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The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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The facts which we find to have been established are the following —
at about 11 A. M. the respondent, while sitting at another person's house,
saw Ram Devi, a little girl aged about 9 years, who had been brought
up with her grand-children, at or near her house. Some time after noon
one of her grand-children told her that Piran Ditta, her son, had said
there was a snake in her house. The respondent went to her house, at
the door found Piran Ditta, aged about 19 years, much agitated, asked
him what was the matter and was told that he had killed Ram Devi whose
body was in the inner room. Ram Devi's mother then came up and asked
the respondent whether Ram Devi had been to the house. The respond-
ent said that Ram Devi had not been there and the child's mother went
on. The respondent then locked the outer door of the house, which con-
tains two rooms. The respondent then wandered about, pretending to
look for Ram Devi. At about 8 P. m., in obedience to orders from the
police, she unlocked the door of her house and produced the key of a box
in which a blood-stained sheet belonging to Ram Devi, whose body was
found in the inner room, was found. The respondent, who admitted
most of the facts above stated, was silent as to how and by whom the
sheet was placed in the box, suggesting to the Sessions Judge that the
murderer had placed it there, and denying that the box was locked and
that she produced the key.

Even if it be held that the respondent locked the box after removing
the sheet from the body and placing it in the box, she did not, in our
opinion, cause evidence of the murder to disappear. The presence of the
sheet on the body did not constitute evidence that murder had been com-
mitted, it was in itself no evidence of the murder and its concealment did
not cause evidence of the murder to disappear.

The same must be said of locking the door of the house. The body
was in the house, in an inner room, and was covered with cotton stalks.
The act of locking ihd door merely prevented access to the interior of the
house and did not amount to moving the body or concealing it from sight.
The body remained where it lay and could be seen by any one who obtained



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188 The Criminal Law Journal Reports. [Vol. IDT

SAT NARAIN TEWARI V. EMPEROR.

access to the house. The respondent opened the house when told to
do so and she did not, in our opinion, cause evidence of the murder to
disappear when she locked the door, by locking the padlock on the staple
on which the door chain was. The most that can be said is that she
delayed, by the time necessary for unlocking or otherwise opening the
door, the discovery of such evidojice. Causing such delay differs very
widely from causing disappearance. The body, as evidence of the murder,
remained where it was and was apparent after the door was locked to the
extent to which it was when the chain of the door was merely on the
staple, as it was when the respondent left her house before the murder.

The next question for consideration is whether the respondent gave
information respecting the murder, which she knew to be false, with the
intention of screening the murderer.

The statement that a person did not go to a house in which he was
murdered is, in our opinion, information about a murder, the fact of the
going being relevant in a trial for murder, and information about an
offence is not limited to information that a particular person did, or did
not, commit an offence, but includes information as to any fact relevant
at a trial in respect of the offence. We are not, however, satisfied that
the respondent gave this false information with the intention of screening
the murderer. She is a feeble looking woman about 55 years of age, of
the bhisti class, and, on hearing that the body of a girl, who was described
as her foster child, was lying in her house, and that her son had murdered
the child, may well have thought that she would herself be implicated.
Under these circumstances the denial that the girl had been to her house
was, in our opinion, quite as probably prompted by a desire to gain time
for devising some means of escaping the consequences of her son's act
as by a desire to screen her son.

It cannot, in our ojunion, be held that the intention of the respondent
was to screen the murderer. For these reasons we dismiss the appeal.

Appeal dUmissed.

(10 C. W. X, 51 ; L L. /?., 32 CaL, 1085).

IN THE HIGH COURT OF JUDK^ATURE AT CALCUTTA.

July 20 [C^RIMINAL REVISION No. 644 of 1905.] 1905.

Present ;— Mr. Justice Rampini and Mr. Justice Mookerjee.

SAT NARAIN TEWARI,— Petitioner,

Versus

EMPEROR,— Opposite Party.

Crimbml Procedure Code (Act V of 1898), ,^. 164,202, 222, mh-section (2), 234,364-^
Jm^^ of charge, of emhezzlcment-Adnus^ihrnty of ^aten^^^^ ^,^

9^164 or 8, 364, hut recorded in enQuirtf under s. 202,



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Vol. Ill}, The Criminal Law Journal Reports. 139

BAT NARAIN TEWARI r. EMPEROR.

Oiie S. K. was put upon his trial for embezzlement of three sums on two clays in one year.
Only pne charge was tlrawn up, in which all the three sums and the persons from whom they
hatl been collected were specifietl. He was not charged with three offences but only
with otic offence under s. 409, 1. P. C, and the conviction also was for one offence :

Ileld — That the charge was valid, as it was in accordance with sections 234 and 222 sub-
section.(2), Cr. P. C.

