1. The appellant, Shivabhai, has been convicted by the Sessions Judge of Kaira of murder under Section 302, Indian Penal Code, and abduction in order to murder under Section 364, Indian Penal Code. He has been sentenced for the first offence to transportation for life, and for the second to seven years' rigorous imprisonment, the two sentences to run concurrently. The Judge concurred with three out of the four assessors in convicting him. The alleged murder was of one Naran, a Patidar, living in Mahommadpura, a village about one mile from the railway station of Boriavi. He lived with his mother, Bai Lala, his wife, and two little sons, and was about twenty-five years old. The prosecution case is that, early on the morning of October 10 last, the accused Shivabhai, who is also a Patidar, living in the same village, went to Naran's house and inquired whether he was ready to go. Naran said that he would shortly come, and after taking his meal went to Boriavi station. The accused was already there, and both are alleged to have travelled by the same train, which left Boriavi at about 8 A, M,, to Thasra station, and from there to have gone to Dabhali, a neighbouring village, where the appellant and his brothers cultivated certain lands. The appellant, with the aid of two of his brothers, is said to have murdered Naran, on October 10, 1925, at a place about four fields off their lands, just outside the limits of Dabhali. At that spot some human remains were found, which are testified to have been those of an adult male, aged between twenty-five and forty, and which the prosecution assert were those of Naran. There were marks of violence on some of the bones, and human blood was also found on a bead-necklace (part of the remains) and on the ground. Naran never returned to his village; his disappearance was noti6ed in the Police Gazette; and various other steps taken to trace him, but (apart from the finding of these remains) unsuccessfully. His mother, Bai Lala, had become suspicious owing to Naran's non-return, especially upon receipt of a post card on October 12, which she showed to various people in the village, who pronounced it not to be in Naran's handwriting. On October 20, 1925, she made a petition to the Sub-Inspector, who happened to be there on circuit, complaining about Naran's disappearance, and mentioned her suspicion against the accused Shivabhai. Inquiries were forthwith made, with the eventual result that the appellant and one of his brothers by name Bhulabhai were committed for trial on charges under Sections 302 and 364, Indian Penal Code. Another brother by name Nagar, who was also implicated in the police inquiry, is said to have absconded. Bhulabhai (who was accused No. 1) has been acquitted, while the appellant (who was accused No. 2) Was convicted and sentenced, as already stated.
2. The main contentions of the appellant's counsel are, firstly, that it is not established that Naran was murdered, and that there is no sufficient identification of the remains found near Dabhali so as to prove them to be Naran's. Secondly, it is contended that the evidence as to accused No. 2 leaving Mohammadpura with Naran and both going together to Dabhali is false. Thirdly, it is contended that, in any case, the evidence adduced is insufficient to establish the offences alleged against the appellant, and that there is a reasonable doubt, the benefit of which should be given to him.
3. The question which, I think, should first be determined is, whether or not the evidence as to Naran being in the company of accused No. 2 on October 10, should be accepted, for that question also affects the issue as to identity of the remains. After discussing the evidence his lordship proceeded :
That being so, there can be no reasonable doubt that Naran was murdered. The evidence as to injuries on the nape of the neck, front of the throat, and the right side of the back of the skull, the presence of blood on the button, kanthi, and ground, and the fact of the remains being on this out-of-the-way spot, leave no reasonable doubt that Naran's death was due to violence.
4. In addition, we have the discovery of pieces of burnt cloth in a neighbouring field. If these pieces of cloth were part of the clothes that Naran was wearing at the time of his death, then it is a piece of evidence pointing to an attempt to destroy property that might lead to the identification of the remains ; and this supports the theory of a crime having been committed. The fact of their being found also in a field where the appellant admits that he and his brother used to reside occasionally and kept a fire-place for cooking and other purposes, makes it a very important piece of evidence against him. If the appellant or any of his brothers committed this murder, it is not improbable that the clothes would be destroyed not far off from where the murder was committed, and this field would be the nearest convenient place where they could be burnt. Is there, then, any evidence to support a finding that these pieces of cloth were in fact part of Naran's clothes, removed after his death Though it has not been brought out clearly in the Sessions Court judgment, or in the argument before us, I think there is such evidence. In my opinion, it is clearly proved by the evidence of the Sub-Inspector (Ext. 49), the Head Constable (Ext. 56), and the Punch witness (Ext. 45), read with the Punchnama, Ext. 47, that these burnt pieces of cloth were discovered by the police in consequence of information given by Bhulabhai, accused No. 1, that he had burnt the clothes of Naran and would show the police where he had done so. Thereupon, he took them to this field, and pointed out the ashes, in which the