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Emperor Vs. Ganesh Chandra Goldar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal458,74Ind.Cas.264
AppellantEmperor
RespondentGanesh Chandra Goldar
Excerpt:
evidence act (i of 1872), section 24 - 'person in authority'--collecting and assistant panchayat--confession to panchayat upon inducement, admissibility of--subsequent statement to magistrate--confession retracted afterwards, effect of. - .....and he described himself as a 'thakur'. it was after these people had assembled that the accused person, who was known to have been animated by feelings of enmity against kali kumar mozumdar, was summoned to the house. this was in the early morning after the night when the attack upon kali kumar mozumdar was made, and the evidence is that he was brought into the presence of *he corpse, that he was trembling and pale and could hardly speak or stand up. when asked to say what he knew about it, after some little time he is supposed to have said that he could not say anything. eventually he asked to be taken aside and said that then he would state what he knew. thereupon he was taken co another part of the compound, and in the presence of banamali biswas? manikya bala dinabandhu.....
Judgment:

Lancelot Sanderson, C.J.

1. This is a Reference by the learned Sessions Judge of Faridpur in a case in which Ganesh Chandra Goldar was charged with murder and with conspiracy. There is no doubt that the deceased man, Kali Kumar Mozumdar, was murdered on his way home about the middle of the night after having attended an arbitration, and the case for the prosecution was that the accused person and others attacked him as he was passing a clump of trees and injured him severely. Although he was able to drag himself to the nearest house, which belonged to a man namea Kailash Chandra Sarkar, he died very shortly afterwards without being able to give any indication as to the persons who had attacked him.

2. The case against the accused depends almost entirely upon certain confessions which the accused is alleged to have made. Certain of the neighbours assembled at the house of Kailash in answer to a summons from Kailash, including the two panchayats, Amrit Lal Basu, who was the collecting panchayat, and Mahodeo Biswas, who was the assistant panchayat, and a man called Dinabandhu Sarkar, who described himself as a cultivator, bat who seems to be one of the men who took a lead in what, took place subsequently and he described himself as a 'Thakur'. It was after these people had assembled that the accused person, who was known to have been animated by feelings of enmity against Kali Kumar Mozumdar, was summoned to the house. This was in the early morning after the night when the attack upon Kali Kumar Mozumdar was made, and the evidence is that he was brought into the presence of *he corpse, that he was trembling and pale and could hardly speak or stand up. When asked to say what he knew about it, after some little time he is Supposed to have said that he could not say anything. Eventually he asked to be taken aside and said that then he would state what he knew. Thereupon he was taken co another part of the compound, and in the presence of Banamali Biswas? Manikya Bala Dinabandhu Thakur, Mohendra Nath Biswas, Mahadeo Biswas, Amrita Lal Basu and perhaps one or two others he is alleged to have made a confession that he was concerned in the murder of the deceased man with others whose names he mentioned. This confession is spoken to by the witnesses to whose evidence the learned Judge has referred. The accused was detained by the villagers. The Sub-Inspector arrived on the next day and committed him to custody. On the following day he was taken before a Magistrate who, after warning him and after satisfying himself that the statement he was about to make was to be made voluntarily, recorded his confession, which amounted to a statement that he had been concerned with others in the murder of this deceased man. At the trial that confession was withdrawn, and the accused person said taut, he had never made the statement which was spoken to by the panchayat, the assistant panchayat and Dinabandhu and others shortly after the murder.

3. The Jury were unanimous in their verdict of acquittal and they added that they were not satisfied that the confessions of the accused were true or that they had any evidence value. The learned Judge came to the conclusion that there was no doubt that these confessions were proved, and there was a certain amount of corroboration and that he was convinced that the accused was guilty and clearly ought to be convicted.