A statement of the person complained against reconled during an enquiry under s. 202 of
tjie Cr. P. Code, cannot be regardetl as liaving been recordeil under section 164 or 364, and as
such cannot be admitted in evidence as proving itself against him.

Xo opinion was expresse<l as to whether such a statement could be prove*! in aiiy way as an
admission.

Babu Dasaratld Sanyal for the Petitioner.

Mr. Douglas White for the Crown.

The Judgments of the Court were as follows : —

This is a rule, calling upon the District Magistrate of Gya to show
6ause'why the coniaction of and sentence passed upon the applicant should
Bot be set aside, upon the ground that the charge is contrary to law ; why
the case should not be retried, and why, in the retrial, the statement made
i)y ihe applicant to the Sub-divisional Officer of Jahanabad in the enquiry
Tinder sec. 202, C. Cr. P., should not be excluded.

The facts of the case are these. The applicant. Sat Narain Tewari,
•was tried for certain offences, under sec. 409, I. P. ('. He was the
Sarpanch of the village, that is, the collecting meml)er of the 2>itnchaf/et
and he is alleged in that capacity to have collected three sums of money
in 1904, namely. Re. 1-11 on the 5th August, Rs. 5 on the same date, and
Re. 1-3 on the 20th May. These sums were collected from three persons^
Rameswar Misra, Mohesh Lai and Harkhu Singh as Chowkidari tax.
Subsequently the applicant was removed from his post of collecting mem-
ber and was succeeded by Raghunandan Pershad. Raghunandan Pershad
appeared before the Magistrate and gave information that the collections
of his predecessor. Sat Narain Tewari, were short ; and there is no doubt
that this was the case. That being so. Sat Narain was upon his trial for
embezzlement of these three sums ; and one charge was drawn up, in
which all the 3 sums and the persons from whom he collected them were
specified. But he was not charged with three offences under sec. 409,
I. P. C, but with one offence under sec. 409 ; and he was convicted of
one offence and sentenced to one term of imprisonment.

Now, the first ground upon which the rule was granted is that the
charge was illegal, and that the applicant could not be tried on such a
cliarge.

It is unnecessary to discuss this point at length, because we think the
charge was in accordance with sees. 234 and 222, sub-section (2), C. (^r.



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140 The Criminal Law Journal Reports. [Vol. Ill

SAT NARAIN TEWARI i\ EMPEROR.

P., and this has been held in the cases of Emjteror v. Gulzari Lai (1),
Saminuldin Sarhar v. Sibaran Chandra Ghose (2) and The Emperor v.
Jshliaf Ahmed (3). That being so, we do not think that the charge in
this case comes within the purview of the ruling of the Privy Council in
the case of Suhramania Tyer v. The King-Emperor (4). Accordingly, the
first ground on which the rule was granted fails.

But there is another grqund, namely, that the admission, or confes-
sion, of the applicant, made before the Deputy Magistrate of Jahanabad
on the 19th December 1904, is inadmissible in evidence. It has been re-
corded under sec. 1(54, C. Cr. P. ; and it is contended that the Deputy
Magistrate had no authority to record the confession under sec. 164,
because the case of the applicant was not then under enquiry before the
Police. Sec. 1G4 occurs in the chapter of the Criminal Procedure Code
relating to information to the Police and their powers of investigating.
Furthermore, it is contended that it is not a statement recorded under
sec. 3G4, C. Cr. P. That, of coure, is obvious, because the applicant was
not then being tried for an offence. It is urged that it was a statement
made in the course of the enquiry which the Deputy Magistrate was carry-
ing on under sec. 202, C. Cr. P. This would seem to be correct, and that
being so, the Criminal Procedure Code does not contemplate a statement
on the examination of the Petitioner being recorded in such proceeding.
We therefore think that the statement of the applicant in this case which
has been admitted as proving itself, is not admissible as such in evidence,
and we are unable to say whether the evidence, other than this so-called
confession, is sufficient for conviction.

We accordingly sot aside the conviction and sentence, and direct thai
the applicant be retried.

Whether, in the course of the new trial, the admission made by Sat
Narain Tewari, when it is obvious he was not in the position of an accused
person, can be proved in any way, is a question upon which we do not
express any opinion. But we think that when the new trial takes place,
the statement which the applicant made to the Deputy Magistrate, and
which purports to be recorded under sec. 1G4, C. Cr. P., cannot be admitted
in evidence as proving itself.

