 5.6.1962 at 9.00 p.m. due to injury caused by gun shot. The death of Bhungjachin as a result of the injury caused by a gun shot on the night of 5.6.1962 is well established and is in fact not disputed. The learned Counsel for the appellants too at the very outset frankly conceded that in the face of preponderate, direct and circumstantial evidence he does not contest the factum of the death of Bhungjachin at Imphal River near Bijang village. I too feel that he has rightly conceded in view of the overwhelming direct and circumstantial evidence on the record.
7. The next and main question for decision is how Bhungjachin was killed and by whom. In this case the evidence against the appellants is purely circumstantial and it is on the strength of the following circumstances that the learned Sessions Judge came to the conclusion that the appellants are guilty:
(1) The recovery of Rs. 3,710 at the instance of the appellants,
(2) The recovery of gun Ext. M/2 at the instance of appellant Chhawnhuia Lushai,
(3) The conduct of the appellants before and after the incident.
8. The learned Counsel for the appellants vehemently urged that the circumstantial evidence relied upon by the learned Sessions Judge is not enough to bring home the offence to the appellants beyond reasonable doubt. He pointed out that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabilities the act must have been done by the accused. The principle that the inculpatory fact must be inconsistent with the innocence of the accused and incapable of explanation on any other hypothesis than that of guilt does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable. In support of his argument he placed reliance on the case Narayani Amma Kamala Devi v. State of Kerala : AIR1961Ker250 . In this case P.T. Raman Nayar J. observed as follows:
In a case of circumstantial evidence the chain must be so complete to rule out any reasonable likelihood of innocence, if there be a reasonable hypothesis consistent with the innocence of the accused then the accused is entitled to an acquittal even if his own explanation be something else; and it is only when there is apparently no hypothesis reasonably consistent with his innocence that the question of the acceptability or otherwise of the particular explanation he might give arises.
Whether the circumstances proved are sufficient to establish guilt will have to be decided in each case, and, apart from a reiteration of the accepted principle that the circumstances must be consistent only with the guilt of the accused and must be inconsistent with any reasonable hypothesis consistent with innocence, little assistance is to be derived from decided cases.
A case of circumstantial evidence where the circumstances do not forge a complete chain is a case of no evidence at all. Whether the links forged be few or many, so long as there is at least one link missing to complete the chain, the incomplete chain is of as little avail to fasten guilt as if there were no links at all.
9. The Government Advocate on the other hand did not dispute the principle. As regards this principle there is no dispute. It is well-settled principle of criminal jurisprudence that circumstantial evidence must be consistent and consistent only with the guilt of the accused and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. It has been repeatedly laid down by the Supreme Court of India and by the other High Courts in many cases that a conviction can safely be based on circumstantial evidence, provided the several circumstances relied upon by the prosecution are established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accused's guilt. This principle is enunciated in the decision of the Supreme Court in Hanumant v. State of M.P. : 1953CriLJ129 , Kedar Nath v. State of West Bengal : 1953CriLJ1621 , Kutuhal Yade v. State of Bihar : AIR1954SC720 , and in the decisions of the Mysore High Court in Chowda v. Govt. of Mysore (1930) 8 Mys LJ 379 (?), Papiah v. Govt. of Mysore (1944) 49 Mys HCR 444 and Chikka Byre Gowda v. State of Mysore AIR 1955 Mys 119.
10. I shall now examine the circumstantial evidence in the light of the above principle.
The most important piece of evidence relied on by the prosecution against the appellants is the recovery of Rs. 2,190 at the instance of appellant Chhawnhuia and Rs. 1,520 at the instance of Malsawn, In order to prove the recovery of Rs. 2,190 at the instance of appellant Chhawnhuia the prosecution examined P.W. 14 Shyama Singh. P.W. 5 Khangrami Lushaini and P.W. 1 Vungsiam Paite. Their testimony is that the appellant kept this amount with P.W. 5 Khangrami Lushaini and thereafter on 11.6.62 he got it recovered from her possession. As regards the recovery of Rs. 1,520 the prosecution examined P.W. 14, Shyama Singh, P.W. 6 Mangjaki Mharni, P.W. 7 Vungsiam Paite and P.W. 10 Ruma Hmar. Their testimony is that the appellant left this amount with P. W. 6 and thereafter he got it recovered on 11.12.1962 in their presence.
