Chowdhary Niamat Ullah, President
1. This is an appeal by one Satar Mir who was convicted by the Sessions Judge Jammu, for offences under Sections 302, 307 and 397, R.P.C and sentenced to life imprisonment. His appeal to the High Court was dismissed. On the recommendation of the Board, leave to appeal to His Highness was granted, the High Court having previously refused such leave.
2. The story for the prosecution presents some unusual features which induced the Board to entertain the appeal for a careful scrutiny of the evidence and the circumstances of the case.
3. It appears that Lalman (P.W. 4) owns a Water Mill at Shonsh, Police Station Doda, which has been mentioned in the evidence as 'Garrat'. He had allowed three brothers Habib, Ahmad and Sultan to work it for their own benefit without any liability to pay rent therefor. Sometime late at night between the 16th and 17th Jeth 2006, two of them, namely, Habib and Ahamdoo, were murdered outright and the third, Sultan, received serious injuries which left him in a state of unconsciousness. It seems that the assailant or assailants took him to be dead and left him in that condition. This tragedy happened in the single room in the Garrat which used to be occupied by the three brothers at night. The occurrence was not discovered till about the noon of the following day when Mst. Fazli (P.W. 3) the mother of the victims arrived at the Garrat and found her sons in the condition already stated. A blood-stained hoe was found lying nearby. According to her evidence Sultan was alive but in an unconscious state (Be-hal). He did not utter anything at that time. She managed to send one Ahmad Lone (P.W. 7) to Lalman, the proprietor of the Garrat, to inform him of the tragedy. Lalman immediately sent word to Amarchand Nambardar (P.W. 6) and the Chowkidar Vid Lal (P.W. 5) conveying the news brought by Ahmad Lone. They immediately arrived on the scene of occurrence, Amarchand endeavoured to help Sultan recover consciousness by pursuading him to take a little milk. He succeeded in his effort and Sultan was able to speak in a few moments. He said that a Mir of Ladhwana had caused the death of his brothers and injuries to him. Thereupon Lalman and Vid Lal Chowkidar proceeded to make the first information report. The Police Station was at a distance of about 17-18 miles and it was not till the 18th Chet that the first information report was recorded. This document is a combination of a written information addressed to the Deputy Inspector, Police Station Doda, in the handwriting of one Hans Raj who figures as an attesting witness together with another person who likewise attested it. Underneath this written information appears the statement of Lalman in which it is stated that Ahamdoo and Habib who were his tenants were murdered at his Garrat and their brother, Sultan, had been seriously wounded. He went on to state that according to Sultan a certain Mir of Ladhwana, whose name was not known, had committed the murders and caused injuries to him (Sultan). At a further description it was stated that the assailant had worn some black clothing made of Patoo. At the end of Lalman's statement there is an obscure passage in which it is stated that enquiry had been made in the presence of the Lambardar, Amarchand, and the Chowkidar and 'the statements are appended hereto'. It is not stated whether these are the statements of the Lambardar and Chowkidar or the substance of what Sultan had stated in their presence. No such statements were referred to in the Courts below and the point does not seem to be of any importance.
4. In the meantime further disclosures were made at the Garrat and it transpired that the accused Satar Mir who hailed from Ladhawana was staying in the cattle shed of one Teju (P.W. 9) with some cattle which he was taking to some place. Teju's evidence shows that the accused asked him for some accommodation for himself and his cattle and that as his cattle shed was vacant he allowed him to occupy it. On receipt of this information Amarchand and two other Chowkidars, Vid Lal and Rahman, went to Teju and asked him to accompany them to the Garrat. They also took with them the accused who was there, saying that men were wanted for a 'watch' (Pehra Dena Hai). The real object of Amarchand and the Chowkidar wag to have the accused identified by Sultan.
4a. When the accused appeared face to face before Sultan the latter identified him as the assailant. Thereupon the accused attempted to run away but wag immediately caught and tied with a rope so as to prevent his escape. He is said to have then confessed his guilt.
5. Sub-Inspector Mela Ram arrived On the scene on the 19th. The distance between the Police Station and the Garrat is 17 to 18 miles and no undue delay seems to have occurred in the commencement of the investigation. He prepared the usual plan of the scene of occurrence but it was not till the 27th Chet that the house of the accused was searched, and some utensils and other articles of domestic and personal use were taken possession of. They were identified as the property of the deceased and Sultan. Charge under Section 397, R.P.C. relates to these articles which, according to the prosecution, the accused had taken possession of after he murdered the two brothers and caused injuries to the 3rd. The charge under Section 307 is in respect of the injuries received by Sultan, The one under Section 302, of course, relates to the murders of Habib and Ahmad.
6. In view of the confession made by the accused before the arrival of the Police one would have expected that the investigating officer would produce the accused for a confessional statement being recorded under Section 164, Criminal P.C. This was not done. The omission would have thrown doubt on the story that the accused had made a confession in the presence of the Lambardar and others before the arrival of the Police; but all doubt is set at rest by the fact that in his statement before the Sessions Judge, while retracting his confession made before the Magistrate, the accused admitted that he had made a confession to Amarchand and others but accounted for it on the plea that he had been tied up by them and hence he confessed. He had made a confession before the Committing Magistrate in the course of his statement under Section 342, Criminal P.C. on the 17th Har 2007, fully three months after the occurrence. In retracting it before the Sessions Judge he stated that he had made it because of threats held out by the Police, He was at that time not in the custody of the Police and there is no reason to suppose that the Police, who made no attempt to extort a confession and have it recorded under Section 164, Criminal P.C. in the course of investigation, threatened him at or about the time when the accused made his statement in the course of the enquiry before the Magistrate. Nor is there any reason to think that the accused was tied with a rope by Amarchand and others to extort a confession. It is more probable that he was so secured as he had attempted to run away as is stated by the witnesses for the prosecution in jurisdiction of his being tied up with a rope.