pieces of cloth were found. This was on the morning of November 1, after the discovery of the remains. Accused No, 1 was then in the custody of the police, within the meaning of Sections 26 and 27 of the Indian Evidence Act, under the ruling in Queen-Empress v. Kamalia I.L.R. (1886) 10 Bom. 595 as held by the Sessions Judge. Consequently, this information that he had burnt Naran's clothes and would show them where he had done so, is admissible in evidence under Section 27, just as in Queen-Empress v. Nana I.L.R. (1889) 14 Bom. 260 it was held that an accused's statement that he had buried certain property in the fields was held admissible. This information was, no doubt, not a confession oi: complete guilt, so far as the charge of murder was concerned, but it was a direct admission of constructive guilt, for his burning the clothes primarily implied that he had taken part in this murder; and, under Section 237, Criminal Procedure Code, he could have been convicted under Section 201, Indian Penal Code, although not charged with this offence of Begu v. The King-Emperor 27 Bom. L.R. 707. Accordingly, under the ruling in Queen-Empress v. Nana and similar rulings such as Queen-Empress v. Javecha-ram I.L.R. (1894) Bom. 363 and Emperor v. Haji Sher Mahomed I.L.R. (1921) 46 Bom. 961 it amounts to a confession within the meaning of Section 27. In my opinion it can (as stated in Ameer Ali and Woodroffe's Law of Evidence, 8th Edn p. 295) also be treated as a confession within the meaning of Section 30, Indian Evidence Act, and though it does not mention the appellant (accused No. 2) and says that accused No. 1 alone burnt the clothes, still it certainly 'affects' accused No. 2 from the very fact that the field where the clothes were burnt was that of accused No. 2, as well as accused No. 1, that they admittedly used to reside there occasionally, and that accused No. 2 was seen in this vicinity with Naran on October 10. It may be added that, according to Fulabhai, whose evidence I accept, he had told Fula that he was going to his mal land, i.e. , this very field, and the neighbouring ones. The word 'affect' is a very wide one, and though, no doubb, the ordinary case contemplated by Section 30 is where the confessing accused directly implicates another accused, as well as himself, I can see no sufficient reason for holding that the section is limited to such a case, and does not also cover a case where the confession indirectly affects a co-accused. In Empress v. Rama Birapa I.L.R. (1878) 3 Bom 12 West J. distinctly contemplates the case of a confession of the limited kind allowed by Section 27 being taken into consideration against a co-accused under Section 30, as is pointed out in Ameer Ali's Law of Evidence at p. 303, That the confession in question 'affected' accused No. 2 was recognised by that accused, who, in para. 7 of his written statement, Ex. 68, explains the pieces of cloth as being merely rags used for lighting a fire. He adds : 'The pieces of cloth may therefore have been found from the place but nothing has been proved thereby'.
5. I hold that accused No, 1's statement is admissible in evidence against accused No. 2 under Section 30, and that it can be taken into consideration against him. I have not the slightest hesitation in further holding that the explanation for the existence of these pieces of burnt cloth afforded by accused No. 1's statement is far more probable than the explanation that they were casual rags used for lighting a fire. To burn rags is not a good or usual mode of lighting a fire : and it is difficult to believe that accused No. 1 would have led the police to the field and shown the ashes, if accused No. 2's explanation were the real truth.
6. Even if it be held that accused No. 1 's confession about burning Naran's clothes cannot be treated as admissible under Section 30, the evidence of accused No. 1'a conduct in pointing out the ashes after the remains had been found is relevant under Section 8, Indian Evidence Act, and the natural inference would be that he did this in connection with the finding of the remains, which he had pointed out shortly before. After further discussion of the evidence his lordship continued :
In addition to this the evidence, in my opinion, establishes a motive, and shows that he had a grudge against Naran as stated in paragraph 12 of the Sessions Judge's judgment. The evidence of the witnesses who depose to the quarrel seems to me quite reliable. This evidence shows that the appellant and his brothers were incensed at Naran leasing a field which they had had for two previous years, and that the appellant threatened Naran that he would not live to oat its produce. No doubt, the quarrel took place in Jeth, that is to say, five months before this occurrence. But, there is considerable force in the Sessions Judge's remarks ' that people in this District are very particular about the lands they hold and resent any interference on the part of others with their holdings'. The brothers had, no doubt, separated, but they had a good many common interests and were on good terms, so this does not render the evidence improbable, I agree, therefore, with the Sessions Judge that a motive is shown for murder of Naran by the appellant. In order to effect the murder, there was nothing improbable in the appellant's waiting until he had a suitable opportunity of committing it with as little risk as possible, and seeking, meanwhile, to get the confidence of Naran by proposing to carry out a profitable business transaction with him. The evidence certainly points to the appellant having deliberately decoyed Naran from Mahomedpura to the neighbourhood of Dabhali on a pretest of some tobacco business.