The Government Advocate relying on this evidence strongly urged that this amount was recovered at the instance of the appellants soon after the murder of Bhungjachin and the appellants to have admitted the recovery of this amount at their instance, therefore, it should be inferred that the appellants are the persons who committed the murder of Bhungjachin.
11. The counsel for the appellants in order to controvert this contention of Government Advocate contended that the mere recovery of money will not be sufficient to prove the offence of murder or robbery against the appellants. He pointed out that it was the duty of the prosecution to prove that the deceased had money with him and the recovered amount is the same amount. But in this case the prosecution miserably failed to prove this fact. He further urged that the appellants have claimed this money as their own, therefore, in these circumstances by mere recovery of money at their instance it should not be inferred that they committed this murder. In support of his argument he placed reliance on the case Vali Esa Mahmed`State : AIR1963Guj135 . In this case Raju J. while relying on (S) : AIR1956SC54 observed that where the only, evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the property was taken from the deceased by the accused at the time of the murder, it is not safe to draw the inference that the person in possession of the property was the murderer.
12. In the light of the above arguments it has to be seen whether the deceased had any money with him and the recovered money is the same money.
In this case the prosecution in order to prove that the deceased carried with him Rs. 3,800 for purchasing bristle and Saom Masingha examined P.W. 2 Haosiyam Paite and P.W. 3 Gokai Paite. They have deposed that the deceased carried this amount with him. The learned Sessions Judge has placed reliance on their statements without critically examining them. (After examining the evidence he Lordship went on to hold). In the presence of these facts it is clear that the prosecution has not proved conclusively that the deceased borrowed Rs. 3,800 from his brother and he carried it for purchasing bristle etc. and the recovered amount is the same amount which was stolen.
13. The Government Advocate contended that in view of the recovery of the amount at the instance of appellants and absence of any explanation from their side it should be taken that the appellants were the persons who murdered him. This contention is devoid of force. The appellants in their statements have stated that this amount belonged to them. They have further stated that they brought this amount to purchase land at Churachandpur to settle there. In view of this explanation how can it be said that they failed to explain the possession of this amount. The law on this point is well-settled that where murder and robbery are proved to have been integral parts of a certain transaction, the presumption that can be drawn from the possession of the property may, consistent with all the facts proved in the case, be that the person to whom such possession was traced not only committed the theft thereof but also committed the murder which forms part of the same transaction as theft. It must of course be established that, before any such presumption can be drawn the primary thing to be proved is that the accused had no satisfactory explanation to offer for his possession of property. Further, where the accused offers an explanation the burden of proving the truth of that explanation affirmatively does not rest on the accused. It still rests on the prosecution to prove that the explanation is not true.
In this case the prosecution failed to prove that the explanation given by the appellant was false, therefore, it shall be presumed that what has been stated by appellants is true.
14. The learned Government Advocate contended that if the appellants had taken this amount for purchasing land at Churachandpur, in that case why they left the amount behind in villages Rankai and Saikot, which were at a great distance from Churachandpur. By this it should be taken that the explanation given by them is not true.
