Authored By : Henry Thoby Princep, C.H. Hill

Henry Thoby Princep and C.H. Hill, JJ.

1. Three persons--Jadub Das, Mangal Das, and Rai CharanDas--were tried in the Sessions Court of Jessore on a charge of murder bycausing the death of one Jogeswar Das by strangling him, and in the SessionsCourt a further charge of abetment under Section 114 of the Indian Penal Codewas added by the Sessions Judge against Jadub Das. The jury returned anunanimous 298] verdict of acquittal and the Sessions Judge has referred thecase to us under Section 307 of the Code of Criminal Procedure in respect onlyof Jadub Das. He has accepted the verdict of acquittal as regards the other twoaccused.

2. Dwarika Das is the father of the deceased Jogeswar, andhe states that his son left his house at about two dandas of the evening of the1st January, and has never since been seen alive. He made many inquiriesregarding him during that night and the following day, but could learn nothinguntil, on the morning of the 3rd January, he was told by one Biswanath that hissons body was lying in a field. He went there and found his son dead; JadubDas, the prisoner, his mother and grandmother, who are both witnesses, beingpresent "lamenting." He also says that "Patiraj Chowkidar wentthere at that time," but this man has not been examined as a witness. Hethen went and gave information to the police station, distant about six miles,charging Jadub Das with the crime, and mentioning Biswanath and Mangal Das asbeing concerned in it. It may here be observed that nothing was then said ofthe presence of Jadub Das and the female witnesses when he first found thebody. The Police Sub-Inspector went on the following day, that is on theafternoon of the 4th, and then commenced his investigation.

3. Now the first thing naturally would be to proceed againstJadub Das, who was the person accused by Dwarik on the ground that he boreill-will towards the deceased. The Sub-Inspector states that Jadub was not athome, and that he was brought by a constable at about 4-30 in the afternoon.The constable, who is said to have arrested him, has not, however, beenexamined, and therefore there is nothing to show that Jadub Das was in any wayevading arrest. Having got Jadub Das before him, it would be expected that theSub-Inspector would arrest him; but he says that he did not do so. He wouldhave us believe that he considered that he had no sufficient ground forarresting him. That is indeed the reason mentioned, and accepted by the learnedSessions Judge in a part of his reference to us. On the contrary, theSub-Inspector proceeded to record a statement in writing of Jadub Dasprofessedly under Section 161 of the Code of Criminal Procedure, and thenimmediately afterwards he arrested him and sent him in to the Magistratewithout any delay. In that statement it may be mentioned that Jadub Das deniedall knowledge of the murder, and therefore there was nothing before theSub-Inspector, in addition to the accusation of Dwarik Das, which was alreadybefore him, to induce him to arrest Jadub Das. We think it was a very improperstep on the part of the Sub-Inspector to take any statement in writing fromJadub Das. He must have known that statement was being taken preliminary to hisarrest, and that it could be so taken only for the purpose of obtainingevidence. We observe that a similar course was also taken in regard to anotherman--Rai Charan Das. This will be presently referred to. Jadub Das wasaccordingly sent in to the Magistrate on the evening of the 4th. Now, withsuspicion on some foundation against Jadub Das, it would naturally follow thatthe police should make a further and close inquiry from the inmates of hishouse. The Sub-Inspector, however, would have us believe that he did not thinkit necessary to make any inquiry beyond a mere cursory inquiry, and that hedirected his inquiries elsewhere. He states, however, that he examined themother of Jadub Das on the evening of the 6th, and that the next morning sherepeated the same statement in the presence of about fifty people, thestatement then made being one incriminating her son Jadub Das and the two otherprisoners, Mangal and Rai Charan. Having this statement before him, theSub-Inspector did not attempt to expedite the completion of the investigation,or to arrest Mangal and Rai Charan. On the 10th January he sent in the motherof Jadub Das to be examined by the Magistrate under Section 164 of the Code ofCriminal Procedure, and the reason he gives for requesting this to be done wasthat she was the only eye-witness available, and it was very likely that shewould be gained over by the accused if she was not examined at once. TheSub-Divisional Magistrate accordingly recorded her statement as that of awitness, and in so doing, he added a note that statement was taken in thepresence of Jadub Das and three others who had an opportunity ofcross-examining the witnesses, but had not done so. In that statement, nodoubt, this woman describes that the murder was committed by the prisoners. Wethink it was never intended that Section 164. should be applied to such apurpose. It was not intended to enable the police to obtain an incriminatingstatement by some person, and as it were to put a seal on that statement bysending in that person to a Magistrate, practically under custody, to beexamined before the judicial inquiry or trial, and therefore compromised in hisevidence when judicial proceedings are regularly taken. We may also observethat the law does not require that in the case of a witness so examined thereshould be a certificate after proper inquiry that the statement has beenvoluntarily made, and the law also expressly protects a witness fromunnecessary restraint or inconvenience at the hands of the police. Here thiswoman was sent by the police, and therefore presumedly under some restraint,and there was consequently much risk that her statement would be given undersome pressure and not voluntarily. In this case we can find no reason why theSub-Inspector should not have sent up the entire case at that time. If he haddone so, this woman could have attended as any other witness. There was,moreover, no sufficient reason Why he should have hurriedly sent up this womanalone to be examined before the completion of the investigation.