7. A retracted confession is always a source of anxiety to the Courts and where a confession is made and recorded under Section 164, Criminal P.C. while the accused was in the custody of the Police and which is subsequently retracted, little value is rightly attached to it. In the present case the position is quite different as already mentioned. The confession before the Magistrate was made after the accused had been in the Jail lock-up for a considerable length of time. He knew that he had previously made a confession before Amar Chand and others and stuck to it subsequently. At the trial, where he had legal advice, he retracted it. He did not deny the fact that he had made a confession on two occasions but accounted for his conduct in the one case by alleging ill-treatment on the part of Amarchand and others and in the other by alleging threats held out by the Police. His allegations as regards the circumstances in which he had made the two confessions are not supported by any evidence nor do the probabilities of the case support those allegations. On the contrary, there is overwhelming evidence which has been believed by the two Courts below and the Board find no reason to differ from them after a careful examination of all the circumstances revealed by it and the probabilities of the case in so far as they bear on the voluntary character of the confessions.
8. The unusual features of the case to which reference has been made earlier are: (1) The motive alleged by the prosecution is said to be inadequate and (2) that one single individual could not have caused injuries to no less than three persons, which proved fatal in the case of two and nearly so in the case of the third. The Board have given anxious consideration to both these aspects of the case. The evidence of Sultan (P.W. 2) together with the confession of the accused which, if believed, disposes of the question of motive altogether. Where there is direct evidence of a reliable character no question of motive can arise. This is, of course, subject to the consideration that the absence of motive may throw doubt on the truth of the direct evidence, but if making all allowances for it the direct evidence can be trusted the question of motive presents little difficulty. Human nature being what it is a man's passion may be aroused at times by some very trifling circumstance, particularly where his mind suffers from some sort of temporary abnormality, (of course, not amounting co insanity). Cases frequently occur where in a momentary fit of passion a person whose mind is so constituted as to be enraged by something which would make little impression on the mind of another commits a serious offence which he afterwards sincerely repents. What is said to have happened in the present case is that the accused, who suffered from the pangs of hunger and who had first tried another Garrat for a small quantity of flour, arrived at Lalman's Garrat where he obtained a small quantity of flour for two annas (or four annas as mentioned at one place in the evidence) from the three brothers. He had asked for more but his request was not acceded to. He cooked a loaf of bread which did not satisfy his hunger. After taking his frugal meal in the evening he slept in the room occupied by the three brothers. He seems to have nourished a grievance and brooded over his own life and that of the other three who had a large quantity of flour in heir possession. The evidence does not make it clear but it seems likely that some mild altercation had taken place between the two. Even apart from it, it is conceivable that the accused felt more keenly than he should have done, the refusal of the three brothers to give him more flour. On the whole, the Board are not satisfied that the motive alleged in the present case is so inadequate as to justify a total rejection of the evidence of Sultan and the accused's own confession deposed to by a number of witnesses whose veracity is not open to challenge nor has it been challenged on any reasonable ground.
9. As regards the improbability arising from the fact that the accused single handed caused such injuries to three persons as to cause the death of two and almost fatal injuries to the third, it should be borne in mind that after taking his meal the accused slept in the room occupied by the three brothers. At one stage of the argument it was suggested that the room was too small to afford accommodation to no less than four persons but it was ascertained from a piece of evidence on the record that the room is 21 9 and thereupon the learned Counsel did not press this contention. There was no light in the room; the accused had picked up a hoe which was lying on the spot and attacked his sleeping victims. It may be that the attack on the first victim was likely to have aroused the other two, but it is equally likely that before they realized what was happening he knocked down the remaining two in quick succession. According to the post mortem report the injuries which caused the death of Habib were on his head and face; similarly the injuries received by Ahmad were on the upper part of the body including head and face. Sultan received two injuries one near his left ear and the other near his right eye. It is clear that all the three received their injuries in a lying posture or while they were getting up. The Board are of opinion that the act that the accused caused all these injuries with a hoe is not so improbable as to make the case for the prosecution doubtful to any appreciable degree.
10. It was suggested that the recovery of the articles from the house of the ac-cussed on a search made after several days is worthy of no consideration as the same might have been planted. If the case for prosecution had rested wholly or even mainly on such recovery the Board would have paused to make a more thorough examination of this part of the case, but as they are of opinion that the charge of murder has been established, they do not consider it worthwhile to adopt that course. The sentence of life imprisonment for the offence of murder would cover lesser sentences for other offences and it is needless to consider how far the recovery of the articles from the house of the accused can be due to the same having been planted in his house for the purpose of securing additional evidence to support the charge of murder.
11. In the result, the Board are satisfied that the Sessions Judge and the High Court rightly arrived at the conclusions at which they did and humbly advise His Highness to dismiss the appeal.