This contention of the learned Government Advocate did not convince me. In the hill area the people do not carry money with them. They generally leave the money behind in the jungles in hollow bamboo pieces or with ladies who are their relatives or known to them. The money is generally left with ladies as the business is run by the ladies. In this case, the appellants left this amount with their relations for safe custody, therefore it cannot be presumed that this amount did not belong to the appellants. In view of the explanation given by the appellants it was for the prosecution to prove that this was the amount of the deceased. But the prosecution failed to prove this fact, therefore, the recovery of this amount at the instance of appellants being innocuous could not be enough to fasten upon the appellants the responsibility for the crime of murder or robbery. In this ease this fact is also noteworthy that P.W. 6 Manjaki Hmarni has stated that the appellant Malsawn left with her two bundles, one containing notes and the other gold. The Police look the bundle which contained notes and allowed the bundle of gold to remain with her. It is not the case of prosecution that the deceased carried gold with him. The handing of gold and currency notes by the appellant to the witness leads to the inference that he was the owner of these articles. Churachandpur is on Burma Border and on this side the smuggling of gold, Indian currency notes as well as other articles made in Burma is very common. The Nagas instead of bringing these articles with them leave them in the jungles or with their relatives residing in the hamlets. In these circumstances no adverse inference against the appellants can be drawn on account of their leaving these articles with their relatives.
15. The next important piece of evidence against the appellant Chhawnhuia is the recovery of the gun Ext. M/2 at his instance. In order to prove the recovery of the gun M/2 at the instance of the appellant Chhawnhuia, the prosecution examined P.W. 14 Shyama Singh, S.I., P.W. 4 Champhreng Anal and P.W. 8 Ngam Kuki. They have deposed that the gun was recovered at the instance of the accused from the jungle.
The Government Advocate, while placing reliance on the recovery of this gun at the instance of appellant urged that in view of the recovery of the gun at the instance of the appellant it should be presumed that it was he who fired the gun due to which Bhungjachin died.
The counsel for the appellants on the other hand contended that there is no evidence on the record to show that this gun belonged to the appellant and it was with him at the time of incident. He further averred that this gun is not in serviceable condition, therefore, no shot can be fired from it. In view of these facts the appellant should not be held responsible for the murder of the deceased Bhungjachin on account of the recovery of the gun at his instance.
After giving my most anxious consideration to the evidence of this point, I find that recovery of the gun is also innocuous. It is not enough to fasten upon the appellant the responsibility for the murder of the deceased.
In this case there is absolutely no evidence on the record to show that the appellants carried any gun. It is said that they carried a long bag and the gun was inside it. But none has seen this gun inside the bag. Besides, none has seen the appellant Chhawnhuia Lushai firing this gun. There is no evidence on the record to show that the 2 pellets were fired from this gun. The firearm Expert P.W. 15 R.N. Mukherjee who examined this gun has deposed that the 2 pellets could have been fired from this gun or any other gun as well. He is not definite that these pellets were fired from this gun. Besides, he has deposed that due to faulty trigger pressure the weapon was not in proper working condition. He has further deposed that he cannot say about the time of firing. I too saw this gun. It is a country made gun and it is not at all in a working condition. In view of these facts, it is highly risky to infer that these pellets were fired from this gun. The appellant has denied the recovery of this gun at his instance. The gun was recovered from the jungle where everybody had an access. In view of these facts, it is highly dangerous to infer that the gun belonged to the appellant and he concealed it there after firing. The recovery of the gun is not enough to connect the appellant with the crime. Besides, this recovery may at best raise some suspicion against the appellant Chhawnhuia, but suspicion however grave cannot form the basis of conviction. The conviction of the appellants under Section 302 I.P.C. and robbery could not be sustained on the evidence as it stands on the record. It is fundamental principle of Criminal Jurisprudence as pointed out above that circumstantial evidence should point inevitably to the conclusion that it was the accused and accused only who was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. But this is not so in this case.
