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Mirza Zahid Beg and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1938All91; 173Ind.Cas.838
AppellantMirza Zahid Beg and ors.
RespondentEmperor
Excerpt:
.....a proper post mortem examination to be made and that they were therefore instrumental in causing evidence of the commission of an offence of murder or culpable homicide or causing hurt to be destroyed. when more persona than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. learned counsel relied upon a phrase used in a well-known judgment of this court and argued that these two men were not 'tarring themselves with the same brush' as zahid beg. emperor (1929) 16 air pat 275. some of these rulings are of no great assistance because whatever the..........is no direct evidence on the point.3. the other part of the story deals with the disposal of the body. dwarka was zahid beg's syce. it is alleged that zahid beg sent him to fetch man khan from a hamlet a mile or so away at midnight and; when dwarka and man khan returned to the house, induced them to take away ajudhi's body tied up in a bundle and to throw it into a ravine some distance away from jaitpur. the body was recovered a couple of days later in an advanced stage of decomposition. it was identified by the clothes, i.e. the chaukidar's uniform and by some papers which were found upon it. the doctor who made the post mortem examination found that there was a fracture seven inches long on the right side of the skull with a depression a little larger than the size of a silver.....
Judgment:

Allsop, J.

1. The three appellants in this appeal are Zahid Beg, Man Khan and Dwarka. Zahid Beg has been sentenced to rigorous imprisonment for a period of 8 years under Section 304, I.P.C., for the offence of culpable homicide not amounting to murder and to rigorous imprison. merit for a period of 2 2/1 years under Section 201, I.P.C., for attempting to destroy evidence of this offence. The other two appellants have each been sentenced to rigorous imprisonment for a period of two years under 201, I.P.C. Zahid Beg was the Sub-Inspector in charge of the police station at Jaitpur in the district of Agra. A double murder was committed at Naugawan about eight miles from Jaitpur on 16th or 17th June 1936. On 17th June, sometime about 6 or 7 P.M., Ajudhi, chaukidar, went to Jaitpur to report this occurrence. It is agreed that the appellant Zahid Beg was not present at the police station at the time. His own story is that he had been away from the 15th and did not return till 20th June. According to the prosecution he returned to the police station at about 9 o'clock that evening. It is alleged that he had given instructions to the clerk that reports of serious offences should not be recorded in his absence if there was a likelihood of his returning to the police station within a reasonable time. In compliance with these instructions, the clerk detained Ajudhi, chaukidar, till Zahid Beg's return.

2. The story put forward by the prosecution is that Zahid Beg questioned the chaukidar about the double murder and got angry with him because he thought that he was concealing facts of which he must have knowledge. It is said that Zahid Beg slapped and thumped Ajudhi and knooked him down. After that he dictated a draft report to the clerk and the clerk took the draft report into the police station and copied it out on the proper form. The clerk took Ajudhi with him into the police station. When the report had been completed, a copy was given to Ajudhi and he was told to take it back to Naugawan where one of the head constables had already gone. When Ajudhi came out of the police station with the report, the Sub-Inspector called to him, caught him by the arm and took him in side his private quarters. The prosecution allege that the Sub-Inspector killed Ajudhi in the house although there is no direct evidence on the point.

3. The other part of the story deals with the disposal of the body. Dwarka was Zahid Beg's syce. It is alleged that Zahid Beg sent him to fetch Man Khan from a hamlet a mile or so away at midnight and; when Dwarka and Man Khan returned to the house, induced them to take away Ajudhi's body tied up in a bundle and to throw it into a ravine some distance away from Jaitpur. The body was recovered a couple of days later in an advanced stage of decomposition. It was identified by the clothes, i.e. the chaukidar's uniform and by some papers which were found upon it. The doctor who made the post mortem examination found that there was a fracture seven inches long on the right side of the skull with a depression a little larger than the size of a silver eight-anna piece in the centre. The doctor said that the contents of the chest and the abdomen were missing and so were the covering of the chest and the abdominal wall. The left 'leg and the lower jaw ware also missing. The doctor in his examination-in-chief said that the man appeared to have been killed by a heavy lathi blow on the head and most of his body devoured by wild beasts. At a later stage, he said that he could not say whether the head injury was caused before or after death and admitted that death might have been due to some internal injury.