4. We have already stated that a statement of a witness soobtained always raises a suspicion that it has not been voluntarily made. Herewe have the fact that, although it was repeated a few days later before theMagistrate, it was retracted at the Sessions trial, and an explanation, whichwas not prima facie unfounded or impossible, given to show that the statementhad been improperly obtained. With this before him, the Sessions Judge was, inour opinion, bound to make some inquiry. Instead of doing so he at onceproceeded under Section 288 of the Code of Criminal Procedure to bring on therecord as evidence at the Sessions trial the two statements made by thiswitness, and it may be added the Sessions Judge never made any inquiry at allinto this matter, although the same story was repeated by Jadub Das when heaccounted for the manner by which his confession had been obtained in theMagistrates Court.

5. The inquiry before the Magistrate commenced on the 14th,and first of all Dwarik Das was examined, then the Sub-Inspectors and then themother of the accused, Jadub Das, who had already made a statement on the 10th.Now if the statement that she made on the 10th was a part of the inquiry beforethe Magistrate and a commencement of it, it is impossible to conceive for whatuseful purpose the same statement should have been again recorded. The factthat the Magistrate in recording the first statement thought proper to certifythat it was made in the presence of Jadub Das and the other accused, and thatthey had an opportunity to cross-examine, but did not do so, would seem to showthat the Magistrate considered that he was making that examination as part of ajudicial inquiry. She then repeated almost in the same words what she hadalready said on the 10th. There was also the evidence of the grandmother ofJadub, and of his wife which, in some respects, corroborated the evidence givenby the mother. At the close of the evidence for the prosecution in theMagistrates Court when the accused were examined, Jadub Das proceeded to makea statement in the nature of a confession, and generally in the same terms asthe statement already given by his mother as a witness. At the Sessions trial,not only did these three women deny their previous statements, but Jadub Dasalso denied the confession that he had made. The Sessions Judge neverthelessproceeded to place OH the record, under Section 288 of the Code of CriminalProcedure, the evidence given by these three women before the CommittingMagistrate, as well as the statement of the mother previously recorded underSection 164 on the 10th.

6. In addition to these statements, there is the evidence ofa blind man, of which it is necessary only to say that in the Sessions Court hehas embellished his evidence given before the Magistrate very considerably, soas to make it press more severely on the accused. No doubt the Sessions Judge hasplaced on the record the previous statement made by this witness before theMagistrate; but even if we were to accept that statement as true in preferenceto his later deposition, we should still not regard it as of any valuewhatsoever in this case. The remaining evidence consists of the evidence of theSub-Inspector and the constable, and also of the medical witnesses. Theevidence of the Sub-Inspector is, we think, not at all material in this case,except in so far as it shows that he has not fairly conducted theinvestigation.