The rule is made absolute on this ground. The case will go back for
retrial. But we consider that it should be retried by some Magistrate
other than the Magistrate by whom it has already been tried.

Rule made absolute.

(1) 1. L. R. 24 AU. 254 (1902). (2) 8 C. W. N. 807 ; s. c. I. L. R. 31 Cal. 928 (1904).
(3) 1. L. R. 27 AU. 69 (1904). (4) 5 C. W. N. 8G6 ; S. c. I. L. R. 25 Macl 61 (1901).



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V<rf. Ill] The Criminal Law Journal Reports. 141

GUL MAHOMED SIRCAR V. CHEHARU MANDAL.

(10 C. W. .v., 53.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

June 22 [CRIMINAL REVISION No. 410 of 1905.] 1905.

Present : — Mr. Justice Pargiter and Mr. Justice Woodroffe.

GUL MAHOMED SIRCAR,— Petitioner,

Versus
CHEHARU MANDAL,— Opposite Party.

Criminal Ptvcedure Code (Act V of J.89S), s. 2S3^Misjoinder of charges^Diittiiict
offences forming part of the same transaction.

There shaU be a separate charge for every distinct offence, even though it forms part of
the same transaction. The joinder in one charge of two such offences vitiates the triaL
The facts briefly are :
On the 20th of January 1905, one Cheharu Mandal filed a petition of complaint before the
Deputy Magistrate of Dinajpur against the Petitioner Gul Mahometl Sircar and two others
alleging that on the 15th of January 1905, the accused assaulted him and extorted from him
a bond or muckalika for Rs. 25 and that on the 16th he paid to the Petitioner the amount
named in the said bond.

The learned Deputy Magistrate to whom the case was made over for
disposal charged the Petitioner as follows : —
Charges with two heads.

(Sees, 221, 222 and 223 of the Code of Criminal Procedure).
** I, F. C Chatterjee, Deputy Magistrate of Dinajpur, hereby charge
you Gul Mahomed Sircar as follows : —

First, — That you, on or about the 15th or 16 th day of January 1905, at Khayarbari, com-
mitted extortion of a muchalikti and of Rs. 25 respectively from Cheharu Mandal and thereby
committed an offence punishable under sec. 381 of the Indian Penal Code and within my
cognisance.

Secondly, — That you, on or about the 15th day of January 1905, at Khayarbari, assaulted
Cheharu Mandal and thereby committed an offence under sec. 352, I. P. C, and within my
cognisance/^

The said Deputy Magistrate found that the Petitioner committed extortion of Rs. 25 fiom
the complainant and that he assaulte I him. He convicted the Petitioner under sees. 384 and
352, 1, P. C, and sentenced him to two months' rigorous imprisonment under the former sec-
tion and to pay a fins of Rs. 50 ualer the lattor section and in default of payment to undergo
one month's rigorous imprisonment.

It was contended (i) that the joinder of the extortion of the bond with the subsequent
extortion of a sum of money was bad in law ; (U) that the joinder of charges of three matters
not forming part of the same transaction was contrary to the provisions of the law, and (Hi)
that taking the money, when the fear the accused was said to have been put to could no
longer be said to be operative^ was not extortion^

The terms of the rule will appear from the judgment. The Magistrate in explanation
sabmitted that the charges arose out of one and the same transaction and that taking the
money on a bond which was extorted, did constitute extortion.

As a retrial was thought fit and proper their Lordships did not discuss the second and
third grounds of the rule, but proceeded to make the rule absolute on the fii*8t ground alone;

Babu Dasarathi Sant/al for the Petitioner.



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142 The Criminal Law Journal Reports. - {Vol; HI

BHOLA NATH DEY r. EMPEROR*

The Judgment of the Court was as follows : —

The Petitioner was tried and convicted under sec^. 384 and 352, I.
P. C, and in the charge that was drawn up under sec. 384 ho was charged
as follows : That you, on or ahout the 15th or IGth day of Janni^ry 1905,
at Khayarbari, committed extortion of a muchaUka and of lis. 25, res-
pectively, from the complainant.

A rule was issued calling on the District Magistrate of Dinajpur and
on the complainant to show cause why the conviction of this applicant and
sentence on him should not be set aside and a fresh trial ordered otf the
ground that the joinder of the mucliaUka and the payment of Rs. 25 in one
charge was contrary to the provisions of the law, and also on the ground
that the joinder of the charges of the three matters charged was contrary
to the provisions of the law as not forming part of the same transaction ;
and, thirdlf/, on the ground that the payment of the Ks. 25 did not satisfy
the provisions of the Penal Code regarding extortion.

