(1) The appellants have been convicted of offences Under Sections 302 and 447, IPC by the Sessions Judge, Halar District, and sentenced to transportation for life & one month's rigorous imprisonment respectively for the said offences. They were alleged to have trespassed into Ramvadi near the village of Bhatel about 10 or 12 miles from Khambhalia in the Sessions Division of Halar and committed the murder of one Manubha in the early hours of 31-10-52. The deceased Manubha was sleeping on a cot in this Vadi and in the Vadi were also sleeping three other persons (1) Jorubha, (2) Ravubha and (3) Sava Ranmal, the sathi of the deceased. There is no dispute that there existed an old feud between the families of the appellants and the deceased who are all distant cousins.
About 4 or 5 years before the present incident Vajesing who was the nephew of the first appellant Dosaji Kalaji was alleged to have been murdered by four persons (1) Manubha, the deceased, (2) Jorubha, who figures as a witness in the present case, as he was sleeping at the Ramvadi at the time of the murder of Manubha, (3) Nagji, the father of the witness Ravubha, who was also sleeping at the Ramvadi and (4) Sidubha, the cousin of Jorubha and a partner in the Ramvadi. These 4 persons were tried for the murder of Vajesing. Jorubha was given the benefit of doubt and acquitted; Manubha, the deceased, was sentenced to three years' rigorous imprisonment and the other two. i. e. Nagji and Sidubha were sentenced to transportation for life. They are still in jail, while the deceased after serving the sentence was at large. The second appellant Shivubha is the nephew of the first appellant Dosaji Kalaji. He is a very young man of 17 or 18 years of age, while the First appellant Dosaji is an old man of about 60 years.
(2) There is no dispute that the deceased was most brutally done to death and died on the spot before he could make any statement. He had in all 11 external injuries, 6 of which were incised wounds and others were abrasions and lacerated wounds, one being a contused wound; two of the injuries were fatal and the conclusion from the medical evidence is that at no time there was any chance of survival: immediate death must have occurred in less than five minutes; there were as many as 6 fractures of the skull bone. So there is no doubt that the persons guilty of inflicting such injuries must be guilty of the offence of murder in the first degree. Mr. O. N. Shah, the learned Advocate for the appellants, has also not addressed us so far as the nature of the offence committed is concerned.
(3) The only question is about the identity of the assailants. In the first information report or occurrence report alleged to have been given by Jorubha the names of Sadubha & Gagubha along with two appellants are mentioned as the assai-ants. There is considerable confusion as regards these reports and the learned Sessions Judge has adversely commented upon the truth of the witnesses who have given evidence as regards them. His conclusion is that although the offence had taken place after midnight, these reports were probably not prepared at 4 a. m. but prepared at about 7 a. m. a little before the train departs for Khambhalia. He observes:
It means that Jorubha who says that he had identified all the four assailants had failed to lodge his first information immediately and when in fact he did lodge the F. I. R. he had sufficient time to cool down and to concoct the names of the assailants of the deceased.
At this stage we might mention that the appellant Dosaji went to Khambhalia where he surrendered himself and gave the first information at about 9 a m. In this report he confesses to have murdered the deceased and also makes a reference to the strong motive he had. He produced an axe with which he murdered the deceased and also surrendered the blood-stained clothes he was wearing. The P. I. R. by the accused being in the nature of a confession would not be admissible Under Section 25 of the Indian Evidence Act but whether the whole of it would be inadmissible or only that part of it which is strictly in the nature of a confession is a moot point on which there is some disagreement between the different High Courts.
The Bombay High Court in - 'Harnam Kisha v. Emperor1 AIR 1935 Bom 26 (A), held that if the first information was given by the accused to a police officer and that information admitted his own guilt, it was a confession which Section 25, Indian Evidence Act, would not allow to be proved. Ifthe confession showed opportunity for the offence, motive for the offence, and commission of the offence, it would not be said that the portion of it which deals with the opportunity, or the portion of it which deals with motive, could be treated as no part of the confession. The whole confession therefore inclusive of the portion containing the motive and the opportunity will have to be ruled out of consideration. This decision has been dissented from by other High Courts, which seem to be of the opinion that only the portion which can be strictly construed as a confession is inadmissible but other parts of the statement which refer to motive or opportunity would be admissible.