7. It has been already mentioned that the statement obtainedby the police from the mother of Jadub Das is said to have incriminated RaiCharan, but that instead of arresting Rai Charan, the Inspector examined him asa witness, reducing his statement to writing, and that he then arrested RaiCharan. We have already expressed our strong disapproval of this proceeding. Toall intents and purposes it was the obtaining by the police of a statement froman accused person and reducing it to writing, and this was done at a time whenthe police officer well knew that there was evidence before him on which he wasbound to arrest Rai Charan. The impropriety of such proceedings is aggravatedby the course taken by the Sessions Judge. He examined the Sub-Inspector inregard to that statement, and he thus admitted it as evidence on the trial.This statement cannot be regarded otherwise than as a confession made by RaiCharan to the Sub-Inspector. If it be so regarded, it was clearly inadmissibleunder Section 25 of the Evidence Act. If, on the other hand, it was to be usedas evidence against the other prisoners, it was manifestly inadmissible. It wastherefore very improper on the part of the Sessions Judge himself to introducethis statement so as to place it before the jury, and by so doing he must haveseriously prejudiced, not only Rai Charan, but the other prisoners who arementioned in that statement as taking a prominent part in the murder.

8. The Sessions Judge has, moreover, in this manner, actedin disregard of the statutory rule laid down in Section 162 of the Code ofCriminal Procedure, which declares that "no statement made to a policeofficer in the course of an investigation shall, if taken in writing, be usedas evidence." No doubt Rai Charan, it is said, was not under arrest whenhe made that statement; but there was ample information with the police onwhich he might and should have been arrested.

9. It is impossible to avoid believing that Rai Charan waspractically under arrest at that time, and that there has been an endeavourmade by the police, which has been successful, to get this statement admittedas evidence when it was clearly inadmissible.

10. Lastly, we have the medical evidence. The evidence ofthe medical officer who conducted the post-mortem is not very explicit asregards the actual cause of death, and we think it is to be regretted that,under such circumstances, the Sessions Judge should not have examined themedical witness himself at the Sessions trial. But taking the evidence of thisofficer as recorded by the Magistrate, the Sessions Judge proceeded to examinethe Civil Surgeon as an expert, and be did not examine this witness on thepoints which were in evidence on the statement of the officer who conducted thepost-mortem examination, but he took his statement on matters entered in thepost-mortem report. Now that report is not admissible as evidence except tocontradict the officer who made it. It may, however, be used by that officerwhen under examination for the purpose of refreshing his memory. We have noparticular fault to find with the summing up by the Sessions Judge. The juryunanimously returned a verdict of acquittal, and the reference, as has alreadybeen stated, is only in regard to Jadub Das. Now, in the first place, weobserve that in making this reference the Sessions Judge says: "Havingregard to the nature of the case, I am not surprised that the jury should havereturned the verdict they did;" and he adds apparently as a reason for hisrefusing to accept that verdict that the "decision in a case of this kindmust rest on an elaborate process of reasoning." But there was no apparentexcuse for the Sessions Judge not laying before the jury the same elaborateprocess of reasoning as he thought proper to lay before us in making thisreference to us, supposing, however--and we lay special stress on this--thatthe manner in which he has treated the case on this reference is legitimate andproper. We give the Judge full credit for being impressed with the guilt of theaccused and doing his best to place the case before us in a proper manner, buthaving done this, we must express our surprise at the terms in which he hasplaced his reference before us. It is not a document which should emanate fromany judicial officer. It is a piece of special pleading with the chief objectof exonerating the police from any suspicion in the proceedings.