4. There are several witnesses who give evidence that the Sub-Inspector slapped, thumped and kicked Ajudhi Chaukidar, but before discussing their evidence, I think, it will be convenient to deal with the state, menta made by Dwarka and Man Khan before the Magistrate and maintained by them to be true both in the committing Court and in the Court of Session. Dwarka said that the Sub-Inspector hit Ajudhi twice with a 'hunter', i.e. with a hunting crop or stick of some kind. He also said that the Sub-Inspector gave Ajudhi one or two kicks and knocked him down and then gave him two or three more kioks. After that he said he went to sleep and was awakened some time between 10 o'olock and midnight by the Sub-Inspector who told him to fetch Man Khan. He said he 'fetched Man Khan and then the Sub-Inspector took them inside the house and pointed out a bundle which he told them to throw into the jungle. He said he asked the Sub-Inspector what the bundle contained The Sub-Inspector replied that he should take it and throw it away and that if he naked any more questions he would be shot. After that Man Khan and Dwarka picked up the bundle, carried it to the jungle and threw it into a ravine. In the committing Court, he added that the Sub. Inspector had accompanied him and Man Khan for a distance of about two or three fields taking a pistol with him. Man Khan did not make any statement about the beating of the chaukidar by the Sub. Inspector but he made a similar statement to that made by Dwarka about the removal of the body. He also said that the Sub-Inspector had threatened to shoot him if ho die not carry the bundle away and that the Sub-Inspector had gone some distance with thorn with a pistol in his hand.

5. The first question which arises is whether these statements are admissible in evidence at all and the next is whether they are admissible against Zahid Beg. It has been argued that the statements did not amount to confessions because Dwarka and Man Khan alleged that they had acted on compulsion. Both these men clearly admitted that they had taken the body away to a place where it was not likely to be recovered in time for a proper post mortem examination to be made and that they were therefore instrumental in causing evidence of the commission of an offence of murder or culpable homicide or causing hurt to be destroyed. The facts that they allege certainly constitute an offence punishable under Section 201, Penal Code unless it can be shown that one of the general exceptions in that Code is applicable to them. The only section upon which they can rely is Section 94 which says:

Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence.

6. The offence which Dwarka and Man Khan committed was the destruction of evidence. Doubtless they began to commit the offence when they took the bundle from the Sub-Inspector's house, but the offence was not completed till they had disposed of the body in a place where it was not likely soon to be recovered. If we are to accept their statements as a whole, they began to commit the offence under threat of being shot and at that stage it may be said that they could claim the protection of the provisions of Section 94, Penal Code, but they both admit that the Sub-Inspector left them after they had gone a short distance, and if at that stage they had left the body or had taken it to some place where it could be recovered immediately, no harm would have been done. They certainly completed the offence when all danger of instant death had been removed. The facts therefore which they allege constitute an offence and their statements amount to confessions. As they both pleaded not guilty in the Court of Session, it may be presumed that they thought or hoped that they would be exonerated on account of the threat which they alleged, but whether the statements amount to a confession or not depends upon the facts related in the statements and not upon the opinion of the men who made them. In these circumstances I have no doubt whatsoever that the statements amounted to confessions and were admissible against Man Khan and Dwarka. The question whether these confessions are also admissible against Zahid Beg depends upon the provisions of Section 30, Evidence Act. This section is as follows:

When more persona than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

7. On behalf of Zahid Beg it is argued in the first place that he and the other two men were not being tried for the same offence because he was being tried for offences punishable under Sections 304 and 201, I.P.C., and they were being tried only for an offence punishable under the latter section. There can be no doubt that that part of Dwarka's statement which tends to prove that Zahid Beg made an attack upon the chaukidar is not admissible against Zahid Beg. I think however that it is impossible to say that Zahid Beg, Dwarka and Man Khan were not being jointly tried for the same offence punishable under Section 201, I.P.C., and therefore it seems to me that the statements in so far as they amount to confessions that that offence was committed are admissible against Zahid Beg. I do not think it matters that Zahid Beg was also being tried for another offence in which Man Khan and Dwarka were not alleged to have taken part.