These decisions are - 'Bharosa Ramdayal v. Emperor' AIR 1941 Nag 86 (B); 'Mohammada v. Emperor' AIR 1948 Lah 19 (C), 'Kartar Singh v. State' AIR 1952 Pepsu 98 (D), and _ 'panna v. State' AIR 1950 Ajmer 75 (E). We do not think it necessary to give our definite opinion about this contentious point but we are clearly of the opinion that the statement of this accused Dosaji relating to the surrender of axe and of the blood-stained clothes would be admissible Under Section 27, Indian Evidence Act. Even in the Bombay case this principle is recognised, as Beaumont O. J. says:
That is to say, the confession shows opportunity for the offence, motive for the offence, and commission of the offence, and it seems to me impossible to say that the portion of it which deals with opportunity, or the portion of it which deals with motive, can be treated as no part of the confession. If the confession is suspect as having been induced by improper means, it is obvious that the whole confession may have been so induced, and that the truth may be that the accused was never in the house at all. Therefore in my opinion we must exclude from the evidence the whole of Ex. 16. If that is so, we are left with nothing but this, that the body of the accused's wife was found in his hut in the early morning, that she had obviously been murdered with a dharia or some similar weapon, that the accused handed over to the police a dharia stained with human blood and the clothes he was wearing were also stained with human blood. In his statement to the Sessions Court, he explains these facts by saying that when he came back from his field he found his wife murdered, that he took the dharia which was lying beside her and got blood stains on his clothes in attending to her body. If one excludes the confessional statement, it seems to be obvious that the evidence which remains is not sufficient to justify conviction.
In the 'Nagpur case' it was observed that it was wrong to contend that the statement made to the police officer resulting in the discoveries i. e. finding out the body of the deceased and of the blood-stained lathi could not be used Under Section 27, In the 'Ajmer case' the accused had murdered his brother with an axe and himself reported the matter to the police. The first part of the first information report described the events which led to the murder, the second part dealt with the murder proper, while the third part dealt with subsequent events giving information to the police as to where he had hidden the blood-stained axe. The axe was recovered in consequence of this information. It was held that the whole of the first information report need not be excluded from evidence but merely the confessional part of it should be excluded. The part which dealt with opportunity and motive for the crime was admissible in evidence. The third part was also admissible Under Section 27, Evidence Act.
In the 'Pepsu case' also the facts which justified the application of Section 27, Indian Evidence Act, were held admissible. In a recent case of the Madras High Court - 'In re Mottai Thevar : AIR1952Mad586 , while discussing Section 27 Mack J., observed:
There is the important proviso to this, contained in Section 27, which makes admissible information by an accused person, leading to discovery, whether it amounts to a confession or not, which relates distinctly to the fact thereby discovered which has undoubtedly given Courts and Investigating Police very great difficulty. In - 'Athappa Goundan v. Emperor' AIR 1937 Mad 618 (G), a Full Bench of this Court attempted to broaden the scope of this proviso by holding that a statement connecting tile object discovered with the offence was admissible and that for instance if an accused aid 'this is the spear with which I stabbed the deceased' and then shows the spear in a place of concealment, the confessional portion of that statement is admissible. But in - 'Pulukuri Kottaya v. Emperor1 AIR 1947 PC 67 (H), this decision has been overruled by the Privy Council. It discontinued a practice which had become a tradition with investigating Police officers of working into confessions such incriminating adjectival clauses relating to all sorts of discoveries. Applying Sections 25, 26 and 27 to the present case in the light of the Privy Council decision, all that is legally admissible in the confession made by the appellant at the police station was that he brought with him a bloodstained spear.