11. The Sessions Judge does not rely on the evidence aspresented to the Jury, but he has throughout relied on the police proceedings,which could not have been placed before the jury. If he desired to show thatthe proceedings of the police were regular and above suspicion, he shouldobviously have obtained such evidence by examining police officers as witnessesso as to explain such proceedings. The objections which must be taken to theseproceedings were patent from the first. The Sessions Judge should thereforehave examined the Inspector at once on all these points, and he should alsohave required evidence regarding the custody of Jadub Das in the jail withspecial reference to the meeting which is said to have taken place between thefemale witnesses and the prisoner Jadub Das, and the inducement then said tohave been held out. The Sessions Judge has really asked us to consider anddetermine their case, not only as he himself admits on an elaborate process ofreasoning which he never laid before the jury, but on matters which were notadmissible in evidence, and were not therefore before the jury, and he has thenasked us to hold that the verdict of the jury is erroneous on grounds whichwere never laid before them for their consideration. Obviously, in a referenceunder Section 307, it is our duty to consider whether the verdict of the juryis erroneous or perverse on the case presented to them at the trial. Moreoverthe course adopted by the Sessions Judge would be most unfair to those undertrial, for they would not have had an opportunity of meeting and rebutting whatis now to be used against them. The Sessions Judge throughout seems to haveconsidered that the Inspector was not only attacked, but as if he were undertrial. It was rather the duty of the Sessions Judge to consider how far theevidence could be fairly used against those who were really under trial. He hasnot approached a consideration of the evidence by satisfying himself how farthe reasons given for discrediting the evidence in consequence of allegedirregularities or misconduct of the police have any substantial foundation, buthe has rather applied himself to exonerate the police. As an instance of this,we would mention that, when the mother of Jadub Das denied the statements thatshe had made to the Magistrate, and stated how they had been improperlyobtained by the police, the Sessions Judge, without any inquiry as to the truthof this allegation, forthwith brought on the record, under Section 288 of theCode of Criminal Procedure, those statements to be treated as evidence at thetrial as if this accusation had no foundation; and it may be added that it ison this statement that the conviction of Jadub Das, which the Sessions Judgerecommends, must principally depend. The Sessions Judge has referred to, andrelied on, police diaries. Now the police diaries never could be placed before thejury. They are only useful as is pointed out by the Code of Criminal Procedure,Section 172, not as evidence, but to aid a Court on the trial, so as to enableit to make a thorough inquiry on all material points by eliciting in theexamination of the witnesses--and especially of police witnesses the real factsof the case. We are surprised to find that the Sessions Judge has not seen anyimpropriety on the part of the Sub-Inspector in examining Jadub Das and RaiCharan, in recording their statements immediately before their arrest at a timewhen the Sub-Inspector must have known that he was about to arrest them. Wecannot, therefore, agree with the Sessions Judge that in this respect theSub-Inspectors conduct of the investigation appears to have been perfectlyproper and straightforward without affording any ground for even a suggestionto the contrary.

12. Then, again, when we come to the proceedings in respectto the mother of Jadub Das, we find that the Sessions Judge thinks that theywere not at all open to comment. It seems to us, however, that there areserious reasons for disapproving of them. Here we have a statement said to havebeen made on the 6th, and it is followed by a delay in completing theinvestigation, which is not explained, and which is also prima facieunaccountable. This was followed up by the Sub-Inspector sending in this womanto have her examined on the 10th by the Magistrate under Section 164 of theCode of Criminal Procedure. The Sessions Judge apparently overlooked this delay,and we can find no explanation why this woman, who is said to have first madethis statement to the police on the 6th and to have repeated it to thevillagers on the 7th, should have been kept until the 10th, if it was necessaryto have her statement taken by the Magistrate. The case was really completedwhen the statement had been obtained from the mother of Jadub Das and the twoother women of the house, and there was really no reason at all why thereshould have been any delay in concluding the investigation and sending in thefinal report with all the evidence obtainable. We are consequently quite unableto take the view expressed by the Sessions Judge of the conduct of the policein this investigation.

13. It remains, however, to consider the order which, on theevidence before us, we should make on this reference and on the evidence at theSessions trial.