8. The second argument advanced is that the statements of Dwarka and Man Khan are not admissible against Zahid Beg because Dwarka and Man Khan were attempting to minimise their own guilt and imputing to Zahid Beg the main responsibility for the commission of the offence. Learned Counsel relied upon a phrase used in a well-known judgment of this Court and argued that these two men were not 'tarring themselves with the same brush' as Zahid Beg. A number of rulings have been quoted, viz. Queen v. Belat Ali Moonshee (1873) 19 W.R. Cr. 67, Nawab v. Emperor (1935) 22 A.I.R. Lah 35, Sheroo v. Emperor (1925) 12 A.I.R. Nag 78 and Kunja subudhi v. Emperor (1929) 16 AIR Pat 275. Some of these rulings are of no great assistance because whatever the learned Judges may have said in the course of their judgment, the facts were such that the statements did not amount to confessions and consequently were clearly outside the provisions' of Section 30, Evidence Act. On the other hand, it must be admitted that the argument advanced on behalf of Zahid Beg does receive support from the judgment in Emperor v. Shambhu : AIR1932All228 .

9. In my view however there is grave danger in relying upon a course of rulings rather than upon the terms of the statute itself when a question of law arises which depends on the interpretation of a statute. I have already quoted the terms of Section 30, Evidence Act, and I think it must be conceded that there is nothing in those terms which suggests that a confession is not admissible in evidence against a person who is being tried jointly for the same offence with a man who has made the confession if the confession minimises the guilt of him who makes it and exaggerates the guilt of the other. The section says that the confession must affect them both. It does not say that it must affect them both equally. Where there is authority for the interpretation of some part of a statute which is susceptible of more than one interpretation, authority must be followed, but where there is no ambiguity, it seems to me that dicta which might suggest that a meaning is imputed to a statute which it cannot bear must be read in connection with the facts of the case in which they are expressed. There is no doubt a fundamental difference between the admissibility and the credibility of evidence, but for all practical purposes if it is said that evidence cannot be believed, it may just as well be said that it is not admissible.

10. In Emperor v. Shambhu : AIR1932All228 the learned Judges pointed out that the un-corroborated evidence of a confession against one who has not made it is of very little value. It is indeed no more than the evidence of an approver and it has a further weakness that the person making it cannot be subjected to cross examination. In these circumstances, although the learned Judges who decided the case in Emperor v. Shambhu : AIR1932All228 made use of expressions which suggest that confessions of this kind are not admissible against others when he who confesses minimises his guilt, I think they must have meant that such confessions, if uncorroborated, were of practically no value and should be ignored. My conclusion is that the statements of Dwarka and Man Khan are admissible against Zahid Beg in so far as they allege his complicity in the offence or disposing of the body.

11. Learned Counsel for Zahid Beg also put forward the argument that his client and the other two could not be said properly to have been tried jointly for this offence because there was a misjoinder of charges. He suggested that the offence of causing Ajudhi's death and the offence of disposing of his body were two entirely different matters and could not be said to have been parts of the same transaction. He referred to the case in Surendra Lal Das v. Emperor : AIR1925Cal413 . It is conceivable in some circumstances that the primary offence and the offence of destroying evidence of the primary offence are two unconnected matters, but I do not think that it can possibly be said that they can in no circumstances be parts of the same transaction. My attention has not been drawn to any case of this Court in which it has been held that there has been a misjoinder of charges where a joint trial has taken place for the commission of a primary offence and for the offence of destroying evidence. In my experience, I have known many trials of this nature and the question of misjoinder does not seem ever to have been raised. In the case before me the incidents were so closely connected in point of time that I have no hesitation in saying that the acts which resulted in Ajudhi's death and those which resulted in the disposal of his body were parts of the same transaction. I hold therefore that there is no force in the argument advanced. The question whether the confessions should be believed is one which must be considered in connexion with the other evidence in the case. (His Lordship then discussed the evidence and proceeded.) I believe therefore, In agreement with the; learned Sessions Judge, that the Sub-Inspector did attack the chaukidar, that the chaukidar died as a result of injuries caused to him and that the Sub-Inspector with the help of Dwarka and Man Khan disposed of evidence of the offence by having the body deposited in a place where it was not likely to be recovered in a reasonable time.