(4) Considering the above decisions, it seems clear that the fact of the production of the axe and the blood-stained clothes by the accused Dosaji would be admissible Under Section 27, Indian Evidence Act, We offer no opinion as regards the admissibility of the statement as to motive of the crime contained in the first information report as we Said it not necessary to do so. There is ample evidence apart from this first information and Mr. Shah the learned advocate for the appellant has not challenged the existence of the motive set up by the prosecution.
(5) Coming to the merits of the case proper, as stated above, there were three persons who were at the Ramvadi at the time the deceased was murdered. Of these Ravubha states that he was asleep and had not got up at the cries of the deceased and what he deposed to was told to him by Jorubha. The main witnesses of the prosecution are Jorubha and Sava. Now Jorubha is a person who had strong enmity with the accused. This is not disputed. He was sleeping under a cart, while Sava was sleeping at a distance of about 40 to 45 feet from the deceased. It was a bright moon-lit night. Mr. Shah the learned advocate for the appellants has challenged the evidence of Jorubha on three grounds: (1) strong enmity and his tendency to exaggerate and rope in other members of the family of the accused, (2) that he was in fact asleep at the time of the assault as he was awakened by Sava and he was therefore not an eyewitness as he purports to be and (3) that his evidence has not impressed the Sessions Judge as it is full of major contradictions. The learned Sessions Judge says:
In view of the fact that Jorubha has open and ostensibTe hostility with the accused, it is possible that he would tell lies even though he was not awake and even if he was awake he would try to rope in as many persons as possible for the murder of the deceased. Certainly if the case would rest on the uncorroborated testimony of this witness, I am certain that I will hesitate before convicting the accused, because it Is possible that he would involve along with the real culprits the innocent persons also.
We have already quoted the opinion of the Sessions Judge as regards the first information or occurrence reports given by this Jorubha and the strong possibility of his having exaggerated the events. So we do not attach much importance to the evidence of Jorubha agreeing with the opinion of the Sessions Judge. The entire prosecution case rested upon the evidence of the other eye-witness Sava Ranmal.
(After discussing the evidence of Sava Ranmal his Lordship proceeded further). As we have serious doubt in accepting the evidence of Jorubha we have to see how far Save can be relied upon as regards the identification and to what extent such identification can find corroboration from other independent evidence. Although before the Sessions Court he stated that he saw four persons assaulting the deceased, in his police statement he had mentioned that only 2 or 3 persons were beating the deceased and in the Committing Magistrate's Court he stated that he had recognised only the two appellants. So even the evidence of this witness is not wholly satisfactory. He goes even to the extent of saying that he was threatened by the Sub Inspector of Police not to reveal the names of the other assailants. On the other hand, Jorubha's tendency is to rope in other persons belonging to the accused's family.
It, therefore, becomes difficult to find Where the exact truth lies. Sava is alleged to have recognised these persons at a distance of about 40 to 45 feet from the place where he was sleeping. Considering the serious nature of the offence with which the appellants are charged, his evidence also in our opinion would not be sufficient proof in view of his contradictions, but we have in the present case as against the first appellant Dosaji the fact of his having produced the axe and the blood-stained clothes soon after the occurrence of the crime. Taking Sava's evidence along with this fact, we find ample justification for coming to the conclusion that at least the first appellant was guilty of the offence of murder as his identification is established beyond all reasonable doubt as being one of the assailants. So far as the other accused Shivubha is concerned, we are of the opinion that he should be given the benefit of doubt as the only evidence against him about his being on the spot is that of Sava and which for the reasons stated above is not wholly satisfactory and that of Jorubha whose evidence is open to grave suspicion.
(6) Under the circumstances, we confirm the conviction and sentence of the first appellant Dosaji Kalaji and set aside the conviction and sentence of the second appellant Shivubha Madhav-sinh and order him to be set at liberty forthwith.
(7) I agree.