14. The sole fact upon which we can rely is that Jogeswarsbody was found in a state from which the medical evidence shows it may beconcluded that death was caused by violent means about 36 hours before thediscovery of the body. The other evidence that there is on the record is theevidence of the three women recorded by the Committing Magistrate and denied bythem in the Court of Sessions, but placed on the record by the Sessions Judgeand laid before the jury under Section 288 of the Code of Criminal Procedure.Now the manner in which such evidence should be treated has long ago beensettled by the decisions of this Court;, and it has been laid down that, unlessthere is something to show the truth of the former statement, it should not bepreferred to the statement made subsequently in the Sessions Court, that is tosay, that there should be something to corroborate such a statement on somematerial point. The case of Queen v. Amanulla (1874) 12 B.L.R., A, 15: 21 W.B.49, is the leading case on this subject. What reason, it may be asked, is thereto suppose that the statements made before the Magistrate by these witnesseswere true The only corroboration that there is afforded by the statement madeby Jadub Das at the conclusion of the record of the evidence for theprosecution by the Magistrate, and that statement is in the nature of aconfessional statement. But that statement was also repudiated in the SessionsCourt, and it has been frequently held by this Court that it is not safe torely upon a statement so made, unless it is corroborated by some evidence so asto show that it is true. Now, what evidence is there that it is true There arethe statements of these witnesses, but the statements of these witnesses shouldnot be accepted without some corroboration. Here then we have two sets ofevidence, neither of which can alone be accepted without corroboration, andwhich cannot therefore each in turn be taken to corroborate the other.Reference may be made to the judgment of Kernan, J., in Queen-Empress v. RangiI.L.R (1886) 10 Mad 295, and Queen-Empress v. Bharmuppa I.L.R(1888) 12 Mad.,123. The last case especially expresses the opinion that we entertain, thatevidence brought in under Section 288 cannot be accepted as propercorroboration of a confession made to a Magistrate and retracted at theSessions trial. There is, moreover, an additional reason for refusing to act onsuch evidence, for there is very good ground for supposing that the confessionof Jadub Das made before the Magistrate on the 14th January was not fairlyobtained, and that it therefore was not a voluntary statement. In the SessionsCourt the mother states that she and other female relatives of Jadub Das were,during the proceedings before the Magistrate, brought into his presence. JadubDas makes a similar statement. There has been no attempt made to contradictthis. With what object this was done it is not difficult to understand. It musthave been for the express purpose of inducing Jadub Das to confess, and that iswhat both Jadub Das and his mother state happened, with the result that themother repeated her previous statement, and Jadub Das made a similar statementas the best course suggested to them of obtaining a result most favourable tohim. No doubt there is no evidence to show this; but the evidence of the womanis uncontradicted. However that may be, as has been already pointed out, wethink it would not be safe to convict the accused Jadub Das of the evidence ofthe confession standing by itself, or on the evidence of three witnessesstanding alone, and we do not think that these two sets of evidence can bejoined together and held as mutually corroborating each other, so as to justifyour acting on such evidence.

15. It may be that there are some reasons for suspectingthat Jadub Das has committed this murder, but we can certainly not convict himon the evidence before us, for we cannot rely with any confidence on any partof it.

16. In conclusion, it is only necessary to bring to thenotice of the Sessions Judge that he has entirely misconceived his duty in thisreference under Section 307 of the Code of Criminal Procedure. He seems tothink that he was placed in a different position from the jury, or from thatwhich he himself occupied during the trial. He says that in a case of this kind"the verdict of the jury does not stand on the same footing as in a casewhere they are called upon to decide on evidence given before them. In thiscase the Court has to act more as an Appellate Court, the evidence having beenpractically entirely given in another Court." We cannot at all concur inthis observation. The Judge should recollect that in a trial held by him, he isexactly in the same position as the jury in dealing with the evidence properlygiven before him, and that he is bound to confine his attention solely to thatevidence. That is the rule which should invariably guide him in making areference to this Court under Section 307 of the Code of Criminal Procedure.The result that we come to, therefore, is that, in our opinion, Jadub Dasshould be acquitted, and we accordingly direct his release.

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Queen-Empress vs.Jadub Das (20.06.1899 - CALHC)