7. In connection with this latter point, the testimony of Fula as to his conversation with the deceased in the train requires consideration. He deposes that, while he was sitting with Naran between Boriavi and Anand, he said to Naran that it could not be true that he was going to Bhalej, but he must be going to some other place. Naran replied that accused No. 2 had purchased some tobacco at Thasra, and, therefore, he (Naran) was going to Thasra. Fula then asked why accused No. 2 was not sitting in the same compartment as Naran. Naran replied that, as accused No. 2 had to bring the tobacco without the knowledge of his partners, he and the appellant were purposely sitting separately in the train. This evidence, if admissible and believed, supports the story of accused No. 2 taking Naran away on the pretext of some tobacco business, for it indicates a desire for secrecy on the part of accused No. 2. At the time when this conversation was referred to in the examination of the witness Fula in the Magistrate's Court, an objection was raised that any statements by Naran were inadmissible. The Magistrate overruled this, holding that the transaction, which resulted in the death of the deceased Naran, began from the time when he left his house accompanied by the appellant, and that accordingly the statements were admissible under Section 32, Clause (1), of the Indian Evidence Act, Mr. Thakor for the appellant opposed this view, but did not discuss it in detail. I have, however, referred to the ruling in Autar Singh v. The Crown I.L.R. (1923) Lah. 451 which was relied upon by Mr. Chandulal. No doubt, if the view taken by the Lahore Court is accepted, these statements are entirely inadmissible. It is there laid down (p. 458) that this clause of Section 32 covers only 'dying declarations, that is to say statements made by a dying person as to the injuries which have brought him or her to that condition, or the circumstances under which those injuries came to be inflicted.' It is further said (p 458) that: ' The statement must be made by the person when he is dying from the result of the injury which caused his death, otherwise it is obviously not a dying declaration. ' With all respect, this seems to me to be putting an undue restriction on the words in this Clause (1) 'as to any of the circumstances of the transaction which resulted in his death.' If, as in English law, the clause is confined to the case of statements made as to the cause of a person's death, then I quite agree that the above would be a proper interpretation. But the Indian legislature deliberately departed in various particulars from the corresponding English law on the subject, and I do not think that, because the clause is ordinarily intended to cover what can strictly be called a ' dying declaration, ' the clause is not meant to cover any other statements, in spite of the wide words I have quoted. Take, for instance, the case of a girl who is abducted by deceit and then raped. She is getting into a motor car, and tells a passing friend why she is going in it. According to the view of the Lahore Court this statement would be inadmissible under Section 32, because it was made by the girl, not as a dying person and before she had actually received any injuries, But it is one made by a person ' as to the circumstances of the transaction which resulted in her death,' on the supposition that after being taken away in the car she is raped and dies in consequence of her injuries. It seems to me that a Court of law is not justified in ignoring the language which the legis-lature has actually used to cover such a case. The Judicial Commissioner's Court at Nagpur has in fact held that statements can be admitted, though they are not made before the deceased is injured, In Chunilal v. King-Emp. A.I.R (1914) Nag. 115. the deceased had reported to the police an assault on him by the accused, who belonged to the opposite faction, and next morning in the course of altercation the accused stabbed the deceased, yet it was held that the report made by the deceased to the police was admissible under Section 32, Clause (1), Similarly, in Emperor v. Faiz (1916) CrI. L.J. 438 statements as to certain ill-treatment conducing to suicide, before the suicide was committed, were held to be admissible. I, therefore, hold that the conversation between Fula and Naran is relevant and admissible in evidence. It was a conversation, in the course of which Nara.n made statements as to his going with accused No. 2 but travelling in the train separately from him, i.e., as to the circumstances of the transaction by which, according to the proseoution, the appellant decoyed him from his house to a place near Dabhali where he was murdered, In accordance with that view there was a charge against the appellant under Section 364, Indian Penal Code, I think that this evidence is true and reliable, Fulabhai is not likely to have invented it, for, if he was a false witness against accused No, 2, it would have been much easier for him to have said that he saw accused No. 2 get into the train and travel with Naran.
8. We have, then, the fact that appellant is proved to have taken Naran to Dabhali on pretext of some tobacco business, under precautions showing a desire for secrecy on the part of the appellant. The post card intended to allay Bai Lala's anxiety might have been posted by him or at his instance. He was seen in company with Naran, not far from the scene of the crime, at noon on October 10, and Naran is murdered near his fields. Naran's clothes are burnt by his brother at a place used by both of them for occasional residence. He falsely denies having been with Naran at all. He had threatened Naran and had a motive for ill-feeling towards him. All this throws upon him an onus of accounting for his movements on October 10 and 11, and offering some explanation as to why he went with Naran and what happened to Naran afterwards. That onus is not attempted to be satisfied by the appellant, who has adduced no evidence whatever. No doubt, he was entitled to take the course that he did, but he took a grave risk in following it. After discussing further evidence his lordship concluded:
There is, however, no direct testimony as to how the murder actually took place, and, before the appellant can be convicted of murder, the circumstantial evidence must be incompatible with his innocence and incapable of explanation upon any reasonable hypothesis except that of his guilt. Though the evidence raises a grave suspicion against him, yet it cannot safely be said to be established beyond reasonable doubt that the murder must have been committed by him, or by one or more of his brothers in his presence, under circumstances bringing the case under Section 114, Indian Penal Code. But, on the other hand, I think that the evidence does suffice to show that the only reasonable hypothesis is that the appellant deliberately decoyed Naran to his doom, and that the offence under Section 364, Indian Penal Code, of which he has been convioted, is proved against him. I would, therefore, allow the appeal as to the conviction under Section 302, Indian Penal Code, and set aside the sentence of transportation for life, but confirm the conviction and sentence passed under Section 364, Indian Penal Code.
9. I agree.