4. There is one point in this case which does not seem to have been noticed by the learned Judge and that is that Amrita Lal Basu, when he was giving evidence before the Committing Magistrate, said as follows: 'He', that is to say, the accused, 'was then taken in another part of the compound, and in the presence of Banamali Biswas, Manikya Bala, Dinabandhu Thakur, Mohendra Biswas and one or two other persons he stated that he was ready to speak out the truth if he was saved from the consequences. Dinabandhu and others told him that he would be let off if lie disclosed everything.' That evidence was given in February 1922. This witness while giving evidence at the trial said: 'None of us told the accused that they would let him go if he spoke the truth. I did not say before the Committing Magistrate that Dinabandhu and others told him that he would be let oil if he disclosed everything.' Therefore he contradicted the statement which he had made before the Committing Magistrate. He went so far as to say that he did not say what appeared in his deposition. In my judgment, however, it must be taken for the purpose of this reference that he did say before the Committing Magistrate that which appears in his deposition, which I have read. It is significant that the statement was made in February and his renunciation of it was made in April. I do not know what influence may have been brought to bear upon him in the interval. Dinabandhu was cross-examined on behalf of the accused and he said, 'We did not tell the accused that he need not be afraid and that no harm should come to him.' That statement was made in April at the trial. For the purpose of my judgment, I propose to assume that that which appears at page 27 of the paper-book in the evidence of Amrita Lal Basu before the Committing Magistrate is true, that the accused did ask whether if he spoke out the truth he would be saved from the consequences, and that he was assured that he would be let off if he disclosed every thing, and that in consequence of that assurance he made the statement.

5. Now, the question is whether that statement is admissible in evidence and that depends upon the provisions which are to be found in Section 24 of the Evidence Act, which provides: 'A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.' I have no doubt that the inducement was given to the accused. I have no doubt that it was sufficient to give the accused grounds which would appear to him reasonable in supposing that he would gain an advantage in reference to the proceedings; and the only question which causes any difficulty in my mind is whether the inducement was one which proceeded from a 'person in authority.' It has been suggested by the learned Vakil on behalf of the accused that the collecting panchayat and the assistant punchy at were both 'persons in authority' within the meaning of the section. There is no definiton in the Indian Evidence Act of a 'person in authority.' The words have been construed in England, and the test which has been applied is this: Had the persons authority to interfere in the matter? As far as the accused is concerned, I have no doubt that he thought that the persons, or some of them, to whom he addressed the question whether he would be saved from the consequences if he spoke out the truth, were 'persons in authority,' but that would not be sufficient to justify us in holding that they were 'persons in authority.' In my judgment, having regard to the position of the collecting panchayat and the position of the assistant panchayat and the part which they were taking in holding the enquiry into the circumstances of the murder, it must be held, on the facts of this case, and I confine myself to the facts of this case, that they must be taken to have been 'persons in authority.'

6. Then the next question is: Did the inducement proceed from either of these two men whom I have held to be 'persons in authority' on the facts of this case? There is no sufficient evidence in my judgment, to show that the inducement proceeded from the collecting panchayat, Amrita Lal Basu, but I think there is just sufficient evidence to justify us in holding that the inducement proceeded from Dinabandhu and others who would, in my opinion, include Mahadeo Biswas--the assistant panchayat. Consequently, I am prepared to hold that the inducement did proceed from the assistant panchayat and others and that, under the circumstances of this case, the assistant panchayat was a 'person in authority'. Consequently, in my judgment, the confession, which the accused is alleged to have made after he had been assured that he would be saved from the consequences, was not admissible by reason of the provisions of Section 24 of the Evidence Act. If that be so the real ground upon which the learned Judge referred this case to this Court disappears.

7. It is true there is the confession which the accused made before the Magistrate. That was a retracted confession, and it would not be admissible in. evidence unless it were shown that the impression which was made upon the accused's mind by the inducement, which was held out to him in the way which I have described,-had been entirely removed from his mind before he made his confession before the Magistrate. That matter has not been considered by the learned Judge, and there is no finding by the learned Judge upon this point. It is difficult for this

8. Court to come to the conclusion that, if the accused was induced by the promise which was made to him by Dinabandhu and others to make the first confession, that inducement was not, to some extent, the cause of his making the confession before the Magistrate.

9. For these reasons, in my judgment, this Reference ought not to be accepted, and the accused should be discharged and released from custody.

Panton, J.

10. I agree.


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