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Petitioner: RAM CHANDRA VS Respondent: STATE OF UTTAR PARDESH
P L D 1957 Supreme Court (India) 331
P L D 1957 Supreme Court (India) 331
Present: B. Jagannadhadas, Syed Jafer Imam and
P. Govinda Menon, JJ
RAM CHANDRA AND ANOTHER‑Appellants
Versus
STATE OF UTTAR PARDESH‑Respondent
Criminal Appeals Nos. 133 and 134 of 1956, decided on 26th November 1956.
(a) Penal Code (XLV of 1860)-----
-----Ss. 300 & 302‑Murder Corpus delicti not traceable‑Retracted confession sole proof of murder‑Conviction based on such confession, when justified‑Description of manner in which murder committed, improbable‑ benefit of doubt should be given to accused‑Evidence Act (F of 1872), Ss. 24, 3 & 5‑Criminal Procedure Code (V of 1898), Ss. 367 & 164.
In law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable. Normally, it would not be quite safe, as a matter of prudence if not of law, to base a conviction for murder on the confession of the alleged murderer, by itself and without more. It would be extremely unsafe to do so, particular, when the confession is open to a good deal of criticism and when the story of murder as given in the confession is somewhat hard to believe.
In a case where there is other clear and reliable evidence of murder the probability or improbability of the manner in which the murder was committed might be of no serious consequence. But where the proof of the factum of the murder is itself solely dependent upon the confession, the apparent improbability of the manner in which the murder is said to have been brought about in the confession would be a cogent circumstance against the confession being relied upon. If the Court is not satisfied that the murder if any had been committed at the time and the place and the manner indicated in the confession, then the accused is entitled to benefit of doubt in respect of the offence of murder,
(b) Evidence Act (I of 1872)------
----S. 45‑Expert evidence‑ Value of.
Normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. But the opinion of the expert may safely be relied upon if there are in addition various other items of external and internal evidence in support of it.
(c) Evidence Act (I of 1872)-----
----S. 24‑Accused charged under Ss. 302, 364 and 386, Penal Code (XLV of 1860) Confession relating to offence under S. 302 not relied‑Value of confession in regard to other offences.
Where a person is charged with offences under sections 302, 364 and 386 of the Penal Code and the Court has considered it unsafe to act upon the confession as basis for the conviction in respect of murder, there is no reason why the confession in so far as it relates to the two offences of kidnapping and extortion should not be taken into consideration as against the accused to lend assurance to conclusion reached against him, in so far as these offences are concerned, based on circumstantial evidence.
(d) Penal Code (XLV of 1860)------
-----Ss. 364 & 386 Ransom demanded from father by putting him in fright of his kidnapped son being murdered‑Makes offences under the sections of an aggravated form.
Where the modus operandi disclosed in the letters written by the accused demanding ransom from the father of the boy kidnapped was by putting the father in fright of his kidnapped boy being murdered and there was throughout the likelihood of the boy being murdered in case the ransom money was not paid for one reason or other, the accused are guilty of the aggravated forms of kidnapping and extortion under sections 364 and 386 of the Penal Code.
(e) Penal Code (XLV of 1860)‑--
----Two accused acting in concert‑Offences committed in pursuance of common intention and common conspiracy‑Conviction and sentence‑Concurrent finding by lower Court‑Not open to challenge in appeal Constitution of India, Art. 136 (Constitution of Pakistan, Art. 160).
Where the two accused acted in concert by virtue of a common intention and of a criminal conspiracy, their entire activities cannot, in the very nature of things, be brought out in evidence. Thus on the same circumstantial evidence if it is found that the offences under sections 364 and 386 of the Penal Code, were actually committed in pursuance of the conspiracy or in pursuance of the common intention, one accused would be equally guilty with the other of the two substantive offences and would be liable to the same sentence and so it is not possible to make any distinction between them even as regards the sentence.
J. N. Banerjee, Senior Advocate, (P. C. Agarwala, Advocate, with him) for Appellant (in Criminal Appeal No. 133 of 1956).