Assuming that these charges, as the Magistrate has said in his explana-
tion, arose out of one and the same transaction and that the claim for
Rs. 25 did constitute extortion, we think that the neglect to observe sec.
233, Cr. P. C, must be pronounced fatal to the case according to the
ruling, Sulmimania L/ery, The King-Emperor {1) i because under that
section there shall be a separate charge for every distinct offence.

We, therefore, make the rule absolute, set aside the conviction and
sentence and direct that this applicant be retried and the retrial be hefd
by another Magistrate.

Pending the trial. Petitioner will renr.iin on bail to the satisfaction
of the District Magistrate.

Rule made ahsolide.



(10 (\ W.X.,56.)
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

July 11 [CRIMINAL REVISION No. 554 of 1905.] 1905.

Present : — Mr. Justice Rampini and Mr. Justice Mookerjee.

BHOLA NATH DEY and others, — Petitioners,

Versus

EMPEROR,— Opposite Party.

Criminal Procedure Code (Art Vof 1S9S)^ jt. 470 — Ohatruction to attachn^ent hij j)eoA in
irursuaKce of w.irrant of attuchiwitt — Ordpr of pros?cution by Mumif — Judicial' proceediM{f,

On the application of a decree-holder a Munsif issued a warrant of attachment. The
judgment-debtors with soveral other-} prevented the attachment, beat the decree-bolder,
(1) 5 C. W. N. 860 ', S. C. I. L. R. 25 Mad. 61 (1901).



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Vol. Ill] The Criminal Law Journal Reports. 143

BHOLA NATH DEY r. EMPEROR.

and threatened to beat the peon. The peon reported the matter to the Munsif and the decree-
holder also complained before him. Upon this the Munsif enquired into the matter and acting
under s. 476, Cr. P. C, directed the offenders to be prosecuted under s. 183, 1. P. C.

Held — That the Munsif had power to direct the prosecution as he did. He was engaged
In a proceeding in an execution case, that such a pi-oceetling was a judicial proceetling ; and
that the facts had come to his knowledge in the course of such proceeding.

The facts of the case are sufficiently stated in the judgment.

Babu Mohini Mohan Chatterjee for the Petitioners.

No one appeared to show cause against the Rule.

The Judgment of the Court was as follows : —

This is a rule calling upon the District Magistrate of Bankura to show
cause why the conviction of and sentence passed upon the applicants
should not be set aside, on the first two grounds mentioned in the applica-
tion, or why such other order should not be passed in this matter as to this
Court may seem fit.

The facts of the case are these. The decree-holder applied io the
Munsif of Khatra for execution of a decree by attachment of the moveable
property of the judgment-debtors. The Munsif issued a warrant of
attachment ; but, when the decree-holder went to seize the property, the
judgment-debtors and several other persons turned out, prevented the
attachment, beat the decree-holder, and threatened to beat the peon, who
ran away. The peon then reported to the Munsif that he could not execute
the warrant ; and the decree-holder came to the Munsif and complained
of non-execution of the warrant. The Munsif enquired into the matter
and made over the present applicants to the Honorary Magistrate of
Bankura under sec. 476, C. Cr. P. They were tried and convicted.

The applicants have now obtained a rule to show cause why the con-
viction and sentence should not be set aside on the ground, /?r.s^, that there
had been no sanction to prosecute on the conn)laint of any one, and,
secondly^ that the Munsif was not justified in directing the prosecution of
the Petitioners under sec. 476, C. (>r. P., because he was not engaged in
a judicial proceeding. In support of the second of the above two grounds
the case of Har Cliaran Mukerjee v. The Kimj- Emperor (1) has been
relied upon.

We are of opinion that the Munsif was justified, in the circumstances,
in proceeding under sec. 47G, C. Cr. P., and that the facts did come to his
knowledge in the course of a judicial proceeding. He was engaged in a
proceeding in an execution case, and a proceeding in an execution case is
undoubtedly a judicial proceeding and every order passed by an officer in
such a case is subject to an appeal or second appeal ; which would not bo
(1) 9 0. W. N. 36* : s. C. I. L. R. 32 Cal. 367 (1005).



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144 • The Criminal Law Journal Reports. [Vol. Ill

SOURENDRA NATH MITTRA r. EMPEROR.

the case if the proceeding was hot a judicial one. We consider that the
case of Har Charan Mukevjee.x. The King-Kmperor (\) \<> owWyoXx Ai^
tinguishable from the present case. In the case ctted by the pleader for
the applicant it was held that the Munsif had passed an order for posses-
sion, which finally determined the case. The present case is quite
different.. In the present case the matter came before the Munsif in the
course of an execution proceeding. Tliere were money matters which
had to be determined by the Munsif and upon which evidence could be
taken ; and therefore the execution case was not finally disposed of.