16. Here, I may also point out that both the appellants have been convicted under Section 302/34 I.P.C. There is no evidence as to who fired the gun, but the prosecution alleges that it was Chhawnhuia who fired the gun. There is no evidence on the record to show that what part the appellant Malsawn played in committing this murder. The only evidence against him is the recovery of Rs. 1,520 at his instance. This recovery is innocuous as pointed out above. Moreover, this recovery is not enough to connect this appellant with the crime. Besides, to fasten the liability against this appellant it was necessary for the prosecution to prove common intention. The foundation of constructive liability under Section 34 is the common intention animating the accused to the doing of the criminal act, and the doing of such act in furtherance of such intention. Common intention is an intention to commit a crime actually committed and every one of the accused should have participated in that intention. A similar intention would not be enough to bring the case within the meaning of the section. Suppose several persons each acting independently of the others, intend to commit a crime and all of them chose the same moment and commit the crime which each of them intended separately, there would be no common intention in such a case. Each of them would be liable for his act, but not vicariously for the act of another or others. Common intention within the meaning of the section implied a pre-arranged plan and to convict the accused of an offence, it should be proved that the criminal act was done in concert pursuant to the prearranged plan. The inference of common intention should never be reached unless it was a necessary inference from the circumstances of the case, although it might be difficult if not possible to procure direct evidence to prove the intention of an individual.
17. In this case the prosecution miserably failed to prove the common intention of the appellants to murder Bhungjachin deceased, therefore, how can Malsawn be held guilty of the offence under Section 302/84 I.P.C.
18. The other circumstantial evidence on which the prosecution has placed reliance is the conduct of the appellants, before and after the occurrence. As regards the conduct of the appellants before the incidence, it is said that they told Gokai and the deceased that if anyone had money or smuggled goods he should walk behind to avoid harassment from the Police. The use of such words by the appellants is not enough to infer that they planned to murder them. Moreover, there is a material contradiction on this point in the statement of Gokai. He is the only witness on this point. He in his examination-in-chief stated that it was Malsawn who told about money and smuggled goods, but in cross-examination he stated that appellant Chhawnhuia had spoken about it. By this it appears that this is a made up story. From the record it is clear that the appellants were not knowing that they were carrying the money, therefore, they had no reason to speak such words to them.
19. The learned Government Advocate next averred that after the occurrence when Gokai asked them to accompany him to search the deceased they refused to go with him, by this it should be inferred that they were the persons who murdered Bhungjachin. On this point, the only evidence is that of Gokai. But his evidence is not enough to prove this fact. Moreover, the mere refusal on their part to accompany him in search of the deceased cannot be said to be strong circumstance to infer that they had the hand in murdering Bhungjachin. The conduct of Gokai was more suspicious than that of the appellants. It is said that he was carrying a torch with him by which he was showing the route to the other members of the party. When the gun was fired why did he not flash the light on that side to know the real culprits. Besides, what led him not to go to the village to inform about the incident which was only 3 furlongs away from there. Moreover, if the appellants had come to rob them in that case they would have run away back to Burma after committing the murder with the money and the incriminating articles as there was enough time for them to escape. The presence of the appellants in India after the occurrence gives rise to an inference in their favour. This circumstantial evidence is not enough to convict the appellants with this crime.
20. This is all the evidence that has been led by the prosecution to connect the appellants with the crime. In my opinion, the evidence is entirely insufficient to bring home the guilt to the appellants. The evidence may raise some sort of suspicions but suspicion however grave cannot form the basis of murder. I am, therefore, constrained to hold that the prosecution has miserably failed to prove the offences of murder and robbery against the appellants. In view of this finding the revision filed by the State of Manipur automatically fails.
21. As regards the offence under Section 14 the appellants have admitted that they are foreign nationals and they entered India without any permit or passport and were arrested at Churachandpur, therefore, the charge under Section 14 of Foreigners Act is fully proved against them. The sentence of 2 years R.I. is also not excessive.
22. In the result, I therefore, reject the Revision Petition filed by the State of Manipur and partly accept the appeal of the petitioners and set aside their conviction and sentence under Sections 302/34 and 394 I.P.C. I uphold their conviction and sentence passed under Sections 14 of the Foreigners' Act by the Sessions Judge.