G. C. Mathur Advocate for Appellant (in Criminal Appeal 134 of 1956).
S. P. Sinha, Senior Advocate, (C. P. Lal, Advocate with him) for Respondent (in both the Appeals).
JUDGMENT
JAGANNADHADAS, J.‑‑----These are two appeals by special leave against the judgment of the High Court of Allahabad confirming that of the Sessions Judge of Allahabad. Both the appellants were convicted and sentenced for having com mitted various offences inclusive of the offence under section 302 of the Indian P. C. and sentence of death therefore against each. At the trial there were five other co‑accused charged in respect of the same offences but they were all acquitted. The victim of the offences was a boy named Om Prakash aged about 14 years. He is the son of one Chauhan, a civil gazetted officer in Ordnance Depot. Chheoki, Allahabad drawing a pay of about Rs. 600 per month and believed to be rich. The case against both the appellants is that they, along with the five others who have been acquitted, conspired to extort a sum of, Rs. 10,000 from Chauhan by kidnapping and murdering his son, Om Prakash. The appellant, Ram Chandra, is a person about 35 years in age, who has received education up to Matriculation standard and was working at the time as a clerk in the Accountant General s Office, U. P. He is said to have been a native of Kohat now part of West Pakistan. Appellant, Ram Bharosey, is a person, about 49 years in age and was a clerk in the Municipal Office at Allahabad. Both of them were living in the same street in Allahabad as Chauhan. It is in evidence and not disputed, that the boy, Om Prakash, was in the habit of going to appellant, Ram Chandra's house now and then and mixing with the members of that family, including Ram Chandra. It is also beyond dispute that the boy, Om Prakash, left his house about noon on the 9th June 1952, and is missing since then. In spite of strenuous efforts to trace him he has not so far been found. The prosecution case is that in pursuance of a conspiracy between the two appellants and the acquitted accused, the boy was taken by the two appellants and one Satya Prakash, to the river Jumna on the evening of the 9th June 1952, and that the two appellants took him into river pretending to teach him swimming and drawned him there forcibly and also stabbed him with a knife. Having thus brought about his death and disappearance on the evening of the 9th June 1952, they sent a series of threatening letters purporting to be from one Zalim Daku on various dates commencing from June 10, up to July 4, 1952 and pretending that the boy was in his possession and that if a sum of Rs. 10,000 is paid he will be restored or otherwise he will be beheaded. During this period they were constantly moving with Chauhan posing themselves as his friends to help him in tracing the boy but in fact misleading him from the right track and persuad ing him to agree to pay up the amount in order that he may be able to recover the boy. Chauhan ultimately agreed to pay Rs. 5,000 and in fact arranged to pay up the same in the manner which the letter from Zalim Daku indicated. The letters also undertook that the boy will be restored the next day `after the payment. But ultimately the boy was not restored though the money was taken away. During this period the police were also on the track. Chauhan lodged a complaint to the police about the disappearance of the boy on June 10, 1952, the very next day, Chauhan was also keeping the police in touch with all the stages and was. handing over to them then and there every letter that he was receiving from Zalim Daku. When he paid the ransom on July 4, he took the step of previously producing before the Additional District Magistrate the currency notes of Rs. 5,000 and getting their numbers noted by him. The police traced the possession of some out of these notes to the appellants. A substantial number of these notes were recovered from the appellant, Ram Chandra, and one note was traced to the appellant. Ram Bharosey, Investigation showed that all the letters received by Chauhan purporting to have been sent by Zalim Daku were in the handwriting of the appellant Ram Chandra, according to the opinion of the hand‑writing expert. No trace, however, of the boy could be found. Not only was the dead body not found but absolutely no other material has been discovered which would indicate either the factum of murder or the perpetrator thereof. Both the appellants were arrested on July 6, 1952. Appellant Ram Chandra made a confession before a Magis trate on October 10. The appellants were thereafter tried and convicted in respect of charges under section 120‑B, sections 302, 201, 364 and 386 read with section 120‑B or in the alternative with section 34 of the I. P. C. They were sentenced as follows, to death under section 302 I. P. C., to transportation for life under section 364, I. P. C., to ten years' R. I. under section 368, I. P. C. and to seven years' R. I. under section 201, I. P. C. No separate sentence was awarded in respect of the offences under section 120‑B These convictions and sentences were confirmed and upheld by the High Court on appeal, and hence this appeal by both the appellants.