We see no reason, therefore, to interfere in this case ; and we dis-
charge the rule.

Jhtle discharged.



(10 r. W. X, 153,)
IN THE HIGH COUUT OF JUDICATURE AT CALCUTTA.

July U [CRIMINAL APPEAL No. 411 of 1005.] 1905,

Present : — Mr. Justice Pratt and Mr. Justice Pargiter.

SOURENDRA NATH MITTRA,— Appellant,

Versus

EMPEROR,— Respondent.

Trial hijjury — Misdirection— Jury not warned that statement of one accused wj* not to
he used against his co-accused - Omission hy Judye, while stating his own opinion, to tcU the
jitry that they cvuld droiv their own indejtendrnt concl aliens from fads Conduct of a brother
of the accused^ evidence of — Admissibility.

An omission to warn the jury that the statement of one accusal is not to ))c useil against
his co-accu8e<l is a material error and misdirection, fatal to the trial, althoutrh the Jmige deals
separately with the evitlence against each accuscnl.

While the Judge is entitled to state his own oi)iiiion to the jury it is advisable thai he
should guard himself by indicating clearly that the opinion is his own, and that the jurj' «re
entitletl to draw their indei)endent conclusions upon the facts.

Where there was nothing beyond surmise to indicate that the souive of knowle<lgc of the
brother of the accused was necessarily derived from the accuscMl anil that he liad not actetl
entii'ely upon his own initiative and without any suggestion from the accused, the evidence
pi'OTing his conduct as against the accusetl was onlere^l to be eXcludeil u^wn the trial of
the case.

The factii alleged by the prosecution were briefly as follows : —
Boui*endra >>'as branch postmaster of Kulingram bmnch post othce and the accusotl Be^>in
was postman or j)Ostal peon at that office. J'he village of Terapura was served by that oftice.
Jonab Ali was a native of Terapura and worked for some years at Thayetmyo in Burmah. He
returned home fi'om there in Ashar (June, July) last. When leaving Thayetmyo he left his
savings amounting to Rs. 20<) in the hamls of AbduUa Mistree to bcTcnnittetl to iiim. On the
13th July Abtlulla Mistree despatched from Thayetmyo a money order for lis. 100, that money
onler reached Kulingi-am on the 20th July and the accused Sourendi-a was siipplitnl with fmuls
sufficient for the l)aymeut of that and other money order. The money was not paid to the



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Vol. Ill] The Criminal Law Jourkal Reports. 148

SbURENDRA NATH MITTRA r. EMPERORI

person for whom it was iiiteiulcfl, but the money order form was rctumetl as i»icl, ami the
amount was shown in the <laily account of the 21 st July in the handwi-itihg of the accuKoil
Sourendra as paid The certificate of i^ayment on the money order foi-m bears a signature
said to be that of the accu%d Bepin and the acknowledgment |)ortion purports to be signc:!
by one Jonab All although Jonab All for whom the money wa? intended was, it was allegetl,
HKterate. This wjw returnc 1 to the remitter whose suspicions were mus3<l by the signature.
He sent an uurc3istero<l letter to Jonab Ali but got no reply. Jonab AM says lie did not
feoeive this letter. On the 27th August Ab.lulla sent a registered letter from Thayetmyo
acktressed to Jonab Ali. That registerel letter reached Kulingram on the 2nd September, It
was not delivered to Jonab Ali although it was alleged that Jonab Ali was at home at that
time. That letter remained at the Kulingi-am |>ost office till the 10th September.

In the meantime the remitter Abdulla had made a complaint at Thayetmyo post office
which was forwarderl to Kulingram for report and reached Kulingram on or about the 11th
September. After that on or about the 14th Heptember the accusal Bepin ten<lerod Rs. ICKK
to Jonab together with a receipt on plain ))a))er which he asked him to sign. This time Jonab
had heartl from the remitter by another channel, an<l was aware that a complaint had been
made. Under the circumstance Jonab declined to receive the money or sign a receipt not in
the propter form.

On the following day it was allegeil Amarendra Nath Mittra a brother of the accused.
Sourenilra and a muktear, sent for Jonab ami triczl to induce hku to receive the money but
he refused to do so.

On the 16th September the rcgistereil letter above referred to was returned from Kulin*
gram post office to Cbouthkhanda post office witii a report that it was refused by the addressee,
hot it was alleged that the envelope in which it was returned was not the envelope in which
it had been sent to Kulingram, as it di<l not bear the stamp of the Thayetmyo registration



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 41 of 91)