12. There remains the question whether the Sub-Inspector was rightly convicted of the offence of the culpable homicide not amounting to murder. The learned Judge has argued that apparently the injury caused in the attack was not of a very serious nature, that there was a fracture of the skull which was the probable cause of death and that the Sub-Inspector consequently must have caused that fracture after he had taken the chaukidar into his house. To my mind, this process of reasoning is not convincing. It is true that the chaukidar went into the police station after he was beaten, that he was there while the draft report was being, copied out, that he put his thumb impression upon the document and that he afterwards came out without assistance, but on the other hand, all the witnesses say that he complained that he was in great pain which would suggest that he had received some internal injury and the fact that the Sub-Inspector took him into his house does not necessarily suggest that there was any intention on the part of the Sub-Inspector to cause him further injury. That action was equally consistent with art apprehension on the part of the Sub-Inspector that he had gone too far and that the man might be seriously hurt. No motive whatever is suggested why the Sub-Inspector should have wished to have caused any serious injury to the chaukidar. He was annoyed with him and beat him, but he had no motive for doing any serious harm. The statement of Dwarka that the Sub-Inspector hit the chaukidar on the bead with a stick is not in my opinion admissible and the result is that there is absolutely no evidence at all that the Sub. Inspector at any time used any weapon which could have caused the fracture of the skull. The fact that the skull was fractured is not a circumstance from which it must inevitably be inferred that that injury was caused by Zahid Beg. The learned Judge has thought that it was impossible for the injury to be caused when the body was thrown into the ravine. Mr. Measures has described this ravine as being about 25 feet deep with sides sloping at an angle of about 60 degrees. There were no stones or boulders but there were kankar beds and shrubs in the ravine. The doctor's evidence shows that the chaukidar was a man of about 60 years of age. It may be improbable that the fracture of the skull was caused by throwing the body into the ravine after death, but I do mot think it can be said that it was impossible. It seems to me equally improbable that the Sub-Inspector caused the fracture of the skull if we are to accept the evidence of the witnesses for the prosecution that he did not do so at the time when he first attacked the chaukidar. He may of course have done so, but his is a matter of pure conjecture.

13. In the absence of any direct medical evidence on the point, it is not impossible that death may have been caused by some internal injury inflicted by the Sub-Inspector when he first attacked the chaukidar. That is the most that can be said. Of the two alternatives that the Sub-Inspector caused the death of the chaukidar by hitting him on the head with a lathi or similar weapon and that the Sub-Inspector caused his death by inflicting some internal injury, we must act upon that which involves the lesser guilt. The question then is what offence the evidence establishes.

14. In all the circumstances of the case it is impossible to believe that the Sub-Inspector actually intended to cause death or even grievous hurt. He would be guilty of culpable homicide or of an offence punishable under Section 325, I.P.C., if it were established that the nature of the attack made by him was such that he would have reason to believe that death or grievous hurt might ensue. The admissible evidence does not suggest anything of the kind. There is no medical evidence to show exactly what injury was caused or in what part of the body it was caused. The chaukidar was an old man and it is possible that internal injury resulted in an unexpected way. I do not think there, fore that in this case it can be said that any more serious offence was committed than one of voluntarily causing hurt which is punishable under Section 323, I.P.C. On the other hand, an assault upon an old-man of 60 made in such a way that death resulted, even if that result was in some way unexpected, was an attack of a very brutal nature. I would therefore inflict the severest sentence for this offence that it is possible to inflict.

15. About the other offence punishable under Section 201, I.P.C., it has been argued that the Sub-Inspector cannot be said to have committed it because he was not present when the body was actually deposited in the ravine, i.e. that he left the other two before the body had actually been removed to a place where it could not have been found. I do not think that there is any force in this argument. The offence consisted in taking the body from the house to the ravine. It was the intention of all three that the body should be placed somewhere where it would not be discovered and Zahid Beg assisted in at least part of the transaction of disposing of the body.

16. Before I conclude this judgment, I may mention that it has been suggested that it was unfair to Zahid Beg that the two other men should not have been convicted on their confessions and should therefore not have been available as witnesses who could be cross-examined. This suggestion overlooks the fact that the two men pleaded not guilty in the Court of Session. They could not be convicted on their plea and once the trial had begun, no conviction could be recorded till it was concluded. There was no interim stage at which Man? Khan and Dwarka could have been convicted while the trial of the Sub-Inspector continued.

17. The result is that the convictions under Section 201, I.P.C., must be upheld, but the sentences must be reduced. I set aside the conviction of Zahid Beg under Section 304, I.P.C., and the sentence passed upon him under that section. I convict him instead of an offence of voluntarily causing simple hurt and sentence him under Section 323, I.P.C., to rigorous imprisonment for a period of one year. I maintain the convictions of all three appellants under Section 201, I.P.C., but reduce the sentences against each of them to rigorous imprisonment for periods of three months. The sentences upon Zahid Beg under Section 323 and Section 201, I.P.C., will be concurrent.


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