For a proper appreciation of the case, it is necessary to set out briefly the contents of the various letters admittedly received by Chauhan by post and purporting to be from Zalim Daku. Altogether seven letters were received. Exhs. P. 2 to P‑8. The first of these letters purports to have been sent by post on June 10, 1952, and is as follows:
"Lala Kishan Das Ji.
Your son Om Prakash reached me through the cleverness of my disciples and by the time this letter reaches you, he will be several hundred miles away from here. For this reason if you want to see your son safe and sound, you should send a sum of Rs. 10,000 to any place, where we may ask you to do so. You should bear it in mind that if you inform the police, etc., your son will be beheaded and his head will be sent to you. My men are following you constantly and I am regularly getting information regarding every minute. 1f you agree to pay the sum of Rs. 10,000 you should put a mark on the wall in front of your `kothi.' Put the mark resembling such two lines. If you do not agree (to pay the amount) put a mark like X. In case the money is not given, the head of your son will be cut off and you would receive the same within 15 days. When I see the mark like this=a letter will be sent to you again wherein the name of the place and the names of the persons will be mentioned. You will have to come with those men and hand over the money at that particular place. Let me remind you that if you inform the police it will be harmful to you. In that case the head of your son will be cut off and will be sent to you. You should particularly bear this thing in mind.
(Sd.) Zalim Daku."
The next letter is dated June 17, and informs Chauhan about the futility of running after the police to help him to trace his son and tells him that the writer will give him only three chances, this letter being the second chance and the third chance to be given by a letter to be written after the 20th. It asks him to make up his mind quickly whether he will part with his money or will have the head of his son. He instructs him to place quickly on the wall in front of his house the mark indicated in his letter so as to convey his consent to pay the ransom. It also assures him that the writer has no personal grudge against him and that his boy will not be put to any trouble but that he must unfailingly get the ransom of Rs. 10,000. The letter contains a number of other details indicating knowledge of the writer about the movements of Chauhan and his contracts with the police and the movements of various other persons along with Chauhan including the two appellants. The third and fourth‑letters dated June 22 and 23, were received on the same day enclosed in one cover. The third letter dated June 22, informed him, that in spite of his writing to him that his son is with him he is trying to approach the police and that the police cannot trace his son, that this son is sad and deteriorat ing in health, that he has written to him for the last time and that he cannot delay the matter for more than a week at the most and that in case his terms are not acceptable he will not hesitate to put an end to the life of the boy and that he should paste a paper on the outside of his door containing the mark of two lines and that all this must be done by the evening of the 24th. The fourth letter dated the 23rd purports to offer a concession and undertakes to accept Rs. 7,000 as the ransom instead of the original demand of Rs. 10,000 and ask that the mark on the wall should be placed by the 24th and promises thereafter to send a letter on the 25th indicating the place, time and date where the money is to be kept for the writer to get it. It is in evidence that after the receipt of these letters a poster was pasted at the instance of Chauhan on the 25th‑26th June in front of his gate compound wall with the words "I can pay Rs. 3,000 up to 1st July" and along with it the mark indicated in the previous letters was put. Thereupon another letter dated the 28th June was received which intimated that the mark put by him has been seen, but that nothing less than Rs. 5,000 would be received and giving detailed instructions as to where the money should be kept and who all are to accompany for his assistance. It is to be noted that the two appellants are to be amongst those who, according to the water of that letter, are insisted upon for accompanying Chauhan when he goes to deposit the money at the appointed place and at the appointed time. A sketch also was attached to the letter indicating the place where the money in a bag was to be kept. The place indicated is a small culvert after passing over the railway bridge on the river Jurnna. This letter was accompanied by another letter dated the 1st July reiterating that he cannot take anything less than Rs. 5,000 and reiterating also the instructions given in the previous letter as to the place where the money is to be kept, the persons who are to accompany, and other details and precautions. This was followed by another letter dated 3rd July 1952, containing some further instructions. It is in evidence that in pursuance of the various instructions, Chauhan with his party, including the two appellants, went to the spot, i.e., the culvert near the Jumna railway bridge and placed there the sum of Rs. 5,000 in a bag. But before doing so he got the numbers of the actual currency notes which he was about to give to the persons purporting to be Zalim Daku, noted by the Additional District Magistrate on the 3rd and 4th July. After having deposited the amount, these persons in two batches were waiting at each end of the Jumna railway bridge. It was found that the money was lifted away by some unknown person at about 8‑30 p.m. and that in its place a letter dated the 4th July was placed This letter indicated that Chauhan should go to the (Allahabad) Junction railway station "tomorrow" (i.e., 5th July) at 3 O'clock and take his son away. There was no indication whether this meant 3 p.m. or 3 a.m. Chauhan went to the Junction railway station at 3 p.m. and did not find his son. He waited on till 3 a.m. The two appellants came there at about 12 in the night ostensibly to keep company with him. The police came on the spot and arrested both the appellants at the station and recovered one ten rupee note from a betel shop keeper close by who stated, at the time, that the appellant Ram Bharosey gave that to him for the purchase of betel leaves. That currency note was subsequently found to be one of the notes whose numbers had been noted. Thus both these appellants were arrested on the early morning of the 6th July. On a search of appellant Ram Chandra's house, a sum of Rs. 115 was recovered out of which eleven ten rupee notes tallied with the noted numbers. On the 7th July the police officer interrogated both the appellants. Following that interrogation, Ram Chandra with the police proceeded to his house. He went into a room therein and dug the ground and brought out two bundles containing currency notes of ten ruppee denomination. The notes totalled a sum of Rs. 4,650 and the numbers thereof tallied with the noted numbers. It may be mentioned that on the 7th July Chauhan received another letter purporting to be from Zalim Daku bearing date 5th July. This letter informs about the receipt of tote ransom and intimates Chahan that he need not be anxious about the boy, that he should not search for him in vain and that he can shortly meet his son and be satisfied. The appellants were arrested before receipt of this letter.
As already stated previously, the various letters with the addresses on the envelopes relating thereto purporting to have been written from Zalim Daku have been found by the hand writing expert to be the writing of the appellant Ram Chandra. In addition to this opinion there were certain items of internal and external evidence which confirmed this opinion. For instance the letters contain information about the movements of Chauhan most of which, on the evidence, were known only to the two appellants. The evidence disclosed also conduct of the appellants which disclosed advance information of the contents of the letters to be received. There was found in the letters the fairly constant use of the word Baqi, which is found to be the characteristic of the appellant Ram Chandra's undisputed letters. There was the fact of his ability to supply certain obvious omissions in the letters such as Nahi when he was asked to read them in the normal course, on the ground of illegibility. These and other features enabled the Courts below to find to their satisfaction that all these letters were written by the appellant Ram Chandra. On the basis of the above material the main facts relating to the case, found concurrently by both the Courts below are that (1) a sub stantial portion of the currency notes, whose numbers had been noted and which formed the ransom were found in the possession of the appellant Ram Chandra, (2) one of such notes has been traced to the possession of the appellant Ram Bharosey, who, on the evidence, gave it to the betel shop keeper at the Allahabad Junction railway station for purchasing betel‑leaves, and (3) all the ransom letters were in the hand‑writing of the appellant Ram Chandra. The further important evidence in the case was that relating to the confession made by the appellant Ram Chandra while he was in jail custody. Now, as judgments show, the conviction in respect of the offences charged against both these appellants is based mainly on this confession corroborated by the above facts. The first question, therefore, that arises is how far reliance on the confession for the conviction and sentence relating to the various offences was safe on the facts and circumstances of this case. To appreciate the position thus arising, it is necessary to set out the confession and the attendant circumstances.
The confession of the appellant Ram Chandra, which was recorded on 10th October 1952, is as follows:
"The schemes for kidnapping Om Prakash and for getting money had been prepared between Ram Bharosey and myself several days before the boy was kidnapped and we were in quest of an opportunity. On Sunday the 8th June 1952. Om Prakash, Satya Prakash and I started from the house. Ram Bharosey had left for the direction of the temple of Someshwar Mahadeo, before us. After that all the three of us went to Ram Bharosey near the temple after passing over the Yamuna Bridge, behind Arail and along the canal. After that all the four of us went to the bank of the Yamuna on the pretext of bathing Our purpose was to kill Om Prakash, but we did not get an opportunity there. For this reason after bathing in the river we went for some distance ahead along the bank of the river down the stream. Some men were present there also, We returned afterwards as we did not get an opportunity on that day. Ram Bharosey again reached home before us. We reached home afterwards on foot Ram Bharosey came on a bicycle. Om Prakash was scolded by his mother for his coming late to his house. He then came to my house and took me with him. I told his mother that he had gone out with me. On the same night Ram Bharosey and I prepared a scheme for the next day, that is, for the 9th of June, that Om Prakash should be taken to the bank of the Yamuna, further ahead of Dariyabad, and should be killed. We wanted to do so in order to facilitate our getting money.
On the same day, i.e., the 8th of June, it was explained to Satya Prakash that he should bring Om Prakash near Dariyabad through Atarsuiya at about 2 O'clock the next day. Ram Bharosey said that he would meet me at the crossing of Katghar at 3 O'clock. According to this programme Satya Prakash started from home with Om Prakash at about 2 O'clock on the 9th of June, and I reached the crossing of Katghar at about 3 O'clock passing by the Christian College. Ram Bharosey also reached there by a rickshaw shortly after I reached there. He left the rickshaw there. From there both of us reached a little ahead of Dariyabad after passing through Dariyabad. Both of us began to search for a safe place there. After seeing the place both of us began to wait for Satya Prakash and Om Prakash, on the road side. Both of them reached there at about 4‑30 p.m. From there we took Satya Prakash and Om Prakash to the place which we had seen. All the four of us began to have a bath there.
After that we made Satya Prakash to sit on the bank of the river to keep a watch. Ram Bharosey and I A began to teach swimming to Om Prakash, His knee part of the body was towards me and the rest was towards Ram Bharosey. In the course of teaching him swimming Ram Bharosey and I drowned him in the water. I caught hold of his feet so that he might not move them and Ram Bharosey put his feet on his neck and pressed it. He continued making movements for some time in the water. It might have taken 5 or 7 minutes. Thereafter his movements stopped. After that he was taken towards the bank and then Ram Bharosey struck him with a knife on his rips towards the right side.
He dealt another blow on his stomach. He dealt the third blow also on the stomach. On this occasion the blade of the knife was left in tile stomach and the handle remained in his hand. After that the clothes of Om Prakash were tied on him. He was taken a little ahead in the water and was pushed ahead there. His shoes were filled in with wet earth and were thrown into the water. The handle of the knife was also thrown in the water. Thereafter Satya Prakash returned home through the way of Dariyabad and Ram Bharosey and I reached the Chowk, via Atarsuiya. Afterwards Ram Bharosey went to the Civil Lines and I returned home. On the next day, that is, on the 10th of June the scheme of writing the letters for extorting money was prepared. I wrote the letter after coming to office. I dropped it in the letter box after showing it to Ram Bharosey. Many such letters were sent in the same way. On the day on which the money was kept on the bridge in front of the Agriculture College (?) picked up the money and put a letter in the bag which I had written before. Thereafter all of us, i.e., K. D. Chauhan. Diwan Chand, Durga Das, Ram Bharosey and I myself returned from there and reached the house. Shri K. D. Chauhan, Ram Bharosey and I stood up from there and went to our houses. After the money was taken out it was put into the box of Ram Bharosey. On the following day, i.e., on the 5th of July, that is, the day on which the boy was to be received, Ram Bharosey and I went to the railway station. K. D. Chauhan and Durga Das also reached the station. .When in spite of waiting for the boy till night he could not be found, Ram Bharosey and I went home at about 10 O'clock on the pretext of taking our food: Ram Bbarosey had some suspicion at the railway station on account of some talks between K. C. Chauhan and Durga Das to the effect that they were suspecting Ram Bharosey. For…
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